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Top professional indemnity claims made by ICAEW members

Why a robust claims defence is vital to your business

When incidents happen and claims are made, insurance premiums can skyrocket the following year.

Dealing with incidents and compensation claims when they occur is known as ‘claims defensibility’ – and the right processes here can help soften the impact from a claim if the worst should happen.

Claims defensibility is based on two interrelated principles:

  1. Putting in place a vigorous system of risk control – from risk management to training – designed to prevent accidents from happening in the first place.
  2. Maintaining a clear process through which to gather the evidence required to defend health and safety claims and investigations in the event of an incident.1

Both aspects of claims defensibility are crucially important if an employee is injured at work. Let’s dive into some common injuries at work and claims made, plus the steps you can take to build robust claims defensibility.

Common incidents and claims

According to the HSE, the common causes of health and safety-related incidents include:2

  • 30% slips, trips or falls on same level
  • 18% handling, lifting or carrying
  • 11% are a result of an employee being struck by a moving object
  • 9% area caused by acts of violence
  • 8% by falls from height.

However, the breakdown of compensation claims made by employees following an injury tells a slightly more diverse story:3

  • Electric shock
  • Muscle strains
  • Chemical burns
  • Eye, injury, sight loss or blindness
  • Slips and trips
  • Hearing damage
  • Head or brain injuries
  • Falls
  • Struck by falling object
  • Fractured/broken bones or dislocated joints
  • Exposure to dangerous substances
  • Collision.

Be aware of the heightened risk of illegitimate claims

Amidst the current cost of living crisis, the risk of illegitimate workplace injury claims may be heightened. There may be instances where an employee purposely causes accidents in order to claim lost income to cope with soaring expenses. This emphasises the importance of robust claims defensibility.

How to build a robust claims defensibility position

Risk control

Prevention is the starting point and is a crucial foundation for a robust claims defensibility position. It’s also a legal requirement under the Management of Health and Safety at Work Regulations 1999.

Of course, every business will face its own set of health and safety risks, and should design its own tailored programme of injury prevention controls. Some common steps include:

  • Identify hazards - Perform a detailed risk assessment to identify hazards that could cause a workplace injury.
  • Identify who could be harmed and how - For each hazard, think about which employees might be affected, when and how.
  • Evaluate and control risk - Consider the likelihood that someone will be harmed, any steps you are already taking to control the risk and whether further action is needed.
  • Implement and record - Keeping a record of your risk assessment, findings and steps you’ve taken to control risk is vital to claims defensibility.
  • Review your risk controls regularly - Update and review your risk assessment and control measures periodically to ensure they remain effective, that any new hazards are identified and the risks controlled, and any issues spotted by employees are investigated.

Incident response and management

The other major element of building a robust claims defensibility position lies in the immediate response should a health and safety incident occur. Here, acting quickly to support the injured employee and gather a detailed body of evidence as to how the incident occurred is crucially important.

Any incident, no matter how irrelevant should be record. Typically, for every one fatality, there’s 10 major incidents, 100 minor incidents and 1000 near misses. These should all be recorded.

For every incident you should:

  • Draw a quick sketch of the area where the incident occurred – showing where the door is, the stairs, machinery, tables etc, and importantly, where the person tripped. Mark an ‘X’ on the sketch to highlighted where the injured person (IP) fell.
  • Take photographs of what caused the incident (for example the carpet if that caused the injured person to trip) AND where they ended up (you can also mark this location on the sketch mentioned above). Take lots of photos from various different angles (close-ups, distance-shots etc.) and detail where you took the photos and why you chose those angles.
  • Gather documentary evidence – including what they were doing and how they were doing it, plus any risk assessments or training the individual has been on. You should also gather what inspections you undertake in that area (e.g. tripping hazards), how you do it (walk around the site) and how often you take these inspections (weekly for example).
  • Take witness statements from both the IP and those who were around to see it - always refer to the injured individual as the IP. When taking a statement from the IP, ask how they got injured, along with the ‘who’, ‘what’, ‘where’, ‘when’ and ‘why’. For witnesses you should take negative statements. Even if someone didn’t see anything, get them to sign a statement saying that. Whoever you’re taking statements from always ask open questions and get the information as soon as possible to record the facts as they appear at the time and prevent any skewed version of events.
  • Capture CCTV - download from 5-10 minutes before the incident occurring and 5-10 minutes afterwards.

By law some types of injuries and near-misses must be reported to the HSE. You can find guidance on this here. It’s also important to notify your employer’s liability insurance provider – not least because your insurer will play a key role in deciding how you should respond to a compensation claim.

More than just an insurance broker

Here at Marsh Commercial we’re more than just an insurance broker, we advise and provide practical solutions on all areas of operational risk* - including health and safety.

Let us support you to operate more efficiently and profitably, while providing the evidence that insurers are increasingly requesting to see. Together, we can help reduce your insurance premiums, minimise your need to claim, avoid prolonged business disruption and most importantly, keep your employees safe.

Find out more about our specialist training and consultancy services here.

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Sources

  1. static.aviva.io/aviva_claims_defensibility_lps.pdf
  2. hse.gov.uk/statistics/hssh2122.pdf
  3. the-compensation-experts.co.uk/accident-at-work-claims

 

*These products and services are provided by a range of internal consultants, Marsh Risk Consulting, and third party providers who do not form part of Marsh and McLennan Companies’ corporate group and are not affiliated to Marsh Ltd trading as Marsh Commercial and our affiliates. We disclaim any and all liability, including any express or implied warranties, whether oral or written, for that third party’s products and services and the performance of any if its obligations to you. You acknowledge that no representation has been made by us as to the fitness of the third party products and services for your particular intended purpose. If you decide to utilise the products and services offered by that third party, we will receive a commission for the introduction of this business.

The information contained herein is based on sources we believe reliable and should be understood to be general risk management and insurance information only. The information is not intended to be taken as advice with respect to any individual situation and cannot be relied upon as such. This article contains third party content and/or links to third party websites. Links to third party websites are provided as a convenience only. Marsh Commercial is not responsible or liable for any third party content or any third party website nor does it imply a recommendation or endorsement of such content, websites or services offered by third parties.

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