Contributary negligence?

HoolyNI

Hi,
Went to collect a trailer from one of our customers and discovered that their employee had opened both supporting posts....despite both posts being labelled warning not to do this....anyhow got him to lift one post with a forklift so i could get it back into position, but in the process a handle on the post came down and broke my finger. Was off for 3 weeks losing about £1100 in earnings.

Have now been told that insurance company will settle my loss of earnings etc, but only if i accept a degree of contributory negligence, have asked my solicitor to get them to clarify.

As I see it our customers employee was 100% to blame for the accident for ignoring clearly labelled warnings, also my own employer didn't supply safety gloves nor was i ever shown safest procedure for dealing with the situation.

Are they chancing their arm?

geri1965_2

Probably. Ask your solicitor to clarify the grounds on which they are alleging the contributory negligence, and what documentary evidence they have in support - for example, if they say they gave you safety gloves, they need to provide documentation to show that you were provided with them, or a statement from someone who will confirm that you were given them.

I wouldn't worry about it too much, very often contributory negligence is used as a negotiating tool - in the case of a smallish claim, it is often not worth pursuing this argument as the insurance company will end up paying more in increased solicitors costs.

In a very large claim it would be different because a reduction of 10-15% would result in a significant saving.

dacouch

It sounds like your lack of safety equipment and lack of Health and Safety training may have "contributed" towards the claim. If this is the case you may have a case against your own Employer for the balance of the claim.

Don't take this as gospal as there are people on MSE who know a hell of a lot more than me on the law side so hopefully they can post some advice.

To help them advice you can you confirm whether your employer gives you any personal protective equipment, has a health and safety policy, do they do risk assesements and do they train you in what you were doing at the time of the accident

The best thing you can do and no doubt they will adice you is to speak to your solicitor as they should know the full details of your claim

mattymoo

Who is your solicitor pursuing the claim against, your employer or the customer and their liability insurers.

I suspect it is the latter and the argument might come down to who was directing the work. If you instructed their employee to raise the leg (I assume we are talking artic trailer units here) and were then injured while assisting, they might be arguing that he was only following your direction.

Presumably the legs were faulty hence the warning notice. The solicitors might have an action against your own employers under the PUWER regs - provision and use of work equipment. Was it an ongoing problem with this trailer unit?

HoolyNI

Thanks all for replies.

To my mind the claim should have been against customers insurers, as their employee ignored warning labels on the support post.....its the posts that offer support between floor of trailer and roof.....remove both at same time and roof sags making it impossible on this particular trailer to get support back into place.

But solicitor advised me to claim against my own employers on the grounds of not being supplied with safety equipment nor satisfactory training.

Incidentally I was actually wearing gloves i'd supplied myself at time of the accident, I dread to think what could have happened otherwise.

geri1965_2

A claim against your own employers will usually have a higher chance of success, as they owe you a greater duty of care. Once they have settled your claim, they may decide to pursue a recovery of some or all of their outlay from the customer's insurers.

SolicitorMidlands

I think you have claimed against the CORRECT person, i.e. your employer. Greater duty of care.

With respect to contrib, I cannot see how they can argue the same. You did not know the poles were like this. Ask for written confirmation of the grounds they are alleging and the documents provided in support of the same and come back here and post so we can advise further.

HoolyNI

Just an update. 1st offer was 3800 settled at 5200 no mention of the contributary negligence, would have been happy at 3000

geri1965_2

Well done!!

SolicitorMidlands

Congrats - well done!

Crazy_Jamie

I'll third the congratulations. Good result.