Duty of Care
At the centre of any employer’s liability claim is an employer’s duty of care. Under the common law and statutory obligations, your employer is required to take reasonable steps to ensure your health, safety, and welfare whilst you are at work.
Key aspects of this duty may include the following:
- Providing a safe working environment
- Maintaining safe systems of work
- Implementing and enforcing policies and procedures that promote safety
- Ensuring that adequate training and supervision for staff is in place
- Supplying and maintaining suitable work equipment
- Undertaking necessary risk assessments
Causation and breach
In order to establish liability in an Employer’s Liability claim, a claimant must prove a breach of this duty and causation. This means that the employer’s failure led to the injury or injuries that they have sustained.
To be successful, it will be necessary to show whether the employer acted reasonably under the circumstances and whether a claimant’s injury/ injuries were a foreseeable result of the breach.
At Moore Barlow, we have successfully been able to establish liability in a number of claims concerning an employer’s failure to take care, for example, where a lack of manual handling training, a lack of appropriate equipment and a lack of a ‘two-person policy’ all led to a serious nerve injury (brachial plexus injury). In this example, we pleaded that there should have been proper training and a two-person policy for the task that our client was engaged in. This is because the task concerned moving and transporting an awkward and heavy load and as such, posed a high risk of injury if done alone.
In circumstances where liability may be denied for an accident, we would expect an employer to be able to provide relevant documentation to indicate that they had taken reasonable steps in the circumstances. This may include the following: –
- An accident report
- RIDDOR report to the Health and Safety Executive (HSE)
- Records of any previous complaints or similar incidents
- Pre- and post- accident Risk Assessments
- Relevant and adequate training documents
- Repair and maintenance records
- Health and safety policies/ Manual handling policies
A failure to be able to provide such documentation, could be a good indication that they have breached their duty of care.
Regulations and the Enterprise and Regulatory Reform Act 2013
Various statutory regulations may play a role in helping to determine liability, for example, the Management of Health and Safety at Work Regulations 1999 and the Provision and Use of Work Equipment Regulations 1998 (PUWER), among others, lay down specific obligations for employers.
However, the impact of the Enterprise and Regulatory Reform Act 2013 (ERRA), now means that a breach of these health and safety regulations no longer gives rise to automatic civil liability, making it necessary for claimants to prove negligence i.e., that an employer has failed to take reasonable care, rather than relying solely on a statutory breach.
The impact of the ERRA has therefore shifted focus to proving common law negligence. This means that a careful analysis of the facts and available evidence in each case is crucial in order to successfully establish liability.
Contributory negligence
Employers may be able to reduce their liability if the injured employee is found to have contributed to their own injury. This is known as contributory negligence and can result in a proportionate reduction of any damages awarded. An example may include a failure of the employee to follow the training information provided or certain policies. This can be an important factor used in the Defence strategy, but it does not usually mean that the Employer is absolved of all responsibility and there may still be a valid claim.
Time limits and limitation periods
Claims must usually be brought within three years of the date of the accident or when the employee first became aware of the injury (the “date of knowledge”). There may be certain exceptions or certain considerations to this rule, for example, if a claimant is a minor or lacks mental capacity or for certain diseases/ conditions with delayed onset.
How Moore Barlow can help
Employers’ Liability claims can be complex and are often fact specific and therefore need careful analysis.
We are passionate about achieving the best outcomes for our clients and ensuring that they have early access to any rehabilitation that they may need. If you require legal assistance or would like to discuss a potential claim, please contact our specialist Serious Injury Team on 0800 157 7611 or claim@moorebarlow.com.
