Webinar on managing legal impact of claims
10 February 2020
In a recent webinar hosted by Health and Safety Matters, Southalls consultant Andy Hall and Kennedys Law partner James Shrimpton shared the realities of civil and regulatory actions, from defending claims to demonstrating due diligence.
THE LATEST webinar from Southalls looked at how to manage the impact of civil and regulatory health and safety investigations and was presented by Andy Hall, team leader at Southalls and James Shrimpton, partner at Kennedys Law.
According to the HSE statistics, fatality rates are generally unchanged in the UK and the main causes of these fatalities are fall from heights and workers being struck by moving vehicles. James said, “Those are the most frequent things that tend to manifest themselves both in terms of civil claims, but also when HSE becomes involved and takes things further to a prosecution. HSE will flag matters that include fall from heights, so those will be the focus of a lot their work – particularly in the constriction industry.”
Falls from heights and being struck by moving vehicles are also high up in the statistics of non-fatal injury statistics, but slips and trips are at the top of reported accidents, and Andy says that these are the areas we really need to focus on as a business to try and reduce those figures.
Looking at the latest court case headlines, there is certainly a theme of workplace transport emerging. Andy says, “It is also interesting to note that it is not just prosecutions of businesses and we can see that more directors are being prosecuted.”
Directors, manager and employees are being prosecuted under the the new sentencing guidelines, which have been around for around three years, there is a real risk of a prison sentence for those individuals, but for the company the only penalty is a fine.
There are many hidden costs that come with an investigation that can have an impact on business. Lost time, replacement labour, legal costs are some of these.
James says, “There are a number of knock-on effects from an accident – some of theme are direct costs, some of them are uninsurable costs, but there is general effect on a business. Sometimes it is very damaging for a business and sometimes it is hard for them to carry on trading. Prosecution costs are rarely covered by insurance policies, a criminal fine can't be covered by an insurance policy and criminal investigations can take several years sometimes to reach a conclusion, which leaves a real cloud and a high level of disruption hanging over individuals and the business while that works its way through.”
Reputational damage of a prosecution can have a huge damage on a business and is often overlooked. Andy says, “In a world of social media where you could have an incident on-site that can be on social media in hours – if not minutes – reporting issues. The impact of reputational damage cannot be overlooked.”
James points out that relatively speaking, the fine is a small part of the impact of an incident and a prosecution. “It's the reputational damage, the impact on the share price that can have a greater impact on the business. So that is a very important thing for a company to try to avoid in the first place and then properly manage to mitigate the effect of that.”
The webinar puts a real emphasis on accident prevention, as with every injury there can be 10 near misses, which are opportunities to stop an accident from happening. Near miss reporting is highly important as ultimately they could be stopped with near misses guiding companies in the right direction.
If an accident happens in your workplace, the way you immediately react is really important. These are the key responses that you should immediately action:
Access for emergency services
According to James, some of his clients have mock-accidents so that they can see what works and what doesn't, which has helped them manage the situation and learn how to respond in the event of a real accident happening.
When a real accident occurs, one of the things to consider is whether to invoke legal privilege, which provides a degree of protection and confidentiality over certain documents that are produced during the course of that investigation and legal advice that is provided to the company as that investigation unfolds.
If you are investigating an incident on-site there are a number of things you need to consider such as taking photographs or videos, checking CCTV, witness statements, machinery inspections and managing social media and press. James said, “Take time to go through your documents. Perhaps you can consider doing a mock exercise.”
A mock-accident can test staff response because if accidents don't happen often how do we know how people will react? Andy says, “It's really important that we look at that and we test response.”
Managing how the business responds can be quite useful, but if you don't have the health and safety documentation, procedures and training in place in the first place then that should be your priority.
Burden of proof
The burden of proof varies depending on whether you are dealing with a civil claim or from an employee or a prosecution case from the HSE.
James says,”In civil claims - claims for compensation by an injured employee – the claimant has to prove the accident occurred and has to prove a breach by the employer, which is now largely on the basis of negligence, and that is done on the balance of probability. So is it more likely than not that the matter happened as the client said it did. That is the civil standard of proof.
“An insurer will look very carefully at the strengths of a case, whether it should be compromised or defended all the way to trial because there is a substantial investment on an insurer's part in running a case to trial. If they feel a company's documents and witness evidence wouldn't support a successful defence then it makes sense to resolve that case early on.
“With contrast to the burden of proof in criminal cases, that is a higher standard of proof as it's beyond all reasonable doubt.”
However, in a lot of health and safety cases there is a reverse burden of proof. It is the duty of every employer to ensure the health, safety and welfare at work of all employees. So the HSE needs to show the employer has not done this and the burden switches to the company to show it has done everything reasonably practicable and it has to do that to the civil standard – more likely than not.
There is a myth that if an health and safety inspector comes to your site, that they need a warrant. That is not the case. They have powers to examine, investigate and test. They can ask and require you to leave a scene or machinery and they have the power to ask you questions and take copies of documents. You need to allow the inspector to get the information they need.
Safety Cloud is a flexible online health and safety management software from Southalls. The cloud-based system places all processes, policies, documents and data in a central online hub, so compliance is managed end-to-end, around the clock – via PC at head office or by mobile from a factory floor-walk. If an incident occurs you need to be able to readily access your documents.
The webinar answered live questions and gave plenty of advice for what you should do if you find yourself in a legal situation.
To listen to the webinar on demand, visit https://events.streamgo.co.uk/Impacts-of-Health-and-Safety-Investigations