Accidents at Work

Workplace accidents can occur in any work environment. Somework places are potentially more dangerous than others, but they all pose arisk. Since the mid-1980s there has been a steady decline in the number ofaccidents at work but despite this there were still 144 work related deathslast year. The majority of these occurred on construction sites and most of thosewere falls from height. There were a further 600,000 non-fatal injuries for thesame period.

If the employer is at fault then the injured worker may havea claim. The purpose of this article is to set out the basic features of a workrelated accident claim.

Who is to blame?

An employer has a legal duty to ensure the reasonable safetyof his employees. This includes:

·        Providing a safe work environment

·        Reducing the risk from potentially hazardoustasks

·        Ensuring colleagues are competent

·        Providing adequate training

·        Assessing potential risks and monitoring compliance.

Depending on the type of work involved many of these areaswill often cross over. For example a scaffolder working in the winter nearoverhead power cables presents a number of potential hazards including:

Fall from height

Freezing injury

Electrocution

The employer must in these circumstances provide adequatepersonal protective equipment, appropriate harnessing or means of arresting afall, be able to produce a risk assessment demonstrating  that consideration had been given to safe distances to work from the powercables and show that the worker has received adequate training.

The risk assessment is often the most contentious documentin work accident claims. All too often the employer or his manager carries outthe risk assessment then puts it in his file and forgets about it. If theemployer cannot show that he followed up on the risk assessment by properlymanaging the task he will probably be found liable for any subsequent accidentarising from the assessed risk.

Vicarious  Liability

The actions of a negligent co worker may make the employerliable. This is important because a fellow employee is unlikely to have anypersonal insurance cover.  It iscompulsory for an employer to have such insurance. Despite an employer/managerhaving done all that could be reasonably expected in terms of training,provision of equipment and risk assessing etc he may still be liable for thenegligent acts of a co worker even though there was little the employer coulddo to prevent the accident.

“Horse play” often features in these types of claims ,(particularly nasty injuries can be inflicted with compressed air hoses). If theincident is deemed to be outside the normal course of employment the employerwill avoid liability.

ContributoryNegligence-did the worker add to the problem?

An employer may often argue that the worker was responsiblefor his own injury because he did not comply with instructions and took on therisk despite warnings. If the worker is deemed to have contributed to his owninjury then his compensation will be reduced by an appropriate percentage.

However the courts will look at all the circumstances beforemaking any deduction. Opening a safety grill and putting your hand near theworking parts of a machine would appear to be a classic example of whencontributory negligence should apply. However if the practice was common withina factory and either encouraged or at least tolerated by management then anyreduction is likely to be minimal or non- existent.

Employee or Sub contractor?

In these days of the gig economy the division between self-employedcontractor and employee can often seemed blurred.  Jobs that were once undertaken by employeeson full time contracts are now often undertaken by self- employed minimum hourscontractors.

A negligent employer who is able to demonstrate that aninjury occurred to a self employed sub contractor may escape liability.

Fortunately the courts have consistently ruled that you mustlook behind what any written contract may state and instead look at all thecircumstances. That is why the regulations and Acts of Parliament refer to“workers” rather than employees. The starting point is who has “control”. If acontractor can turn up to work when he wants, work as many hours he likes or sendsomeone to work in his place then he is probably self-employed. If on the otherhand the contractor can do none of the above but is paid a gross salary and isresponsible for deducting his own tax, then he is likely to be a worker despitethe written contract stating otherwise

The vast majority of employers are conscientious and awareof their duties which they carry out with admirable skill and care. Those whoare not can expect little sympathy and deserve none.

Tim Quinn is a Partner at Howard and Over and is Head of the LitigationDepartment.

If you would like to discuss a claim with Tim he can be contacted on01752 556606.