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.


Section 8 Notice or Section 21 Notice? image

Section 8 Notice or Section 21 Notice?

There is one question a lot of landlords have asked us over the years and that is “What is the Difference Between a Section 8 and Section 21 Notice?”.

The most basic difference between a section 8 and section 21 is that a section 8 notice is served when a tenant is in breach of contract (eg rent arrears), and a section 21 is served to end a tenancy agreement, simply so that the landlord can regain possession.

A section 8 notice, or notice to quit as it is also commonly known as, is so called because it operates under section 8 of the Housing Act 1988. A section 8 notice is served on the tenant by a landlord wishing to regain possession of a property during the fixed term of an Assured Shorthold Tenancy (AST) when the tenant has broken the terms of the tenancy. You can give between 2 weeks’ and 2 months’ notice depending on which terms the tenant has broken.

Once the period of notice has lapsed and the tenants have not vacated then you can apply to the court for an Order for Possession.

If you need help in completing a Section 8 Notice with the correct notice periods and/or assistance with the grounds for possession then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to assist you with this.

With respect to a Section 21 notice, you can use this notice to evict your tenants either after a fixed term tenancy ends - if there’s a written contract, or during a tenancy with no fixed end date - known as a ‘periodic’ tenancy.

Section 21 Notices are only for use when the prescribed documents have been served on the tenant at the start of the tenancy. You cannot use a Section 21 notice if you have not given the tenants copies of:
• the property’s Energy Performance Certificate
• a current gas safety certificate for the property - You must have given the tenants a copy of the current gas safety certificate before they moved in.
• the government’s ‘How to rent’ guide
You are also required to secure the tenant’s deposit in a Tenancy Deposit Scheme. This government-backed scheme ensures that the tenants get their deposit back at the end of their tenancy, so long as they have not damaged the property, have met the terms of the tenancy agreement and have paid all their rent/bills. You must ensure that such a deposit is put in a scheme within 30 days of its receipt and provided the information of where it is secured to the tenant. Failure to secure a tenant’s deposit will invalidate a Section 21 Notice.

You are also unable to use a Section 21 Notice if it is less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this.

If the tenants do not leave by the specified date then you can apply to the court for a Possession Order. You may wish to use the accelerated possession procedure if you are not claiming rent arrears as generally this route is quicker than applying for a standard possession order and there is usually no hearing involved.

If you want to claim rent arrears then you may either use the standard possession route or use the accelerated possession procedure but then make a separate claim for recovery of the outstanding rent.

The decision as to whether or not to use the section 8 or section 21 route is complex and we would recommend a landlord seeks early advice as to which mechanism to use.

If you require more advice and assistance on Section 21 Notices or which possession proceedings route would suit you then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to help.

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