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Put a paper trail in place to cut claims consequences

Ian Hollingworth explains how putting a paper trail in place can cut claims consequences

At the end of 2016, the Health and Safety Executive (HSE) announced that almost one in two small refurbishment projects failed to meet safety targets in inspections during 2016. Aside from the serious concerns this raises in respect of workers being hurt or killed in accidents at work, there's also the wider impact this has on claims experience for insurers operating in this sector.

Creating a paper trail to evidence that health and safety risk management practices are firmly in place, and have been followed, can make a big difference to claims outcomes. Evidence that the worker understood the potential risks of the work they were undertaking and the controls in place can be used to successfully defend a claims case if the prescribed control measures are not followed properly - without this evidence, firms will be in a much weaker position.

A contractor with a neat folder detailing its health and safety practices and risk assessments may feel they have fulfilled their obligations, but if those documents were not provided to the employee, that will not stand up in a court of law as evidence the claimant ought to have known about the risks and known what preventative action to take. This exposes the contractor to claims for civil damages and, if serious enough, a prosecution by the HSE - which may lead to a significant fine or even imprisonment.

The contractor must provide evidence that the worker read the risk assessment, understood the risks and signed and dated the health and safety policy document, prior to them commencing the work. A signed, dated document is the crucial piece of evidence a contractor needs to assist defending a liability claim.

ECIC has vast experience of dealing with claims for contractors who suffer injuries at work. Claims cases where an employee just should have known better and the contractor feels the risk is blindingly obvious, are not uncommon. However, without a proper risk assessment detailing the risks and control measures shown to and signed by the workers involved, the contractor leaves itself open for criticism by the courts for not taking all reasonable measures to protect its employees.

This process of creating a paper trail applies equally to labour-only sub-contractors, who will be considered as employees for the purposes of a claim and covered under the main contractor's insurance. With skills shortages such a significant issue for the construction industry, reliance on labour-only sub-contractors has become a matter of survival for many smaller contractors. They should be treated like an employee and they should sign health and safety documents at the outset of each new contract. Those documents should be properly retained for at least three years from the end of the contract, taking into account the Limitation Act 1980.

The Insurance Act and the Enterprise and Regulatory Reform Act now promise a fairer outcome and speedier claims settlement time, but do not lessen the duty of care firms have for their workers and labour-only sub-contractors. In contrast, the new Health and Safety Sentencing Guidelines have dramatically increased the level of fines firms may face, thus increasing direct exposure to their business.

It just takes small changes in day-to-day practices to put this paper trail in place so that if evidence is ever needed, it is there.

Ian Hollingworth, Claims Manager, ECIC

 

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