Claims defensibility — data analysis underlines the importance of documentation
A reminder that documentation, risk assessment and processes are vital to the successful defence of both employers’ and public liability claims.
A recent analysis of our Casualty litigation portfolio data for 2022/2023 has concentrated on three key aspects; firstly, the most prevalent claim types amongst employers’ and public liability claims, secondly, the determining factors which drove a commercial settlement rather than a successful defence and thirdly, the successful repudiation rate achieved for each class of claim.
It is hoped that this analysis will inform and lead to behavioural change amongst organisations which in turn will improve claims defensibility and ultimately lead to a lower financial outlay on premiums/reserving.
Most prevalent claim type
Both EL and PL data showed marked similarity with data sets seen both 10 and 15 years ago, save that the advent of the General Data Protection Regulation has introduced a new class of claim with damages being sought for “data breach”.
Ranked from the top to the bottom, the data has revealed the following;
EL: most common claims type:
PL: most common claims type:
|Manual handling||Tripping hazard|
|Defective equipment||Data breach|
Although sounding relatively low in average damages settlement with a median value of under £10,000, the consistent high prevalence of slips, trips and falls in both the EL and PL environments highlights a need for organisations to pay particular attention from a risk prevention perspective to systems which they have in place for cleaning and housekeeping.
Investment in slip resistant flooring and safety footwear should be considered and documented systems in place to ensure that walkways and gangways remain clear of debris and any substances likely to cause persons to slip.
Similar considerations apply to defensibility in respect of the other mains claims categories. Despite improvements in health and safety, and significant changes in the way in which people work, the focus should remain on regular, documented inspection and testing of equipment and workspaces (including immediately after reports of any incident or near miss) to ensure they are not defective.
As regards manual handling, where such issues arise in our experience these still tend to be because:
- Employees are required to lift weights in excess of manual handling guidelines;
- Inadequate consideration has been given to how to eliminate manual handling or at the very least, reduce the risks in respect of each task which staff are required to undertake;
- Some manual handling occurs due to staff trying to ‘do their best’ in the face of breakdowns or defects – again a process should be drawn up and clearly communicated as to the need to report and request specialist assistance;
- Employers are unable to point to detailed, recent training on manual handling and any training provided can superficial, without giving staff the opportunity to fully appreciate the manual handling risks to which they might be exposed;
- Employees are unable to identify the weights they are moving;
- Consequently the focus should remain on instruction, information and training, with the upskilling of those staff required to compile risk assessments on behalf of an employer.
Crush, traps and collisions arise in a multitude of circumstances, such as employee interaction with machinery or impact with poorly-secured fixtures. However, a key cause is the failure to segregate staff, particularly pedestrian staff from those using vehicles or trucks or other modes of transportation – an issue highlighted in our previous article. The response to combat such incidents needs to be equally multifaceted but will include the continual training of staff on such equipment, monitoring staff for carelessness, and taking appropriate action via HR when it arises, and the need to clearly demarcate workplaces to minimise the risk of contact between staff and vehicles.
Reasons for settlement
Documentation failings (which we examine in greater detail below) were the primary reason cited as inducing compromising or settlement of a personal injury claim over continued defence — 62 % of 1,160 cases reviewed.
Inconsistent, unfavourable or lack of witness evidence alongside inadequate training and negligence of fellow employees (vicarious liability) were the next most prevalent factors.
Further analysis revealed that:
- Failure to create essential documents (whether that be risk assessments, inspection records, safe system of work and other process documents or otherwise) drove settlement in 78 of 718 cases in this category (11%);
- In nearly 10% of cases, important documentary evidence had existed but had not been retained (for example, having been overwritten) or could not be traced by the time of the claim notification;
- in 94 cases (13%), analysis of documentation revealed a change in procedure post-accident- usually seen as prima facie evidence of shortcomings in the original system or method of working;
- In over a third of cases (255 cases/ 36%) documents provided by organisations/policyholders highlighted failings in the assessment/consideration of risk and hazards or more generally to an inadequate system of working. This suggests that process and other documents are not compiled with the necessary skill or awareness, are not comprehensive enough to cover each particular process or are not thorough enough to assess and control all the risks arising from the particular task. This places into sharp focus the need for organisations to invest time and resource into the consideration/assessment of hazards/risk and training.
- More widely, in 5% of cases, fault arose due to employers’ failure to react or rectify defects in response to complaints or reported problems. Whilst resource may be an issue here, more likely it suggests that some employers struggle to log and manage improvement activity against such reports, for which an audit compliance tool may be of assistance.
As documentation failings feature so significantly in this analysis, it is worth restating basic principles.
Broadly speaking, the duty upon employers is to investigate and identify hazards and the risk of injury to their employees, visitors and contractors. This should include reviewing accident and ill health records, consideration of general hazards for example manual handling, use of chemicals and workplace stress and an assessment of how employees, visitors and contractors may be harmed.
Employers must then document the existing controls which reduce risk and consider whether it is reasonably practicable to introduce further control measures to reduce the risk even further, either by getting rid of the hazard, re-designing the job., replacing materials, process or machinery or by the provision of personal protective equipment. The assessment should be written down and retained securely. It should be reviewed periodically and after any material change in the circumstances.
It is also worth reiterating that the duty placed on employers extends to any work their employees conduct from home, given that the sustained prevalence of home working since 2020 has been linked to, amongst other issues, a rise in musculoskeletal disorders, primarily due to poor homeworking practices and lack of suitable equipment at home.
System of work
Ideally, the safe system of working for each task or process should be written down in a logical and chronological order citing the preventative controls, training or protection needed to avoid the risk of injury. The documents should be provided to each employee and retained securely. Each aspect of the process should be documented and compliance against each process should be audited periodically, with such results themselves being documented and acted upon.
Whilst many employers have established procedures and processes to follow in the case of injury, not all systems guide those personnel investigating claims to make the appropriate enquires and identify, obtain and preserve the essential documentary evidence. Many organisations have seen changes in the number or identify of those tasked with undertaking accident investigations, and therefore it remains a challenge to ensure that such accident investigations are always consistent, effective and thorough. ‘Preserving the scene’ and retaining relevant documents is a key part of an incident investigation. However, accident investigators can overlook the fact that how facts or verbal reports are recorded can also have a huge impact on the root cause analysis and the prospects of successfully repudiating a claim, should it arise. Periodic effective investigation training for those undertaking this important task is desirable.
Accident investigation challenges are magnified for organisations facing public liability claims as they can find themselves at a disadvantage by often not knowing immediately if an accident has occurred and therefore failing to secure or retain documentation to include CCTV evidence to assist when a claim materialises — often several months after the index event.
As our analysis shows, failings in witness evidence contribute not insignificantly to failings in overall claims defensibility so the need to identify and have accurate contact details for any potential witness is vital, combined with an early and thorough investigation of any incident which may potentially give rise to a claim. An effective accident investigation tool and digital vault to preserve the disclosure and other evidence in existence at that point in time, is a key defensibility tool.
Repudiation rate/claims type
Our data reveals that when a direct comparison is made between EL and PL, it is the latter not the former which has the highest successful repudiation rate, varying between 15% and 30% for the top 3 categories of claims type: tripping, defective premises and slipping.
Perhaps reflective of a more heavily regulated workplace with the attendant greater concentration upon documentation, our portfolio data shows a lower repudiation rate for employers’ liability claims with the percentage varying from 7% to 19% across the most common types of claim.
“Litigation risk” is often cited anecdotally as the reason many personal injury claims are compromised prior to trial. This analysis suggests otherwise and ought to serve as a reminder to organisations that documentation (and document retention), risk assessment and processes more generally are absolutely key to the successful defence of both employers’ and public liability claims.
From effective accident investigation and other innovative health and safety training, and process/document review, to a flexible, fully auditable risk and incident management data repository utilising pre-configured templates to ensure appropriate incident/evidence gathering, Weightmans can assist on all aspects of defensibility to minimise the need for settlement. Please contact us for more details.