NORTHERN IRELAND SAFETY GROUP
Meeting held on Monday 18th May 2009
at the King’s Hall Conference Centre, Balmoral
1.In attendance
As per Attendance Book
2.Apologies
Ken BlairMCB
Beth GibbBeth Gibb Associates
Geoff GillanUniv Ulster
- Chairman’s welcome
Chairman Nicky Bell welcomed everyone to the meeting and remarked on the large number of attendees.
She asked everyone to turn their mobile phones off or to silent and explained the emergency procedures.
There were two guests at the meeting - Conor Wilson from Lockton and Jim McCurry from Lisburn City Council and the Chair welcomed both.
4.Minutes and matters arising
There were no matters arising from the minutes and they were proposed as a true record of the last meeting by Ken Blair and seconded by David Cooke.
5.Announcements
The chair made mention of the latest edition of ‘Safe & Sound’ which had articles on both Swine Flu and the first Corporate Manslaughter prosecution.
6.Presentation
The Chair welcomed Sandra Crothers from Harrison’s Solicitors and Sandra took the floor.
Sandra outlined that she was going to talk about defending a civil claim and began her presentation by defining a civil claim. She indicated that in general it is a claim brought by a party seeking compensation for personal injury and/or loss and damage.
Civil law existed to protect the right of the individual whilst criminal law existed to protect public interest and punish wrong doers.
There was a different standard of proof required for each with civil being on the balance of probabilities and criminal being beyond a reasonable doubt. In civil law it is up to the plaintiff to show that on the balance of probabilities an accident occurred because the employer’s duty of care had failed and it is up to the defendant to rebuff this.
Following this Sandra showed the latest statistics on Civil Bills and Writs being issued, the number of incidents being reported to the HSE and the number of days lost due to workplace injury. She also pointed out that these figures didn’t included cases settled by insurance companies.
Sandra pointed out that the hidden costs – time/research/person’s absence/retraining and contractual penalties - were non recoverable and that avoidance is the best situation to have.
Statistics were also available on the percentages of claims with 35% being attributed to machinery, tools and materials (inadequate guarding, non use of safety devices and improvisation etc), 21% for slips trips and falls (untidy work/spillages/lack of lighting etc), 15% for being struck by an object or person (moving vehicles/collapsing shelving/falling tools etc), 12% for lifting and 5% for use of ladders.
Next she indicated that here are four key areas pre incident which are of importance and these are
Safe staff – Which should include proper induction, proper training, training being signed off; recording to assist both parties; instructions to be confirmed in writing and the importance of a document audit trail. The documentary evidence should support both sides.
Safe equipment – As highlighted by Stark v Post Office when a bike used for delivering letters was ruled as not being maintained.
Safe Place of work – With the most common being lack of designated walkways
Safe Systems – The paper trail is of critical importance. If a system is in place it must be enforced. If it hasn’t been it is hard to defend against. The review and audit process is also important as is keeping abreast of the latest CoP’s. Monitoring and inspection will assist a defence as will internal and external auditing.
Post incident has also a number of key areas which should be addressed. It is advisable to approach an accident with an open mind. The accident report form should be created at the time and will act as a contemporaneous record. It needs to have a good layout and a general template (tick box format) isn’t ideal. Witness comments need to be recordedand the document needs to be an accurate reflection of the accident.
RIDDOR is important and should be used.
Notification to Broker at this stage is very important. It is the broker who will decide if the insurance company should be involved.
The investigation should be carried out by one person, looking at the why, where and when. Witness statements are vital. If they can’t be written then take notes of what was said and get these signed and dated. It is also important to get correct names and addresses. Photographic evidence is very helpful as well as CCTV footage. CCTV footage showing nothing happening can be as helpful as showing something that did happen. Photographs are a great source of getting to the truth quickly. Finally the examination of equipment is also important.
Collation of documents such as training records or risk assessments is a great time saver. It can also act as the data needed for taking preventative action.
Disciplinary action is also something that should be followed through if there is a breach of Health & Safety policy.
Finally, helping the employee back to work will save time, save money and reduce your insurance premium. The sooner the employee is back to work the better.
Post letter of claim – The letter will detail the facts. The insurers have 21 days to respond to the letter and then a further 3 months to investigate or settle the claim.
The broker/insurer should be notified immediately and this followed up in writing. It is also important to ring the broker/insurer to make sure they have the documents. Also it is important not to reply to a solicitor’s letter.
The insurer will look for a range of documents (RIDDOR/Training Records/Written Instructions/Risk Assessments/Health & Safety Minutes/Job Description/Product Data/Wages Information) and these will need to be collated as soon as possible.
The insurers will take a view and if they feel it necessary instruct solicitors; further information maybe required such as site visits and experts may need to be engaged.
The faster this can be completed the greater the reduction in costs. The pre-action protocol was brought in to speed things up and to make the process less adversarial. It should place both parties in a position to settle rather than litigate.
Sandra then went on to talk about the court process. The County Court has a £15k limit but speculation is that this will rise to £25k or even £50k by September.
County Court claims are dealt with more quickly (40 weeks) as opposed to 100 weeks in the High Court.
A civil bill has little information on it.
Discovery of documents (including records) is important. Failure to supply a lawyer with a document makes it look as if there is something to hide. Signing affidavits is to be treated with caution as it is similar to giving evidence.
Throughout the consultation process it is advisable to raise questions and seek advice.
As previously stated the writ of summons in the High Court is much more detailed than a civil bill and will outline the breach of statutory duty. The lawyer will lodge a defence. There is no maximum limit for fines in the High Court.
There is a first review in the High Court at 9 months. It is designed to progress the case. Like the County Court there is a consultation process.
Sandra then went on to outline some of the fraudulent claims that were becoming more prevalent due to the economic downturn and the need for people to get money.
Early investigation is important. The facts will be fresh and everybody can act quickly.
Lawyers look for little discrepancies and Sandra outlined a case where a person had successfully been awarded 23 claims for road traffic accidents. She stated that the reason they didn’t get caught was that they weren’t greedy and it was small amounts.
There is also an increase in the number of people who will act as witnesses for friends and often it is only when one party feels that this is unfair and tells the truth that the real facts can be got at.
In summary Sandra said it is possible to defend civil claims and to manage claim costs. It is important to decide which ones to fight (namely the ones that are winnable). A successful defence is dependant on evidence pre accident, throughout investigation and collation of documents, working with the lawyers (not against them) and by seeking advice early if necessary.
She finished her talk with the maxim “Hope for the Best and Prepare for the Worst”.
Following a Q & A session the Chair thanked Sandra for her presentation.
- A.o.B.
As there was no other business the chair closed the meeting.