Critically evaluate a situation and predict the li

Personal Injury Liability and Absence

Reduction

Assessment criteria the learner can:

1.1    Apply the law of negligence and / or occupiers’ liability to a given situation

1.2    Critically evaluate a situation and predict the likely outcome in relation to liability

Analyse a scenario, apply the appropriate legal principles and guidelines, and estimate an

^3.1   appropriate financial remedy

Apply the terms of a simple insurance policy to a scenario, and brief an employer on the range of additional costs in relation to a civil claim

You are the Safety Manager for a medium-sized regional construction company.

One of the projects recently undertaken is the cladding of a building in a town centre location. The building was on a busy street next to a main road. This project was anticipated to last only four weeks. All of the work was undertaken by direct employees of the company; no contractors were used.

Normally, mesh fencing with concrete weights would be temporarily installed around the perimeter of a construction site to prevent unauthorised access, and to keep the public safe.

Because of the town centre location - with a high footfall of people - the project manager decided that wooden hoarding should be installed around the perimeter of the site. This would improve the safety of the public further, reduce the risk of trespassers entering the site during the night, and would also improve the appearance of the construction site.

Consequently, a 2.4 metre-high fence was installed around the site. The fence consisted of wooden posts sunk into the ground by 50 cm and secured with concrete, and then plywood panels screwed to the posts.

The fence was on the boundary line with the pavement, which was over three metres wide, and so pedestrians could still pass with ease.

A few weeks ago, on a weekend in February, there were strong winds across the UK. Strong gusts of wind caused the hoarding to become dislodged from the ground in parts, leaning over onto to the pavement.

A particularly strong gust then blew a long stretch of the hoarding over onto the pavement and road.

A 25 year old man was walking along the pavement at that time, and was injured by the hoarding landing on top of him. He sustained a broken arm and collar bone. 

At the same time, a car was being driven down the road by a 72-year-old woman at the speed limit of 30 mph. As the hoarding was blown into the road, she swerved and hit a lamp post. She sustained a serious broken nose, and lost two of her two front teeth. Her car sustained £5,000 of damage.

Task

Prepare a report for the Finance Director of your company, in response to their request below.

You have received this email from the Finance Director:

“I am emailing about the accident a few weeks ago.

We have not yet received any claims from the two individuals who were injured, however I would like you to provide me with a report setting out our potential financial exposure if - or more likely when - the two injured people start a claim against us.

I know that our insurance company and solicitor will get involved when a claim actually arises, but I need to get an idea of the likelihood of a civil claim being successful, and if so, what our liability would be. This is because I will need to keep that amount of money in our reserves to be able to pay any claims.

• A brief summary of our duties in civil law.
  
  
• For each claim, if you think that we would be liable for the injuries, and why.
  
  
• Very roughly, how much compensation do you think each person is likely to be awarded?
  
  
• Looking at our insurance policy, how much money should I therefore keep in reserve to pay the compensation element of these claims?

My view is that we should not be liable for any of the claims for the following reasons - and it would be appreciated if you could let me know your views on these points in the report:

• I accept that the hoarding was not installed to the industry standard - I don’t need you to research that. However, it would have been fine if it were not for the gales. The job was four weeks in length - and it was unlikely that we would have gales in that short spell of time.

• For such a short duration job, surely it would have been unreasonable for us to bring in heavy equipment to dig bigger holes, and to spend even more time and money adding reinforcements to the hoarding?

• The hoarding was there to protect the public and keep them safe. Had we just used a mesh fence, it would not have blown over - we went the extra mile to keep the public safe and deter children from entering the site.

• The man walking along the pavement saw the hoarding leaning over in the high winds. He could have quite easily crossed over the road - surely he is to blame himself for walking next to an obvious danger?

• We didn’t cause the injury to the old woman - she simply crashed her car. I agree that if the hoarding had hit her car it would be our fault, but if she were a better driver then she could have avoided the hoarding and the lamp post completely.

Thanks for this. Just to be clear, I’m not interested in any criminal investigation or prosecution here - just what funds - if any - I should put aside for these civil claims.

I have attached a few documents for you. Our PR Manager has been and spoken to the two individuals - so we have some background on them, their injuries, and prognoses. I have also included a copy of our insurance policy summary.

 Assessment material:

Further information on injured parties

Connor

25 year-old-male

Injuries: Simple fracture to the left clavicle, simple fracture to the left ulna.

Prognosis: Will be in plaster for six weeks. After than should be a complete recovery, with no lasting effects. No psychological damage.

Occupation: Works as a self-employed courier. Will be unable to drive for six weeks. Average net weekly income: £500. Does not hold any loss-of-income insurance.

Iris

72-year-old female.

Injuries: Broken nose, which was displaced and required surgery to correct. Loss of two front teeth.

Prognosis: Complete recovery of nose after surgery. False teeth provided by National Health Service. No psychological damage.

Occupation: Retired. Draws pension, which will be unaffected.

Assessment material:

Insurance policy summary

Public liability insurance

About this document

This document is a summary of the insurance provided and does not contain the full terms and conditions of your insurance.

Features and benefits

• Legal liability to pay claims and all associated legal costs for accidental bodily injury, loss or damage to material property, obstruction, nuisance or wrongful arrest in connection with the business

• Includes cover for legal costs and expenses in connection with any alleged breach of statutory duty under health and safety, consumer protection or food safety legislation

• Includes cover for legal costs and expenses in connection with any criminal inquiry into, or court proceedings brought against you, for manslaughter, corporate manslaughter, corporate homicide or culpable homicide

• Includes cover for your legal liability to pay compensation under the Data Protection Act

• Includes cover for your legal liability for loss, damage or bodily injury arising from any sudden or unexpected incident of pollution or contamination

• Compensation paid to you where court attendance is required of any director, partner, principal or employee in relation to a claim that is covered by this insurance

• Automatically includes cover for temporary employees up to a total of 50 man days in any one period of insurance. 

Limits of cover

The most we will pay is a limit of indemnity of £5,000,000. The costs incurred in investigating, defending or settling the claim are paid in addition to the limit of indemnity.

There is no limit on the number of claims that can be made in any one period of insurance (note that some sections of cover restrict the amount we will pay in any one insurance period).

Court attendance costs are paid at £250 per day for each person.

Significant or unusual exclusions or limitations

As this document is a summary of the insurance provided, the following is not a list of every exclusion that applies. You can find details of all the exclusions in the policy documents.

Exclusion or limitations

• Aircraft or watercraft exclusion

• Exclusion of liability arising from work in or on aircraft/watercraft, or at airports or aerodromes in areas with aircraft access

• Asbestos exclusion

• Design, advise and treatment exclusion

• Exclusion of bodily injury to a person employed by the insured

• Exclusion of damage to property owned or in your custody and control

• Exclusion of legal liability for which compulsory motor insurance is required

• Exclusion of liquidated damages, fines and penalties

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• Exclusion of work outside the UK other than temporary work by a non-manual employed person Offshore exclusion

• Pollution and contamination exclusion unless pollution or contamination is sudden or unforeseen Rectification of defects exclusion

Excesses

There is an excess of £50,000 for each and every claim made under this policy.

Policy duration

This is an annually renewable policy.

Applicable law

The Law of England and Wales will apply to this policy

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