Case studies on successful claims for the category of personal injury that most affects foreigners in the UK
07 July 2011. Personal injury claims usually fall into one of five categories – accidents at work, road traffic accidents, accidents in a public place, industrial disease (an illness caused by your working conditions) and medical negligence. In all of them, the basic principle is the same – you have suffered an injustice due to the negligence of another person and the law entitles you to seek compensation for that injustice. If you are successful in your claim, it is usually paid for by the insurers of the person who caused you harm.
However each of the subcategories can have vastly different characteristics and we will take a closer look at each one in terms of factors affecting the legal process and ways in which you can help with your own claim.
Today we will start with the category probably affecting more foreigners in the UK than any of the others – accidents at work.
A legal duty Employers have a legal responsibility to protect their employees from accidents and illnesses arising from their work environment. Illnesses such as asbestosis or repetitive strain injury are categorised as ‘industrial disease’ (even though they are just as possible in an office as in a factory) and will be covered in a later feature.
Accidents at work last year caused 152 deaths, 26,061 major injuries, and a further 95,369 injuries that led to more than 3 days off work (Health and Safety Executive report 2009-10 (http://www.hse.gov.uk/statistics/overall/hssh0910.pdf). In the same period, 15,881 enforcement notices were issued for breaches of health and safety legislation and a total of £13.7m issued in fines.
In a very recent case, our client was not sure if they could make a claim because their employer had forced them to sign a contract saying they waived all rights to claim in the event of an accident. This was an abhorrent attempt to cheat workers out of their rights and we soon informed them that it is not possible to contract out of a legal duty of care such as the one employers have towards their employees. This clause in their contract was therefore meaningless – other than it showed the employer either didn’t understand the law or was especially devious in how they treated their staff.
First things first One of the first things you should do after an accident (having ensured your wellbeing of course), is to gather as much evidence as you can. Most people carry a phone with a camera and if possible you should use one to take photos of the scene of the accident. If anyone witnessed the accident, make a note of their full names and, if possible addresses. This may seem unnecessary if they are work colleagues but depending on how long before the case goes to court (you have up to three years to make a claim), you could be very grateful that you thought to take these measures if one of the witnesses has since left the company.
One client that came to Hamilton Brady had already tried to make a claim through another solicitor. They were unable to accept it as she had no witnesses at the time and her employer had the uneven floor in the warehouse that caused her accident repaired before denying that it had ever been uneven. Luckily two of her colleagues subsequently came forward to say they would testify for her, and one of them had taken photos of the uneven floor before it was repaired. These factors enabled another solicitor to accept her case and commence legal proceedings.
The lady’s colleagues had previously been unwilling to come forward because they were afraid of losing their jobs and for the same reason many people are hesitant to make a claim against their employer. In fact, employers are not allowed to dismiss you for making a claim and if they were to do so you would have an additional claim for further compensation arising from unfair dismissal. Even if they don’t dismiss you directly but make your working conditions so difficult that you feel obliged to leave then you would have a case for constructive dismissal.
Keep a diary Besides documenting the circumstances of the accident you should also keep a detailed record of the consequences of the accident – any correspondence between you and your employer (including that relating to time you may have to take off due to your injury), any pain you suffer and receipts for any expenses incurred, including travel expenses to receive medical treatment and any personal property such as clothes that were damaged by the accident. If someone is helping you recover from your accident then keep a diary of how much time they spend looking after you. If your claim is successful then your solicitor will be able to recover all these costs for you.
Make your concerns heard (and noted)
A common feature that we see time and time again in workplace accidents is where a potentially dangerous situation was reported to the employers but no action was taken. If an accident takes place because of factors that had previously been reported, then this greatly increases the likelihood of the employer being found by a court of law to be at fault. Therefore if you have concerns about potential accidents at your workplace, you should report these to your manager, and ensure that your concerns are recorded and witnessed – ideally you should use your company’s official reporting process but if you do not know what this is or if there isn’t one, even an email would be better than not reporting it.
A client of Hamilton Brady’s suffered from a cut hand and back pains after unsecured shelves in a wine cellar fell on him whilst he was fetching some stock. He had warned his manager on several occasions that the shelves were not stable but no action had been taken. Having reviewed the case, our solicitors strongly believe he had a valid claim, especially because no action had been taken following his previous warnings about the shelves – and he had witnesses to his conversations with the manager.
Don’t leave it too late Unfortunately this particular client was not able to proceed with his claim. Although it was considered a strong claim in every other respect, it took place 4 years prior to them consulting with our solicitors. English law places a time limit of 3 years on accident compensation claims and the client was not aware at the time of his right to compensation – although he felt aggrieved by the situation he thought it was just one of life’s misfortunes and all he could do was get on with his job.
Should you make a claim? This is an attitude we see again and again with our foreign clients – an acceptance of what has happened and a determination to carry on with your job. It is highly commendable yet the fact is that if your employer was at fault for your accident then there is no reason why you should not claim what you are entitled to. The compensation would help you recover and take the necessary time off work – if you rushed back to work after a serious accident because you need the income and before you have completely recovered, then this could have serious implications for your long term health.
A successful claim would force your employer to rectify the situation that led to your accident. Those unstable shelves would be fixed immediately. A hazard warning sign might be erected where one was needed. Further health and safety training might be provided to other colleagues who work in a similar situation. The list goes on…
Last but not least it is rarely your employers who actually pay out on a claim. All employers are required by law to carry insurance against workplace accident claims, and it is the insurers who will face (and possibly dispute) your claim. The insurers have significant legal resources available to them, but as long as you have a genuine claim where your employer is at fault and even a half decent solicitor on your side, then the most expensive lawyers that the insurers can afford should not triumph against the facts and the rule of law.
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You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Hamilton Brady for a Consultation with a Solicitor on 0844 873 608.