Mr W was working as a scaffolder on a building site in Staffordshire, as he was erecting some scaffolding he lifted one of the boards up to the next level. As he was doing so he slipped and his hand became trapped in-between the board and scaffolding pol , causing him to fracture and partly sever his right thumb. The cause of the slip was ice and snow underfoot of the scaffold boards. Mr W was unable to work for 14 weeks after the accident and as a result suffered a loss of earnings.
Mr W instructed Hayward Baker Solicitors to act for him in his claim for personal injury compensation. Mr W’s solicitor wrote the the defendant (Mr W’s employers) and made the following allegations as to why they were at fault for the accident:
‘a) Failing to carry out any or any suitable risk assessment, had you done so the risks in working in adverse would have been noted and preventative measures taken.
b) Failing to carry out any suitable or sufficient assessment of the health and safety risks to which you exposed our client contrary to reg. 3 of the Management of Health and Safety at Work Regulations 1999 or at all.
c) Failing to adequately or at all to ensure that the work at height was properly organized and planned, appropriately supervised and carried out in a safe manner contrary to Regulation 4 of the Work at Height Regulations 2005 or at all.
d) Failing to provide a suitable and safe working platform for our client, in that it was slippery and covered in ice and/or snow, contrary to Regulation 8 of the Work at Height Regulations 2005 or at all.
e) Failing to institute or enforce any or any adequate system of inspection and/or maintenance of the scaffolding/working platform to ensure that the same was safe for use contrary to Regulation 13 of the Work at Height Regulations 2005 or at all.
f) Failing to institute or enforce any system or any sufficient system of inspection of the scaffolding and/or traffic routes. Had you done so the presence of ice and snow would have been noted and preventative measures taken.
g) Failing to keep the surface of the traffic route free from obstructions which may cause a person to trip or fall, contrary to regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 or at all.
h) Failing to institute or enforce any or any suitable system of gritting or snow/ice clearance. Had you done so, it is likely that this accident could have been avoided entirely.
i) Causing, permitting or suffering our client to work as above when you knew or ought to have known that it was unsafe for him to do so.
j) Failing to provide or maintain for our client a safe system of work, safe plant and/or safe equipment.
k) Failing to take any or any adequate care for the safety of our client.
l) In the circumstances, exposing our client to a danger and/or trap and a foreseeable risk of injury. ‘
Within 3 weeks Mr W’s solicitor received an acknowledgement from the defendant stating that they had now passed the details of the claim to their insurers who will now deal with the matter. Whilst the the investigation took place Hayward Baker got to work on obtaining witness statements from co workers in support of Mr W’s claim.
The defendant insurers contacted Hayward Baker Solicitors at the end of their investigation period and said that liability was denied on the basis that Mr W was supplied with the correct personal protective equipment, that the boss disputes he told Mr W to complete the scaffolding in freezing and snowy conditions. Further the boss maintains that all staff are instructed to not to work in unsafe conditions and that they should have rung the office and reported the conditions and either returned to the yard or waited in the van until conditions were better as per their laid down proceudre.
It was now up to Mr W and his solicitor to prove that the defendasnt was liable for the accdeint and this wasn’t going to be easy without more evidence in support of Mr W’s claim. As it happens although Mr W was injured due to snow and ice on the scaffolding boards his boss still sent two new scaffolders to finish the job on the same day in the same conditions as Mr W and his co-worker were setting up scaffolding in earlier that morning. This contradicts what the insurers stated as part of the defendant’s denial that his staff would not work on scaffolding if the conditions were known to be dangerous as they clearly were the day he sent two more scaffolders to the site to finish the job immediately after Mr W’s accident. Hayward Baker had already spoken to a potential witness that said he would sign a statement to say he was one of the people sent to finish the scaffolding job and that it was icy and snowy and another witness who would state that no laid down procedure existed for reporting weather.
The insurers had not yet supplied documents to support they had a procedure in place regarding bad weather or a copy record of the incident in their accident book. These documents should have been disclosed after or during the investigation period in support of their denial. Should they not receive these documents in 14 days then Hayward Baker will issue proceedings and make an application to the court for the documents and seek an order that all court costs relating to this application be paid for by the defendant insurers. Unfortunately the defendant’s were unable to supply any documents of use to be used as evidence in support of Mr W’s claim so proving the case was now fully reliant on witness statements.
Fortunately Mr W was able to find two witnesses to support his claim who were willing to state the facts that the conditions were terrible and after the accident two more scaffolders were sent to finish the job in the same conditions and that no formal procedure regarding unsafe working conditions existed and no job training was ever given.
Now that there were at least two witness statements Mr W’s Solicitor decided to obtain his medical records and arrange a medical appointment for Mr W with a medical consultant who would examine him . After the examination the consultant would formulate a report upon his injuries and it is this report that would be used as medical evidence in support of his claim and would be used by his solicitor to value the claim for compensation and other financial losses.
The medical report arrived at Hayward Baker and was reviewed by Mr W’s solicitor prior to a copy being sent to Mr W for his approval along with a draft Schedule of out of pocket expenses to include loss of earnings and travel expenses to and from medical appointments. The report stated that the thumb injury was consistent with the accident circumstances and that there was an amputation of 60% of the right thumb, which took five weeks to heal, that a second surgery was undertaken to achieve a better position due to complications and a course of physiotherapy was undertaken for reduced hand movement and sensitivity. The scars would be permanent and any symptoms after 5 years post accident date are likely to persist.
Mr W approved the medical report and schedule of out of pocket expenses and had now made a full statement as to the accident circumstances. A third witness statement had now been signed and received from Mr W’s ex wife who confirmed the level of care and assistance he required at home while his thumb was healing.
The medical report, witness statements and schedule of losses along with a covering letter was sent to the defendant insurers asking that they reconsider their position bearing in mind that there is no written proof of a procedure to report adverse weather conditions and therefore Mr W or his co-worker did not know that this was procedure. Even after being informed of the accident due to adverse weather the defendant still sent two people to finish the job the same day in the same conditions in full knowledge that Mr W had been injured due to these conditions which contradicted the insurers denial of liability. If Hayward Baker Solicitors did not hear from the defendant insurers within 14 days then they would issue court proceedings and let a judge decide who is at fault for the accident.
No response was received within the time frame given so Mr W’s solicitor issued court proceedings. However three weeks later the defendant’s insurers made an offer to settle the claim for £11000.00 in full and final settlement including Mr W’s legal fees.
Mr W was notified of the offer by a letter from his solicitor explaining that the offer of £11000.00 including legal fees ,which are currently in the region of £10,00.00 plus the upcoming court fees, then it would be better to reject the insurers offer and make an offer to them for £11000.00 plus legal fees in addition. While it was highly unlikely the insurers would accept this they may be pushed to a more realistic offer.
Mr W agreed and gave his authority for the offer to be made and shortly after the defendant’s insurers came back with an offer of £9000.00 and agreed to meet Mr W’s reasonable costs in addition to the £9000.00.
Mr W agreed to the offer od £9000.00 and court proceedings were cancelled and the claim ended.