How to respond to an incident giving rise to a potential claim16/08/18
It has never been more important for those who face potential claims and their Insurers to fully investigate and obtain evidence from the outset.
Since the Jackson reforms of 2013, Claimants will routinely ‘front-load’ claims by getting all of their evidence in order long before drafting a Letter of Claim or issuing proceedings. This can leave the Defendant on the back foot. In addition, it is very difficult to challenge front-loading at the Costs Management Hearing as the court cannot take into account costs already incurred prior to setting the budget. This ‘double-whammy’ for Defendants has occurred against a backdrop of needing to proceed quickly once a claim is notified as since the Court of Appeal decision in Denton (2014) courts are more reluctant to grant relief from sanctions for those unable to comply with the court’s timetable.
A claim can materialise many months, or even years after an event. It is imperative that detailed witness testimony is obtained as soon as possible after the event whilst memories are fresh.
We have frequently been in receipt of hand written statements which are undated, and provide no contact details for the witness who has long since left the Defendant’s employment and can no longer be traced. There have been incidences where that person’s evidence was key, but because they could not be traced, a liability defence could not be maintained.
Statements should be based on the facts, and not opinion. It may be of assistance if a template is used. For example, when there has been an accident at work, personnel at the scene might be asked
a) Your name, address and contact telephone number;
b) describe the facts that led to the injury;
c) Who was at fault for the accident and why;
d) were any measures in place to prevent the accident and if so what were they;
e) What injuries were sustained;
f) date that the statement was signed.
Set up an Incident Investigation File and retain all documentation. From the outset, all documents which are created (including electronic documents) should be stored in a central location for ease of access later. We have often dealt with cases where documents have gone missing, only to reappear in the weeks or days before trial. This is now unacceptable and such documents are unlikely to be admitted as evidence.
When a claim is intimated by an employee, it is essential that their personnel file is up to date, and documents are in chronological order. Minutes to meetings must be legible and dated. Ensure that a full training record has been maintained, and that you can locate copies of any training materials that were used in the course of that training. Often a Defendant can evidence that training was provided, but not evidence what that training consisted of. Cases have failed because of this. Similarly, ensure that the edition of the Employee Handbook containing the firm’s Health and Safety Policy applicable at the date of accident is retained. The same is applicable for risk assessments.
Where there has been an accident at work resulting in the employee being unable to work, it is extremely helpful when Occupational Health (OH) have been involved from the outset. Ensure that legible records are kept and retained in chronological order. Do OH accept that the absence is accident related?
By instructing a solicitor to obtain statements and documents from the outset, litigation privilege can be maintained, and an early view taken as to how you will respond to any future claim. In addition, taking these steps will ultimately ensure that you are on an equal footing with your opponent at the litigation stage and reduce your own legal costs.