Guide to Industrial Injury Claims
Anybody who works in any industry is entitled to claim industrial injury compensation when they have been injured or developed an illness due to the negligence of an employer. Employers have a duty of care under the 1974 Health and Safety at Work Act (and subsequent amendments) to provide a safe environment in which to work, and the Health and Safety Executive (HSE) provide guidance, approved codes of practice and regulations to cover every aspect of an employees working life – from the risk assessment before a hazardous task is undertaken, to exactly what standard of personal protective equipment should be provided where necessary.
Where an employer fails in his duty of care to protect employees from injury, he becomes the liable party in an industrial injury compensation claim – even though he might not be directly responsible for your injury. If work colleagues have not been properly trained and their negligence results in you sustaining an injury, the employer is still negligent by association. Similarly, if work colleagues are guilty of bullying or harassment, and you suffer a psychological injury as a result (depression, lack of sleep, loss of focus), your employer is still negligent for failing to monitor the situation that caused your injury.
There has to be Injury and Negligence in an Industrial Injury Claim
Inasmuch as there are many accidents in the workplace, not all of them lead to an injury and, of those that do, not all are caused by negligence. In order to make a successful claim for industrial injury compensation, it has to be proven that you sustained an injury which could have been avoided if it were not for the actions – or lack of actions – by an employer. A near-miss, although often shocking, is not regarded as an injury unless there are psychological consequences which can be quantified.
In the same way as there can be no industrial injury compensation claim without an injury, there is no case without negligence. Employers cannot be held at fault for unforeseeable circumstances which result in an accident and injury, and this would include criminal assault, road traffic accidents while an employee is driving on behalf of the company or a trip, slip or fall away from the company premises during working hours. Inasmuch as all these scenarios are eligible for compensation when a lack of care is responsible for causing an injury, as it is not the employer who is liable but another third party.
Industrial Injury Claims and Contributory Negligence
Claims for industrial injury compensation can be affected if it is considered that you contributed to your injuries by your own lack of care. Circumstances under which contributory negligence may be a factor include proceeding with a task even when you know you have not received full training on how the task should be performed, operating fork lift vehicles in populated areas without supervision or failing to report an overload of work which results in you suffering the symptoms of stress (even though a supervisor should be monitoring your workload on the employer´s behalf).
There is one other important factor which will almost certainly be regarded as contributory negligence in an industrial injury compensation claim, and that is if you fail to seek immediate medical attention after sustaining an industrial injury.
Your Health Comes Before All Else
Whenever you have been involved in an accident at work – whether it was caused by negligence or not – your first course of action should be to seek medical attention. Injuries which are left unattended can deteriorate into lifelong health issue (which no amount of industrial injury compensation which will make up for), and even if you believe that you have escape from an incident with a minor cut or bump which will clear up by itself within a couple of days, having a precautionary examination will eliminate the risk of developing something more serious.
The same applies when you start to feel unwell through overwork, because you are contracting an industrial disease or starting to develop the first signs of a repetitive strain injury. By delaying a professional examination, not only are you jeopardising your industrial injury compensation claim, but also your health. As the notes from a medical examination are necessary for your lawyer to construct an industrial injury compensation claim, it is just as well to have the examination sooner rather than when it is too late.
Procedures Prior to Making an Industrial Injury Compensation Claim
As well as your medical notes, a lawyer will want a copy of any entry that is made in an employer´s “Accident Report Book”. Every employer is legally obliged to record any incident which leads to an injury – even one sustained over a period of time – and where that injury leads to an employee taking more than three days off from work, reporting the incident to the HSE. The HSE may choose to investigate the cause of your injury and, should they find your employer negligent, their report will also be used to strengthen your claim for industrial injury compensation.
Awards of Industrial Injury Compensation
Awards of industrial injury compensation are made against your employer´s public liability insurance company and not against the employer himself. They are comprised of up to four elements, depending on the nature and severity of your injury and your personal circumstances.
Pain and Suffering – Industrial injury compensation is awarded primarily for the pain and suffering you experience at the time of your accident and during your recovery period. It is based on the severity of your injury, the length of time it may take you to get better and in relation to industrial compensation awards for similar injuries in similar circumstances.
Loss of Amenity – If, both during and after your recovery period, you are unable to enjoy the quality of life that you did prior to your injury, an element of your industrial injury compensation settlement will account for loss of amenity. This is one element of an industrial injury compensation claim which is unique to everybody, so there are no guidelines relating to how much compensation you might receive for loss of amenity.
Psychological Injury – Your pain and suffering might be purely psychological, or you may experience an emotional trauma because of your accident. Experts agree that every physical trauma cause a degree of Post Traumatic Stress Disorder, but compensation for psychological injury can be awarded even when you are not diagnosed with this condition – for example, if you become depressed after a long period of immobility.
Costs and Expenses – You are also entitled to claim for costs and expenses that you have incurred which are directly attributable to your injury. These are known as “Special Damages” and include everything from the cost of medical treatment, to replacing lost income, to covering the cost of your industrial injury compensation claim.
Issues With Industrial Injury Compensation Claims
There are two further issues which victims of workplace negligence need to be aware of when making a claim for industrial injury compensation. The first is the Statute of Limitations. This law limits the time in which a victim can claim industrial injury compensation to three years from the “date of knowledge” that an injury exists. Although for many people this “date of knowledge” will be on the day that an injury occurred, employees who have developed an industrial disease or repetitive strain injury have three years from the date on which they were diagnosed with such injury to file their claim for industrial injury compensation or settle out of court.
Settling out of court (the second issue) is something which is best done through a lawyer. Quite often, when an employer is prepared to accept liability for your injuries, you may be approached directly by his public liability insurance company with an early offer of settlement. These offers are rarely appropriate to your injuries and their consequences, and only by having your industrial injury compensation claim assessed by a lawyer will you be able to determine whether you are a receiving a fair and adequate settlement.
Making a Claim for Industrial Injury Compensation against an Employer
Although most employers will be genuinely distressed that their lack of care has lead to you sustaining an injury, there are those who are not so considerate. Even though the money for an industrial injury compensation settlement does not come out of their pocket, they consider it a personal affront that you decide to proceed against them. There are regulations preventing employers from using this as an excuse to penalise you when you return to work, but for full details on how you can make a claim for industrial injury compensation without it becoming more stressful for you than it is already, it is in your best interests to speak with a lawyer at the earliest possible opportunity.