Accidents at Work

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

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

Who is to blame?

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

·         Providing a safe work environment

·         Reducing the risk from potentially hazardous tasks

·         Ensuring colleagues are competent

·         Providing adequate training

·         Assessing potential risks and monitoring compliance.

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

Fall from height

Freezing injury

Electrocution

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

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

 

Vicarious  Liability

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

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

 

Contributory Negligence-did the worker add to the problem?

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

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

Employee or Sub contractor?

In these days of the gig economy the division between self-employed contractor and employee can often seemed blurred.  Jobs that were once undertaken by employees on full time contracts are now often undertaken by self- employed minimum hours contractors.

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

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

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

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

If you would like to discuss a claim with Tim he can be contacted on 01752 556606.

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