Personal Injury Claim at Work

19th February 2014
Personal Injury Claim at Work image

Personal Injury Claims At Work

Introduction

There has been a recent fundamental change to workplace accident claims, brought about by section 69 of the Enterprise and Regulatory Reform Act 2013 (“Section 69”). 

In respect of accidents at work occurring from 1st October 2013 onwards, civil liability will no longer arise for a breach of a work place regulation (even though criminal sanctions will remain in place for such breaches). 

It is felt that this provision will have a major impact on the prospects of an employee succeeding with a claim against his/her employer. 

The law regarding accidents pre-1st October 2013

Until 1st October 2013 the employee’s solicitors would usually claim that the employer was in breach of a statutory duty under the various work place regulations.  As none of the commonly claimed regulations excluded civil liability, a breach would give rise to liability.  In respect of some regulations a breach could occur without proof of fault on the employer – ie liability was strict.  In respect of other regulations the employer’s duties to the employee were qualified by what was “reasonably practicable”. 

Section 69 has reversed this presumption so now there will be no civil liability arising for a breach of a statutory duty unless the relevant regulation provides for it.  Again the most commonly used regulations do not provide for such liability. 

Impact on the “Six Pack” and other work place regulations

The most commonly referred to regulations in these sorts of claims are often referred to as the “Six Pack”.  These are as follows:-

(i)        Provision and Use of Work Equipment Regulations 1998 (“PUWER”).

(ii)        Management of Health and Safety at Work Regulations 1999.

(iii)       Workplace (Health, Safety and Welfare) Regulations 1992.

(iv)       Manual Handling Operations Regulations 1992.

(v)        Health and Safety (Display Screen Equipment) Regulations 1992 and

(vi)       Personal Protective Equipment at Work Regulations 1992.

Save for very limited exceptions, none of these “Six Pack” Regulations carry the express provision that breach gives rise to civil liability on the employer. 

Currently Court cases dealing with the law change are thin on the ground but Daven Naghen, head of our Personal Injury Department, feels the changes will make it harder for an employee to bring a successful claim.  Grant has commented as follows:-

“Let’s say for example prior to the 1st October 2013 there was a claim under PUWER Regulation 5 that the employer has not maintained work equipment in an efficient state, in efficient working order and in good repair as a piece of “defective” equipment has caused an injury to an employee.  This regulation/duty is not qualified by questions of what steps it might have been practicable for the employer to have taken, so the duty is absolute.  If the equipment is proved to be defective, notwithstanding any claim that the employer has a very good maintenance program in place, then the employer would be held liable for the injuries caused to the employee by the defective equipment. Now under the new law for accidents from 1st October 2013, if it is the case that no reasonable maintenance program etc would have prevented/highlighted the defect – then it is likely that the employer will not be liable.  Under the current law the employee is only likely to win if it can be shown that there has been negligence on the part of the employer. 

Now it will no longer be appropriate for the Claimant’s Solicitor to rely on a breach of statutory duty, but I think the Claimant’s Solicitor will still refer to the relevant statutory provision as a marker for the standard of care expected and as a marker as to whether the employer has been negligent.  In short the breach of a statutory provision might be good evidence of negligence, and it is now negligence which the employee/claimant has to prove on the part of the employer.”

Exceptions/exemptions

There are some exceptions to the new rules for the exclusion of civil liability for breach of a statutory duty, which relate to pregnant workers and workers who have recently given birth or are breast feeding.  Public sector workers may also enjoy a higher level of protection.

Need advice?

If you are an employer needing to defend a claim, or an employee wishing to bring a claim and you need advice, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or write to Grant c/o 23 New Road, Spalding, Lincolnshire PE11 1DH.

In most cases Dav will be able to offer you an initial free half hour interview.


Property Protection Trusts image

Property Protection Trusts

Property Protection Trusts and Protecting your Property from Care Home Fees

Many people are concerned that as they get older, they may need to move into a care home and the cost of such care can be very expensive. Many people are therefore looking for ways to protect their assets from care home fees.

In recent years “Property Protection Trusts” have been promoted as being the failsafe, guaranteed way of protecting your property from care home fees. Many companies promoting such trusts are unregulated and their products such as Property Protection Trusts are being promoted and sold by sometimes nothing more than a very persuasive salesperson.

It is likely that your home is your largest asset and you should be very cautious before making any decisions with regard to your largest asset and the roof over your head. Indeed a Property Protection Trust may not even protect your home from being sold to pay for care fees or could cause tax implications and therefore it is very important that you take advice from one of our lawyers before making any decisions with regard to such Property Protection Trusts.

These Trusts can be brought to people’s attention either from cold calling, arranging home visits and sometimes even from kiosks or stalls in public areas. The people “selling” Property Protection Trusts to you can be very persuasive and may not be providing you with correct information or all of the information you should have before making a decision regarding your property. Their fees are often excessive.

In some cases, these companies even offer Lasting Powers of Attorney at what they claim to be a reduced rate. People should take caution as these “cheap” Lasting Powers of Attorney often result in being more expensive than our own charges and the companies involved often do not provide the correct advice or the necessary advice for you.

If you have been contacted by someone discussing Property Protection Trusts and would like to discuss this further with one of the lawyers in the Wills and Probate Department of this firm or you have already created a Property Protection Trust but would like to take further advice then please contact one of our lawyers in the Wills and Probate Department:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team.

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Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!