Defending against a health and safety claim

As an organisation or company owner, facing an investigation or prosecution by the Health and Safety Executive (HSE) can be a stressful period, due to the fact that you are facing the potential of receiving heavy fines, penalties and even reputational damage to your business.

If you are in the situation where an individual has been injured or made ill through your organisation’s activities, you could face either a civil or criminal law suit depending on the circumstances of the incident, and it is important to note that the two are very different.

What is the difference between civil and criminal law?

Criminal law sets out with the sole aim to punish. It is commonly enforced by a regulator, in the case of health and safety it would be the HSE or Environmental Health Officers, and it deals with wrongdoings against society – e.g. leaving unsecure scaffolding in a public space.

Whereas, civil law aims to make restitution to individuals by dealing with the private rights of people and groups who decide whether to take action, when a wrong has been done to them – e.g. a staff member falling over a trailing wire within an office.

It is important to note both a civil and criminal lawsuit can be prevented by meeting your responsibilities and putting in place effective safeguards to potential hazards.

Sensible steps to avoiding a claim in the first place

Avoiding a claim is all about having robust records in place. Why? Because you can be doing everything right, but if you cannot prove that you are then a claim will still proceed. It is therefore crucial that you have:

• CCTV records – making sure that if there is an accident the CCTV footage of it has been saved before it is overwritten.
• Risk assessments – the first thing that you will be asked for after a claim is received is the risk assessment for the activity involved. These do not need to be complicated, but it is important that each member of staff covered by the risk assessment has signed it to say that they have seen and understood it.
• Training records – similarly to the previous point, in the event of an incident you will be asked for the training records. Therefore, make sure that these are kept up-to-date, and also signed by every staff member that receives it to ensure that they have understood the training.

Key tip: Every staff member should also receive induction training, which includes the risks that they may be exposed to whilst at work. In our experience this induction training is often too general and is not refreshed at reasonable periods. To address this, make sure that your inductions are role specific and updated at least every year if not sooner should any relevant changes in regulation/legislation come out.

• Inspections – specific workplace inspections should be carried out to check your organisation’s work environment. This includes general safety checks – e.g. for fire extinguishers, fire doors etc. Importantly, you need to make sure that these inspections are recorded.
• Maintenance records and equipment checks – where you have equipment that needs to be maintained make sure that you are recording these checks. The requirements of these checks will also need to link back to the relevant risk assessments.
• Meeting minutes – within every organisation there should be a method for employees to communicate with the leadership and management teams, for instance, through a health and safety employee forum. These meetings and its minutes should be recorded, and are a great way to show that you are doing the right things in the right way.

What should I do if there is an incident?

Accidents do happen, and it is important that when they do you find out what happened so that it can be prevented in the future, and also so that if there is a claim, you can defend or mitigate the consequences.

To conduct a thorough investigation, you will need to gather evidence and the following forms of evidence should be considered:

• Photographs – these are the best method to illustrate exactly what has happened, so take lots of them.
• Sketches – drawings are a useful way to detail the layout of an accident scene, and also to show the location of witnesses, equipment etc.
• Witness statements – these should be taken immediately after an accident to identify who was there, and to take their details so that they can be contacted at a later date. Ask witnesses what they say saw, heard, did/or did not do, and explain where they were at the time.
• Documents – gather all of the relevant supporting documents such as the risk assessment, training records, maintenance records and anything else linked to the incident.

Key tip: If you have carried out an accident investigation after an incident make sure that you keep the records for at least three years, so that if a claim arrives, you have all of the information ready for it.

Defending against a claim

In order for a claim to be brought against you, it must be proved that:

• You owed the claimant a common law duty of care, as it may in fact be someone else that owed the duty of care and not you.
• You breached your duty of care – e.g. you did not maintain your car park well enough and that was why an individual tripped.
• The injury was a result of your organisation’s failure to do something.

Therefore, to be able to defend against a claim, you will have to prove:

• That you did not have a duty of care over a claimant.
• Reasonable care was taken in the first place.
• The breach did not cause loss – i.e. the injury happened somewhere else.
• Contributory negligence – showing that the claimant contributed to the incident, e.g. if you can show that your organisation has provided suitable training, yet the claimant still acted wrongly, you may be able to mitigate the claim.

How Pennington Choices can help…

At Pennington Choices we have over 15 years’ experience in providing occupational health and safety services to clients of all sizes across a range of sectors including; property, healthcare and sports and leisure. We know what good looks like, and our clients can support this.

Our expert and qualified Health and Safety Consultants can assist you by acting as your competent person to ensure that you are complying with The Management of Health and Safety at Work Regulations, 1999, to prevent claims from being brought against you.

How can I get in touch to find out more?

If you would like to find out more about our competent advice service, you can do so by getting in touch with our experts today. This can be done either by email or by calling 0800 883 0334.

You can also find out what your organisation’s current health and safety position is by downloading our FREE health and safety self-assessment here.