Simpson & Marwick: Personal injury claims in the workplace | Lynne Macfarlane

Simpson & Marwick

 

Personal injury claims in
the workplace

It’s best to avoid workplace accidents altogether, but not even the most health and safety conscious business can hope to entirely eradicate them. Once an accident occurs, investigation is required, and that is the focus of this article.  How do you ensure impact on profitability is minimised? How do you guarantee the best possible bundle of information is gathered in to enable any claim to be robustly defended, should it reach court?

Here are some suggestions from someone who is instructed to defend workplace claims, but often finds that a defence cannot be maintained because of failures in the immediate investigation process.

Leader of the Investigation
Make sure you identify and instruct someone within your organisation to deal with reporting and investigating accidents. That might be you, or your health and safety officer, but whoever it is must be organised, calm in a crisis and good at retaining and filing documentation. They should be allowed the time to investigate any accident thoroughly, and provided the resources to ensure all potential lines of enquiry are completed. They should also be entirely objective.

Speed of Response
Contemporaneous evidence is usually viewed by the court as the “best” evidence. In other words, evidence obtained at or about the time of the accident is generally more reliable. When an accident occurs, the speed of your response is critical. If the person injured is able (and willing) to speak, find out directly from that individual how the injury was sustained. Speak immediately to any witnesses. Don’t allow anyone to interfere with the scene of the accident. Take photographs if at all possible. If you are lucky enough to have CCTV footage of the accident, secure it immediately.

Document Retention
If you intend to argue that the injured employee failed to follow procedure, then you must be able to produce documents to establish that there was a procedure in place. If you can produce documents to confirm that the procedure was communicated to the injured employee, and understood, your defence will be strengthened. Make sure that the relevant risk assessment or method statement retained is the one relevant to the date of the accident – often, risk assessments are over-written without retention of the original.

Reporting
You must complete an accident book entry. The absence of an entry, or any report of the accident by the injured person to someone in the business, can often be fatal to a claim. A report to the Health and Safety Executive may also be required. Also, don’t forget to notify your insurers: there is usually a provision in your policy that requires immediate notification of any workplace accident likely to result in a claim.
Preparation in the anticipation of a workplace accident is the first step to being protected against a courtroom crisis. Act now so you don’t have to pay later.

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