Defending a Personal Injury Claim

/in /by

What Evidence Would You Need To Provide?

By Ben Scholes

If you were to face a personal injury or civil litigation claim following an incident at your centre, how easily would you be able to provide all the evidence required to successful defend the claim? We all know that defending a claim can have severe financial and personal consequences for anyone working in adventure activities. Your organisation may well operate to impeccable safety standards and employ qualified, experienced staff. But in many cases, your ability to successfully defend a claim will depend on your ability to provide evidence to prove that:

  • Your staff are competent and have had the necessary training and guidance to be able to carry out their job safely
  • Inspections of equipment, installations and facilities have been carried out on a regular, systematic basis – with appropriate action taken as a result
  • Activities have been carried out in accordance with industry standards

Together with your completed accident report, witness statements, signed customer risk acknowledgment and photographs from the day – your equipment inspection records, staff training documents and risk assessments will form a vital part of evidence you need to provide to your insurance company.

The problem with paper records

As outdoor professionals ourselves, Rob Walker and I knew only too well the problems associated with using paper records for Health and Safety record keeping – paper gets wet, can be destroyed by fire, and consumes a lot of space.

We looked around for a suitable alternative but found nothing. Some organisations were dabbling with spreadsheets, but these were prone to user error and lacked accountability.

Frustrated but determined that there had to be a better way, we set out to create a new robust online safety management system designed to help protect outdoor operators, their staff and customers from avoidable risk.

The result, we believe, is an affordable, easy-to-use system which is already home to 95,000 records and trusted by clients including AIM members the Castle Climbing Centre, the Venture Trust and Low Mill Outdoor Centre among many others.

Here are just three key areas of the Papertrail.io system which make it easy to provide the necessary evidence required in the event of a claim:

Equipment Inspection Records

The system makes it easy to prove that inspections of PPE, installations and other equipment have been undertaken systematically, by a competent person and that any necessary actions (such as repairing, retiring or quarantining items) have been carried out.

By recording all your equipment in your Papertrail account and setting inspection frequencies, your team will be reminded when inspections are due. All inspections are logged and because each user has their own unique log-in, there’s complete transparency and accountability throughout. Detailed notes and photographs can be added to equipment inspections, allowing anyone to see the history of an item from first use.

Risk Assessments

Defending a claim will invariably mean demonstrating that you have adequate risk control measures in place. It’s not enough to have risk assessments and leave them in the back of a filing cabinet. You will need to be able to provide evidence that they have been reviewed, updated and action taken as necessary.

By uploading your risk assessment documents to your account and setting inspection frequencies, you can ensure that regular reviews are carried out, documented and version controlled with a permanent time stamp.

Staff Documents

With instructor error one of the most common factors cited in claims in the outdoors, being able to demonstrate staff competence is of vital importance. Staff training records, certificates and handbooks can all be added to your account, ensuring you have a permanent record. Again, reminders can be set-up to ensure notifications are received when renewals or updates are due, and periodic observations, training sessions and other updates can all be recorded in your account.

All data is backed up four times daily and partnership with the best technology providers in the industry ensures ultimate safety, reliability and security.

We know that working in adventure activities has its own set of challenges as well as immense rewards. Our at goal at Papertrail is to remove some of the stress and anxiety involved in working in a high risk industry, by making it easy for your organisation to comply with legislation and maintain high standards of safety.

Ben Scholes is the CEO and co-founder of Papertrail.io, the online safety management system for professionals in adventure activities and working at height. Papertrail is planned to be affordable for organisations of all sizes. To find out more visit www.papertrail.io.

 

 

Another Liability Claim Successfully Defended

/in /by

Another liability claim successfully defended – but not without legal costs

This claim for damages arose from an accident which occurred during a coasteering activity on the Abereiddy Beach on the Pembrokeshire coast on 13 September 2008. The group members were invited to slide down a smooth two metre slab of rock, and it appeared that the claimant landed awkwardly and caught her foot on a projecting piece of rock at the foot of the slide, fracturing her right ankle in a shallow rock pool. Following a complaint by the injured party to the Licensing Authority on the appropriateness of the slide where she broke her ankle, the handling of the accident by the instructor and the after-incident care, an AALA complaint investigation inspection took place on 14th November. The report concluded that, whilst acknowledging that the 1-to-10 ratio had been exceeded (it was 1 to 12), the slab looked innocuous enough and the others in the group had completed the slide without incident, and that the immediate first aid and summoning of help was carried out adequately.

However, the claimant’s solicitors, MWR Solicitors of Preston, couldn’t wait for the AALA report and issued a letter of claim on 2nd December 2008 alleging that, inter alia, the provider exposed their client to a foreseeable risk of injury and failed to provide an experienced instructor. And they continued to press their case subsequent to the AALA report.

The wheels of justice turn slowly and in this case very slowly. Proceedings were issued in September 2011, four days before the three year limitation (or deadline date) and served in January 2012, seven days inside the further four month extension deadline and the case finally made it to the Southend County Court for the hearing on the 6th and 7th February 2014, before being adjourned to 23rd May for the judge to consider further written submissions.

Eventually, five years and two hundred and sixty nine days after the accident, the Circuit Judge ruled that the claimant’s injury was “a true and unavoidable accident for which the defendant should not be found liable”, a judgment pretty much consistent with the conclusions of the original AALA Complaint Report of some five and a half years earlier.

Although, subsequent to the ruling, AIM was entitled to recover its full legal costs from the losing claimant, as ever recovery didn’t turn out to be straightforward. So, following the “bird in the hand” principle, we accepted their offer of part payment to close the account, unfortunately leaving AIM some £22,500 out of pocket.

As a post script, following the Jackson reforms (see AIM Newsletter 2013), introduced last year to curb legal costs, we, as defendants, have forfeited our ability to recover any of our costs from the losing claimant’s side. In exchange for that, the claimant’s solicitors are no longer able to double their charges as “success” fees and bill us, and are no longer able to recover the cost of their ATE (after the event) insurance which covers their costs in the event that they lose.

 

Freelance Instructors and Public Liability Insurance

/in /by

When do freelance instructors need their own public liability insurance?

A member asks:-

“I had a request for information on instructor insurance yesterday, which had me scratching my head. It seems that a few local authorities are now requiring any freelancers who work for them to carry their own insurance, specifically covering all activities they may be employed to deliver. I don’t know what is driving this policy, but it strikes me that this could be placing a significant financial burden on freelancers, many of whom are paid minimum wage for their work.

Are you aware of any related legalities? For example, could it be related to the fact that the freelancers are self employed?”

AIM’S Response:-

“We’d say that from our standpoint, what it comes down to is: whose programme is the freelance instructor delivering in terms of its content and delivery?

If, for example, it’s the centre’s or provider’s programme, the freelance instructor would be acting as a “labour only” subcontractor and the centre would be liable for the standard of delivery and the content of the activity. The centre is vicariously liable for the actions of its self employed instructors delivering its programmes, whether or not the freelance instructors have their own personal public liability insurance.

If, however, the instructor is delivering his or her own programme outside the control of the centre or provider, it may be an activity that they don’t deliver – let’s say pony trekking – it’s the freelance instructor’s programme and he or she would be regarded as a “bona fide” subcontractor (BFSC). If, for example, the booking had been made through the centre, it would be recognised that the self employed or freelance instructor is responsible and liable for the content and delivery of the activity and the centre’s responsibility would be to ensure that the BFSC is competent and has his own public liability insurance.

Responsibility and liability aspects are entirely separate from any tax standpoint. Further information is available on line from HSE guides and “insurance expert’s” blogs”.

 

AIM & IOL

/in /by

We are pleased to report that we have been engaged in detailed discussions with the Institute for Outdoor Learning (IOL) about the provision of appropriate liability cover for its members.  These discussions reflect the common aspirations for the sector that IOL & AIM hold, and follow the withdrawal of JLT Thistle’s Adventure Activity insurance scheme previously available to IOL members.

As both organisations are driven by their membership and by their wish to see continued and improved public confidence in Outdoor Learning, a close working relationship between IOL and AIM is a natural alliance.  By increasing the level of common membership between IOL and AIM both organisations are seeking to continue to develop good risk management in the sector and better management of the outcomes of incidents and accidents.

AIM was established to provide a stable and sustainable alternative to the conventional insurance sector, in response to the difficulties faced by many activity providers when liability cover became prohibitively expensive, and in some cases unavailable, during the last hard insurance market cycle. AIM is wholly focussed on the outdoor sector, its Board is drawn from its membership, and the Directors are experienced outdoors practitioners. AIM provides cover for liability and property risks, has been a regular exhibitor and supporter at IOL events, and many IOL members already have their cover with AIM.

Horizons Magazine Article

/in /by

A recent article in Spring edition of Horizons magazine announces the new and exciting relationship we now have with the IOL and you can read the full article here.

Chairman’s Statement, Autumn 2013

/in /by

AIM’s Chairman, Andrew Gardiner, shares his views on developments over the past year.

The weather plays a big part in the activities sector and, together with fruit farms and vineyards, we’ve gloried in the long hot summer, particularly so having endured a cold winter and spring and the wet conditions prevailing last year. Despite the continuing economic squeeze, most members of the mutual have enjoyed increased levels of turnover.

At AIM we continue our growth path, the number of members now being over 380, up from a figure of 340 last year. Many of the new members have been personally recommended to us by the current membership. Credit is due to my colleagues on the AIM board for their valuable input to the AIM success, for which I must express my gratitude. The presence of outdoors experts on the board within the mutual gives us an extra dimension that other insurance providers simply don’t have. My thanks are also due to the  managers at Regis who run AIM very efficiently indeed. They take a close interest in all areas of our sector, as well as the risks and liabilities within it.

Next AIM Seminar

Our next national seminar, which will be wide-ranging, informative and entertaining and will include the mutual’s AGM for members, is due to take place on Wednesday 5th February at the splendid Crewe Hall and I really hope to see you there.

Claims Experience

Despite the cold winter, no member reported major weather related damage to buildings and only a few minor claims were submitted, reflecting members’ high standards of stewardship. On the liability front, whilst there is no guarantee that the past is a reliable guide to the future, I can with caution report that the incidence of liability claims, for which we provide key cover, currently shows a downward trend. The work of people like David Ball, who contributes to this newsletter, and Tim Gill has served to highlight the importance of adventure activity and being less sedentary, especially for the young. Managing the risk is, of course, key for us and our members. On the legal front, Ministry of Justice reforms, which seek to curb legal costs and level the playing field in personal injury claims England and Wales, were introduced in August and should be helpful to the mutual on the legal costs front. However in Scotland a recent report from Sheriff Principal Taylor on civil litigation costs took a less encouraging view, seeing (unlike AIM) no evidence of a “compensation culture” there.

AIM has represented members in Court, successfully defending personal injury allegations on four occasions, the most expensive to the mutual being a case in Scotland. We’ve had one surprise adverse judgment too. The successes are largely due to the ability of the member to provide documents showing what actually happened: risk assessments; staff training; briefing and acknowledgement of risk; incident report and investigation documents and evidence of the exact location. This is the evidence that helped to demonstrate that the risk and benefits are balanced and proportionate.

Post Incident Investigations

The importance of post incident investigation and documentation for lessons learned purposes, as well as for providing evidence to rebut a claim if necessary, is a recurring theme of AIM seminars. It was also a key theme at the Crisis Management Conference we held in Birmingham last autumn. This led to the Crisis Management Service we offer to members in partnership with Pharos Response. Subscription to this service provides an on line audit and a follow up consultation. It’s worth noting that each member audit to date has led to the implementation of some risk improvement measures.

Over the past year, in addition to my role here, I’ve completed a period as chairman of the British Activity Providers Association (BAPA) and a member of the English Outdoor Council (EOC). Organisations like these play an important role in leading the outdoors sector and working to make it easier for providers to deliver the outdoor and adventurous experience in these challenging economic times.

Finally, I hope you will agree that it is vitally important for the outdoor and activities sector to have a degree of influence and control over our key insurance cover, especially with the probability of uncertain times ahead. AIM will continue to grow as a strong mutual, looking after its members and providing a voice for the sector and stability and support for its members.

 

 

 

Reflections on the Assessment and Management of Risk

/in /by

By David Ball and Laurence Ball

We are fortunate in being able to devote some of our work time to things in which we enjoy participating, namely, adventure activities.

Consequently, over the last few years, we have had the rare luxury of being able to research the conduct of risk assessment and how it is applied and interpreted, not just in shops and factories, the finance sector, and the courts, but also adventure pursuits. This has identified a series of what we believe to be deep issues affecting a surprisingly broad swath of life beyond the conventional factory fence.

First, we would like to draw attention to continuing disconnects over the meaning of that, for us, crucial word – ‘risk.’ We define risk as the likelihood that some particular thing will happen as a result of exposure to some hazard. So, for instance, in the aftermath of some accident, the immediate question which springs to mind is ‘What was the prior risk of that event?’ leading to the follow-up question which is ‘Was that level of risk acceptable in the circumstances?’ Furthermore, we are not thinking here about the subjective risk (‘it looks dangerous’), but the objective risk (‘it might look dangerous but what is the reality?’).

Experiences in court, however, have shown that expert witnesses and enforcement agencies are not consistently applying this approach. Instead, the logic sometimes followed is what Professor Ragnar Löfstedt has called a hazard-based approach. Basically, this seeks to identify hazards and then to eliminate or control them. In contrast, a risk-based approach would identify hazards, assess the risk, and then decide what control is warranted in the circumstances. Which approach is correct? Mark Hoban, Minister for Employment, summarised the position in February 2013 when, in the context of the government’s reforms of health and safety including the Löfstedt review, he said:

“We need to implement the remaining measures in both reports as well as continue to identify areas where further reforms are needed to create a modern, simplified, risk-based framework for health and safety in Great Britain”*

We take it as unassailable that the risk-based approach is fundamental to the national risk control philosophy. It is, after all, enshrined in the requirement of the Health and Safety at Work etc. Act to do what is reasonable practicable.

Second, assessing risk of some hazardous activity is, contrary to advice often given, not easy. As Professor John Adams has said, “It’s not rocket science. It’s much harder.” We agree, and recent research supports this contention. Risk assessors, especially when parachuted in from some external setting, find it very difficult to quantify consistently the risk of harm from activities and situations. The primary means of quantifying risk include use of accident statistics (if they exist) and personal experience through immersion in the sector of interest. Thus, if you are an outsider, you will be in a weak position to assess risk. This is one of the reasons why AALA was held in such high regard. As initially set up, it was staffed by sector experts who had been immersed in the industry throughout their lives and had contributory expertise. The danger was, when AALA was subsumed by the HSE, that a hazard-based factory culture of risk control would take over which was also comparatively uninformed about actual risk levels and more driven by perception. If your experience derives from shopping malls and office environments, the natural world can appear an horrendously dangerous place.

Third, we have observed a tendency in litigious settings for the prosecution, and their experts, to demand evidence of proper governance and appropriate management systems. The question, seldom asked, is ‘What is proper governance and a proper management system in the circumstances?’ You don’t need to be an expert in management to know that there are different management styles and one size does not best fit all circumstances. Over the decades, health and safety has developed an increasingly autocratic, command-and-control structure with numerous written protocols to be followed. While this may work in some situations the downside is that it shifts responsibility away from front-line professionals. We think that what is most effective in managing the safety of adventure participation is the training and experience of leaders who need more autonomy than might be expected of a factory environment.

These thoughts lead us to a number of considerations:

  • it appears imperative to us that any new and future regulatory body for adventure activities be populated by persons with contributory expertise and thus drawn from the adventure sector
  • that a risk-based philosophy must be pursued
  • that it should not be pretended that risk assessment is easy (that’s one reason why you need in-house experts)
  • that there is a fundamental difference between managing risk in factories and the natural environment, the latter being undertaken in order to realise benefits** and which implies the need to trade-off risk of injury against gains in things like health, enjoyment etc.
  • in seeking support or advice via external agencies it is important to ensure that they have the relevant insight into your sector

David Ball is professor of Risk Management & Director of the Centre for Risk Management at Middlesex University and has some 30 years experience in the fields of risk and public safety. Laurence Ball has a degree in economics and politics and a masters in risk management and is currently working on financial risk but with strong interest in safety and health in public settings. We’d recommend their recent book, Public Safety & Risk Assessment, Improving Decision Making as an excellent read for activities providers.

* View the February 2013 health and safety reforms progress report here

** See article by James Willis, On Target, Autumn 2012.

 

Reducing your Business Risks in a Crisis

/in /by

AIM offers crisis management service

Following a successful workshop in October 2012, AIM has launched, in partnership with risk management specialists, Pharos Response, a service to help our Members better prepare and protect themselves for critical incidents that, although thankfully rare, can significantly affect an organisation’s ability to continue operating. Members who sign up to this service can now access 24/7 expert advice in the crucial hours immediately after a critical incident.

AIM is committed to helping to reduce the likelihood of, and better prepare for, major incidents in advance of the possible occurrence. Pharos can be used to help prepare for the situations we all dread through crisis planning, training and simulation exercises, as well as being on call should the worst happen.

AIM Members signing up to the service will receive the following benefits:

  • At the outset, members complete an online crisis management audit which Pharos will review and draft a report which will include recommendations for improvements where necessary.
  • Upon renewal in succeeding years, a similar tool will be provided in order to help ensure that the development of proactive preparation continues as part of Member’s overall management plan.

A number of Members have already taken advantage of the heavily discounted annual subscription, (an average of £100, prices vary slightly according to the scale of operation), particularly valuing:

1. Immediate access to advice and support should an incident happen, not having a nerve-wracking wait for usual office hours to speak to someone.

2. Team of experts specialising in the crisis aspects of subjects, such as HSE, the press, social media, stakeholder communications and trauma counselling.

An AIM Member who recently experienced a serious incident explains why…

“In June 2013 my company experienced its first accident after many years of trouble free delivery. Pharos were available from the outset of the incident and had the expertise on hand to support my company, myself and my freelance staff in dealing with the difficult aftermath.

They provided exceptional support and advice on dealing with the general incident, the media, the family of the injured person and staff involved with the incident and had a number of experts on hand. I was told to ‘think of Pharos Safety as an extension of my team’ and they certainly delivered on this statement. I would strongly recommend to any AIM member to have membership of this service as part of their strategy to manage such incidents.”

Julian Penney, MD of Pharos said “Our experts from across the outdoor industry, and beyond, are on call to help organisations deal with major incidents immediately after they happen, whenever that may be. These sorts of specialist skills may not be present in many organisations or are not often used due to the obvious infrequency of such situations”.

Members don’t have to wait until renewal to get access to this service. To find out more, please contact us.

Julian Penney leads the Pharos team and has a wide range of practical first-hand experience in managing emergency situations, first as an officer in the British Army and more recently as Operations Director of World Challenge.

 

Lessons Learned – Location, Location, Location

/in /by
You need to be logged in to view this content. Please . Not a Member? Join Us

Lessons Learned – Common Sense Prevails

/in /by

Common sense prevails in Court following a slip in a mining museum

Judge rejects claimant’s premise that because he slipped and sustained an injury on a visit to a heritage site, the site owner is to blame, and that it must have been due to “an act or omission by the defendant which it should reasonably have remedied”.

Clearwell Caves, a long standing member of the mutual, is a natural cave system which has been extensively mined for iron ore and operates now primarily as a mining museum, also providing caving activities. The caves are part of a Natural England designated Site of Special Scientific Interest.

This was a case brought by a retired publican who had slipped or stumbled and fallen whilst on a family visit to see the cave’s Christmas Fantasy Display. Although the claimant’s injury seemed slight at the time, it subsequently transpired that he had sustained a broken right ankle, from which he has made a more or less full recovery after 12 weeks in plaster.

The accident occurred in an underground passageway on a slight incline. Taking into account the damp conditions, the surface was covered by compacted ragstone gravel, recently replenished, providing a suitable non slip surface with drainage channels down each side. As is required by the Mines Inspectorate, there are recorded inspections of the mine’s walkways at least three times each day at no more than four hourly intervals.

The claimant’s expert, a Mr Petherick, argued that the mine, which is subject to Health and Safety at Mines Regulations 1993 and 1999, should also be subject to the Building Regulations and legislation covering buildings and constructed public places, such as sports stadiums and supermarkets.

The judge ruled that it was incorrect to equate a mine, with its inherent and unique character, with a supermarket or an office and that building regulations do not apply. He found that the ragstone gravel did indeed provide a suitable non-slip surface for the walkway in dry or wet conditions and that the mine’s recorded inspection and maintenance regime was systematic, regulations compliant and effective.

Comment

Common sense prevailed here in Court. Even in a case of little apparent merit, documented records evidencing risk assessment, good management and a regular inspection and maintenance regime are required to counter a claimant’s argument that because there’s an injury, the facility is to blame and compensation is due.