Business Boosters
“The Anatomy of a Civil Claim”
Marischal College
Aberdeen
13th February 2017
Our Mission is to….
•
•
•
•
Prevent Injuries...
Protect the Environment...
Protect our Clients Businesses...
Promote Best Practice...
Thanks for coming today…
I’m David Birkett – Managing Director of Aberdeenshire Safety
Management…
During todays presentation we will be following an Accident from
the start all the way through the Civil Claim Process…
Health and Safety is a serious subject but where I can, I’ll try to
inject a little humour…
Feel Free to ask questions at any time…
Can I ask that you all put your phones on silent…
If you really must take a call please leave the room…
Thanks for coming today…
You’ve already networked and made friends…
You’ve already place your cards in the hat for the Prize Draw…*
The presentation begins now…
Followed by Q&A…
Then the Prize Draw…
But first I really want to bust a few myths about Health and Safety
(HSE) People….
Myths and Misconceptions…
No1 - HSE People are just Killjoys
with Clipboards!
This is a tough one to shake off,
with reference to being killjoys,
well anyone who has ever
worked with me will tell you that
I like a bit of workplace japery as
much as the next worker.
HSE people are people too, invite
them into your practical jokes
and you may be surprised at how
much fun you have.
Myths and Misconceptions…
But we will always intervene
when Jokes and Japery introduce
un-necessary risk.
If anyone has a problem with
that then I’d suggest that the
problem is with them, they
probably know they’ve done
wrong and just don’t like being
told.
Clipboards, well I can’t speak for
all HSE people but I hate them.
Myths and Misconceptions…
No2 - The think they are Experts
at Everything!
Let’s just say that you go to a
restaurant, you browse the menu
and order something that looks
delicious. But when it arrives it is
over seasoned and tastes awful.
Would you have to be a Qualified
and Experienced Chef to
complain? of course not, the only
qualification you need is a sense
of taste.
Myths and Misconceptions…
Same goes for HSE People, it is
impossible for us to experts in
every field we’ve had to observe.
In my case I could be considered
an expert in ships and safety, but
I’m no expert in Subsea
Construction, Drilling, Subsea
Trenching, Mine Disposal, Lifting
Operations or even Hairdressing.
But I’ve worked with and seen
danger in them all.
Myths and Misconceptions…
To be an effective HSE Person
you just need to use your eyes
and ears and have a sense for
things which seem out of place
and could go wrong.
I’d even counter argue that being
an expert blinds you. The vision
of experts in any field is focused
in one direction, and quite rightly
so.
But focused vision is also limited
Myths and Misconceptions…
Misconception No3 - HSE People
just slow us down!
I understand that people just
want to “crack on” and get the
job done and any interruptions
may be frustrating…
But I would remind everyone
that “Delays are always shorter,
cheaper and less painful than
Accidents”.
Myths and Misconceptions…
My philosophy, and by extension
ASM’s philosophy has always been
that we would aim to “Empower
People to Work Safely” rather than
“Prevent Someone from Working”
I would encourage workers to talk
to the HSE team BEFORE doing
something. If they are anything like
me they’ll try their level best to find
a way for you to do something
safely rather than get in your way.
Believe it or not we want you to
"crack on” too.
Myths and Misconceptions…
So we aren’t Clipboard Wielding Killjoys, Self Appointed Experts or a
Roadblock in your working day.
If you use us properly we are there to help and will get you and
your staff to the end of the day with all your fingers and toes still
attached.
And if we are honest, that’s what’s most important.
Case Study
Acme Business Ltd employs 60 people as industrial painters, the
company is not pro-active about Health and Safety!
Their Employee "Mr. Idiot” is asked by his Supervisor, Mrs. A
Numpty to go into a store room and pour a chemical from a 25ltr
drum into a 1.5ltr Plastic Bottle formerly used for a popular soft
drink.
The intention being that a small amount of the substance would be
taken offsite for use at a client’s premises.
Case Study
The fumes from the chemical overcome Mr. Idiot and he drops the
25ltr drum. The drum lands on his right foot.
As the fumes continue to overcome Mr. Idiot he momentarily loses
consciousness and collapses.
Unfortunately the drum he has dropped is still open and leaking Mr.
Idiot is now lying in a puddle of the chemical.
Approximately 5 minutes pass before Mrs. Numpty looks for him
and finds Mr. Idiot unconscious in the store.
An ambulance is called and Mr. Idiot is taken to local A&E.
Case Study
Mr. Idiot suffers the following injuries;
Chemical Burns to approximately 15% of his body surface area (as a
result of falling into the puddle of the substance)
Fractured metatarsals 2&3 in his right foot (as a result of dropping
the 25ltr drum).
Burned Esophageal Membranes (as a result of inhaling the
substance).
Case Study
Consequences Pt1 – HSE Investigation.
Acme Business is given an improvement notice.
• Store taken out of service; Company given 28 days to install
adequate Ventilation and back up
• 28 days to get at least 1 first aider trained and onsite
• 1 week to get COSHH data for all chemicals onsite
• 2 further weeks to have all chemicals COSHH assessed.
• 1 week to ensure a decanting system (pumps) is implemented for
transfer of chemicals.
• Total cost of £2000
• Investigator recommends that Acme Business is Prosecuted for
numerous breaches of various HSE Regulations.
Case Study
Everyone is familiar with the work of the Police in ensuring Public
Safety, the Health and Safety Executive fulfil the same role for the
workforce.
Though they have no powers of arrest they take legally binding
action against businesses both before and after accidents.
• Improvement Notice = a legally binding order instructing a
business to make improvements to worker safety within a given
timeframe.
• Prohibition Notice = a legally binding order instructing a business
to cease a certain activity, or in severe circumstances cease
trading altogether until improvements are made.
Case Study
Consequences Pt2 – HSE Prosecution.
Procurator Fiscal assesses case and decides it is in the Public Interest
to Prosecute.
• Acme Business is found guilty of various breaches of regulations
under the Health and Safety at work act, namely…
• COSHH = Control of Substances Hazardous to health
• PUWER = Provision and Use of Work Equipment Regulations
• DSEAR = Dangerous Substances and Explosive Atmosphere
Regulations
• 1st aid at work Regulations.
Acme Business is fined £25,000 and made to pay £5000 in costs.
Prosecutions….
These cases often end in large fines and costs being paid. And
latterly companies and individuals within companies can now be
held criminally responsible should the evidence support criminal
negligence.
The Scottish Courts are pursuing more Health and Safety related
cases than ever before, and with a very high success rate!
Fines and other Criminal Penalties are generally not covered by
Employers and/or Public Liability Insurance, so when levied they
have to be paid from…. yes you’ve guessed it…. your company’s
precious profits!
Prosecutions….
Whilst the costs are just that, actual costs in pursuing the case the
fines are almost entirely at the discretion of the Judge hearing the
case, sentencing guidelines compel Judges to look at a businesses
circumstances before handing down a fine and or custodial
sentence.
Clearly the more serious the offence the higher the fine/sentence
will be.
As these fines have to be paid from your profits then if your
business can’t pay, that’s it, refinancing…. or…. bankrupt, Game
Over!
But if you think that’s the worst that’s going to happen, well think
again…….
Meet Darth Lawyer….
Meet Darth Lawyer….
*Disclaimer; ASM would like to point out that not all Lawyers,
Solicitors and persons in the Legal Profession are like Darth Lawyer.
There are many noble legal professionals doing great work to the
betterment of society.
The Dark Side of the Force….
Darth Lawyer Appears, for Acme Business it started with a
particularly nasty letter,
Darth Lawyer approached Mr. Idiot the day after he got hurt, most
likely using the force to relentlessly pursue their Ambulance….
Darth Lawyer knows that in a Civil Case the Burden of Proof is a lot
less than in a Criminal Prosecution, he also knows that the rewards
are potentially even greater….
Darth Lawyer knows that if someone loses a Criminal Prosecution
they will rarely fight back against a Civil Suit.
Darth Lawyer knows that even where a Criminal Prosecution has
failed a Civil Suit can still be successful.
The Dark Side of the Force…
Darth Lawyer is wise and strong with the Dark Side of the Force, he
waits patiently until the HSE and Criminal Courts Prosecute first. He
has his sinister agents observe and take notes. He lets the HSE,
Procurator Fiscal Acme’s own Lawyers do all the hard work.
Darth Lawyer knew that the case would be a public record and he
can see any and all details he wants to. He knew that Acme’s Public
and Employers Liability Insurance was at least £5 million per claim.
He knew that Actual and Punitive Damages are often many more
times than Criminal Penalties.
Darth Lawyer knew that as Acme had lost their Criminal Prosecution
their Insurers would most likely settle out of court. And at their
lowest ebb, when they already been prosecuted and fined…..
The Dark Side of the Force…
Darth Lawyer Struck!!!!
He hasn’t tried an actual case in Court for years
He is evil and opportunistic*
He has been very very successful
Consequences Pt3 – Civil Claim
• Mr. Idiot won his Civil Case against Acme Business Ltd. – He was
awarded Actual Damages of £15,000 and Punitive Damages of
£100,000.
The Anatomy of a Civil Claim…
The case study is semi fictional…
As you will know from the media, TV, Internet, Newspapers etc. the
UK is becoming an increasingly litigious society….
Everywhere you look there are TV adverts for Claims Management
Companies with straplines like “no win – no fee” “100% of the
compensation will be yours”.
As a claimant these adverts seem appealing and inviting, especially
as some of them are giving away free tablet computers so you can
“monitor your claim”.
But as a business owner you should find them terrifying, for claims
management companies you are a target!!!!
The Anatomy of a Civil Claim…
They don’t appreciate the hours and hours of hard work you have
put in to get where you are today….
They don’t consider the risks you have taken to establish a business
in these difficult times….
They don’t care about the livelihood of you and your employees….
They don’t discriminate between large and small companies….
They don’t even care about the supposed victims!...
They only care about one thing…
TAKING YOUR MONEY!
The Anatomy of a Civil Claim…
You may feel safe because you have your own Lawyer….
But I wouldn’t....
Does anyone here have a Lawyer “on a Retainer”?
This is the biggest scam perpetrated by the Legal Profession since
time immemorial….
It really is money for nothing....
You may pay your Lawyer a small annual fee so that you can gain
access to their services....
But they don’t have to tell you who else is giving them a retainer...
The Anatomy of a Civil Claim…
Chances are that the largest Companies in any area will have the
best Local Lawyers on a Retainer….
Imagine you as a small company had to defend yourself against a
large company....
Chances are you will both have the same Lawyer on Retainer....
Because you as a small/local Company will only have one....
But the large Company will have them all....
Do you think that your Lawyer will choose to fight the right side of
the argument?...
The Anatomy of a Civil Claim…
Of Course they won’t….
They’ll choose the client they can charge the most....
Which Company is that going to be?...
Your small/local Business....
Or the Big Guy with the deep wallet....
All you’ll get, if you are lucky is your retainer refunded....
This isn’t even illegal!
The Anatomy of a Civil Claim…
If one of these cases is pursued to a logical conclusion….
And a claimant is successful....
Damages get broken down into 2 parts....
Actual Damages = the Actual Financial Cost to the Claimant – Lost
Earnings – Any Personal Costs – Legal Fees
And...
Punitive Damages = intended as Compensation to the Claimant and
Punishment for the Defendant! These are often many times the
Actual Damages.
The Anatomy of a Civil Claim…
You may feel safe because you have Insurance….
The Anatomy of a Civil Claim…
£5 Million per Claim is a lot of money….
As a direct result of the rise in Civil Claims, Insurance Companies
are now more stringently investigating Incidents and Accidents
where they may be held liable....
This starts when you report your Accident to your Insurance
Company, if they are worried at all they’ll offer you an Investigator,
maybe even a Lawyer….
It sounds like they want to help you, but don’t be fooled....
The Anatomy of a Civil Claim…
Dependant on the results of their investigations, Insurance
Companies are now commonly counter suing their own Clients
following a payout....
If their Lawyer and Investigator previously found even the slightest
thing the Insurer will sue you for their “uninsured losses” as you
will have “breached the terms of your Policy”
That Vicious Guard Dog that you paid to protect you will soon turn
on you.....
If you try to take it’s food away!
The Anatomy of a Civil Claim…
Case Study
Consequences Pt4 – Insurance Countersuit
For the 3rd time after the same Accident Acme Business finds itself
in court!
As Acme Business were in breach of their Insurance they are being
sued for the following…
• Damages Awarded to Mr Idiot
• Costs in defending Acme against Mr Idiot.
• Interest
Case Study
Consequences Pt4 – Insurance Countersuit
Item
Lawyer (20 hrs)
Legal Assistant
Expert Witness (5hrs)
Actual Damages
Punitive Damages
Totals
Hourly rate (£)
£200
£110
£200
N/A
N/A
Total
£4000
£2200
£1000
£15,000
£100,000
£122,200
Keep in mind that Acme Business has already paid out £32,000
when the HSE Improvement Action and Criminal Prosecution were
all concluded.
The Anatomy of a Civil Claim…
If you think back to when you first started your business you were
probably offered lots of free advice….
Some friendly advice from other business people....
Financial advice from your Bank Manager and/or Accountant....
But I’ll bet your Lawyers never offered any free advice (even after
taking your retainer)....
And I’d also be willing to bet that any advice from your Insurers was
buried deep within the fine print of your Policies where they know
you are unlikely to look....
The Anatomy of a Civil Claim…
For the Lawyers….
For the Insurers….
And the Large Companies....
Winning and Losing these cases is just seen as one of the costs of
doing business....
But the cost of losing one of these cases would be catastrophic to
my business....
How would it affect yours?
Why am I just hearing about this now?
I’d love to be able to say this is because Aberdeenshire Safety has
some unique insight and knowledge….
We have been involved in high risk industries for some time now.
All too often we have found that smaller/local companies are ill
prepared for the fateful day when one of their staff or customers
has an accident on their premises.
There is one thing we can promise you, the Claims Management
Companies, Insurance Companies and their Lawyers are more than
prepared!
How big is this problem?
HSE Lessons… from Josef Stalin?
How big is this problem?
HSE Lessons… from Josef Stalin?
“The death of one man is a tragedy, the death of millions is a
statistic.”
That’s what Soviet dictator Joseph Stalin allegedly once said to U.S.
ambassador Averill Harriman.
And while this may seem like a cold and callous take on life when
analysing a number of fatalities, in order to learn lessons it is
necessary to become slightly detached
(though maybe not quite as cold hearted as Stalin).
How big is this problem?
There is a bit of a lag between Accidents happening and statistics
being made available but the UK Fatal Accident Statistics reveal
some interesting facts if analysed from a detached perspective.
The figures for 2015/16 are at this stage provisional, covering the
twelve months 1 April 2015 to 31 March 2016, and will be finalised
in July 2017 following any necessary adjustments.
How big is this problem?
Totals….
The provisional figure for the number of workers fatally injured in
2015/16 is 144, and corresponds to a rate of fatal injury of 0.46
deaths per 100,000 workers as a UK National Average.
The provisional figure for the members of the public fatally injured
in connection with industrial accidents 2015/16 is 103.
This gives us a total of 247 fatalities connected to industrial
accidents in 2015/16.
How big is this problem?
Industrial Sectors Ranked by Danger of Death to Workers….
Agriculture;
• 29 total fatalities
• 27 Workers (7.73 per 100,000)
• 17 self employed (9.41 per 100,000)
• 10 employees (5.92 per 100,000)
• 2 Members of the Public killed.
Utilities; Gas, Electric, Water Supplies, Waste Recycling; most
fatalities (6) were in Waste Recycling
• 8 total fatalities
• 8 workers (5.95 per 100,000)
• All were employees
• No members of the Public killed
How big is this problem?
Industrial Sectors Ranked by Danger of Death to Workers….
Construction;
• 45 total fatalities
• 43 Workers (1.94 per 100,000)
• 16 self employed (1.78 per 100,000)
• 27 Employees (2.05 per 100,000)
• 2 members of the Public.
Manufacturing;
• 27 total fatalities (0.92 per 100,000)
• 2 Self Employed (0.86 per 100,000)
• 25 Employees (0.93 per 100,000)
• No Members of the Public killed
How big is this problem?
Industrial Sectors Ranked by Danger of Death to Workers….
Services;
• 136 total fatalities
• 3 Self Employed (0.11 per 100,000)
• 33 Employees (0.15 per 100,000)
• 99 Members of the Public killed
Home Nations* ranked by Danger of Death to Workers….
• Wales – (0.93 per 100,000)
• Scotland – (0.60 per 100,000)
• England – (0.42 per 100,000)
• UK – (0.46 per 100,000)
• (Northern Ireland keeps and compiles separate statistics)*
So what does it all mean in words not statistics….
We all have an estimated 1 in 33,000 chance of being killed at
work….. assuming you enter the workforce at 18 and work
continually until retirement at 65 (47 years) and further assuming
that you are exposed to the Uk average risk of death at work.
The most dangerous job in the UK is….. A Self Employed Farmer in
Wales, Self Employed Farmers are 20 times more likely to die at
work than the national average, Wales is twice as dangerous to work
in as the UK as a whole. Added together that makes a horrifying 40
times more likely to be killed at work than the national average.
That is a 1 in 825 chance of dying during a working life of 47 years.
So what does it all mean in words not statistics….
The most dangerous industry in the UK to work in is…. Agriculture,
and strangely the only industry in which it is more dangerous to be
self employed.
The safest industry in the UK to work in is…. The service industries,
given that they account for the largest part of our economy these
days it’s quite surprising, but…. It is the Industry which kills almost
all of the Members of the Public who are unfortunate enough to be
caught up Industrial Accidents.
Of course there is an emotional impact, 247 people have died at
work and we at ASM believe that is 247 too much. Every one of
those is a Family, Friends and Colleagues mourning a loss.
So what does it all mean in words not statistics….
And the impact on business is considerable too.
So what can I do?
In a country of 63 million people, with a workforce of 32 million
Fatalities at work are thankfully rare;
But fatalities are the most tragic of accidents and the most
conspicuous, if we only look at them we run the risk of missing the
big picture.
If we follow the Safety Iceberg Principle then you’ll see that
Fatalities are the tip! the way to eradicate them is to work on all
the stuff that lurks unseen “below the waterline”.
So what can I do?
The Titanic Disaster is perhaps
the most prominent and relevant
example of this.
The point of the Iceberg is what
tore through her hull, but the ice
below the water,
and the myriad of safety issues
onboard the vessel were keeping
that point afloat.
So what can I do?
And that is where ASM can help,
It is only by being pro-active
about safety that business can
reduce the ice that lurks beneath
the waterline,
only by being pro-active can we
prevent tragedies and allow your
business to float over the top of
the danger
and continue its safe passage to
success.
So going back to this guy?
So going back to this guy?
Join the Rebellion Today…..
Don’t wait for Darth Lawyer to Attack! Be ready for him, Draw your
Lightsabre of Safety and Strike back at him! Aberdeenshire Safety
Management (ASM) is manned with Safety Jedi ready to come to
your aid.
• Only together can we defeat Darth Lawyer and his Evil Empire!
• Only together can we bring Safety and Prosperity to your
Business!
• We are contactable via the force,
• but if you have not yet learned to harness it
• Talk to me afterwards
So going back to this guy?
*Disclaimer; ASM would again like to point out that not all Lawyers,
Solicitors and persons in the Legal Profession are like Darth Lawyer.
There are many noble legal professionals doing great work to the
betterment of society.
Why Aberdeenshire Safety Management?
Shameless Sales Pitch!
Why Aberdeenshire Safety Management?
With a wide range of Local and International experience…
Ranging from Unexploded Mine Disposal…
Through Subsea Construction….
Public Events….
And Childrens’ Soft Play Centres…
ASM are ideally placed to help Business’s of all types throughout
Aberdeen City, Shire and further afield if necessary.
Why Aberdeenshire Safety Management?
We firmly believe that prevention is better than a cure….
That being pro-active is better than being re-active….
We offer “Big Business Safety - for a Small Business Cost”…
Aberdeenshire Safety Management can help your business plan to
prevent the worst happening….
We could tailor a Safety Management System to suit your business
needs….
Ensure you are compliant with any Health and Safety Legislation
applying to your business….
Who are Aberdeenshire Safety Management?
David Birkett – Managing Director;
Peterhead born and bred, I have a wealth of health and safety
experience from over 20 years working in various positions in the
Maritime and Oil and Gas industries.
Starting my Career as an Able Seaman I rose through the ranks to
become a Merchant Navy Officer before being asked to leave the
sea behind and offer my insight to the Companies HSEQ
Department. Once there I made my presence felt and was promoted
to HSE Manager soon afterward.
I then felt the lure of the sea call me back and moved into an
Offshore HSEQ Coaching Position where I added to my knowledge
base working with clients worldwide on subsea construction and
other projects.
Why Aberdeenshire Safety Management?
Prior to starting this Company I worked for a Large Company in the
HSEQ Dept….
As stated previously I have repeatedly found that smaller
companies are ill prepared for the fateful day when one of their
staff or customers has an accident on their premises….
My job involved Preparing my Company for this eventuality in
making their HSEQ Systems simple to use and robust enough to
protect their employees....
I was their Lead Accident Investigator....
It was also my job to Strategise our response to Civil Claims….
Why Aberdeenshire Safety Management?
I now find myself as a local business owner….
But I know how to prepare a business to be pro-active about
avoiding problems like this....
And I know just how the Claimants will attack you....
I also know just how your Insurers will come for you to pick over
the bones of what’s left....
I’ve been successful in this field many many times....
Why Aberdeenshire Safety Management?
As a Small Business Owner myself I know what hard work it can be
and how precarious it is….
As an expert in HSEQ Management Systems I can prepare you in an
effort to prevent these problems....
If after all that problems still occur I can analyse it and help you to
prevent it from happening again....
Doesn’t that sound that sound like just the kind of ally you need in
your corner?
Why should we bother with all this health and safety
stuff? I’ve never needed to before?
It may well be that you have never been involved in anything like
this so don’t see the need....
And the objective of being in business is of course, to make
money....
I understand that....
I really do....
But....
Why should we bother with all this health and safety
stuff? I’ve never needed to before?
Every business who has been on the wrong end of a civil claim
wishes they had bothered sooner….
And given what you have just heard presented to you is the fact that
you have never been involved in a Civil Claim down to good
judgement? Or good luck?....
Given your investment in your business up to now....
Is it prudent to leave this to good luck?
Or would it preferable to exercise good judgment?
How much will it cost?
Different Companies with Different Hazards will have differing
costs….
Like the Lawyers our advice, time and expertise isn’t free.
But I can tell you that our service shouldn’t cost any more than
equivalent time with a reasonably priced tradesman....
But how much it will cost you is not the question you should ask....
The most pertinent question is this….
How much will it save?....
How much will it cost?
....the simple answer is that it could save your whole business....
Admittedly good Health, Safety and Environmental Practices rarely
make money for anyone so the benefits may be difficult to foresee.
But they are...
• The Accident which doesn't happen...
• The Injury that isn't sustained...
• The Absence which doesn't happen...
• The Prosecution which isn't pursued...
• The Civil Claim which is not filed…
• And finally the loss which does not affect your business...
How much will it cost?
Here is the Projected Cost of the Pro-Active Approach
Item
Initial Consultation
Hazid Report
3 full days of HSE
support
Original Deficiencies
Hourly rate (£)
Free
£40+vat
£40+vat
Total
Free
£320+vat
£960+vat
N/A
£2000
So a Pro-Active solution would have cost £3280 (+£256 of VAT)
But the Re-Active Solution would have cost £154,000
How much will it cost?
Given that an Average Solicitor will cost about £200 per hour....
And that’s just the Solicitor, Investigators, Assistants, Expert
Witnesses etc. will all add to that cost....
And you can get our expert advice for the price of a Tradesman….
I think it’s clear we could save you quite a lot....
So the question facing your business is....
How much will it cost?
Would you rather pay a Lawyer over £200 per hour to help you react
to something when it is already too late?
Or would you like to get pro-active and get the assistance of
Aberdeenshire Safety Management for the Price of a Trademsan?
As we said at the start our Mission is to….
•
•
•
•
Prevent Injuries...
Protect the Environment...
Protect our Clients Businesses...
Promote Best Practice...
Does Anyone have any Questions?
Thank you all for coming….
Feel free to conatct us at the following details
01779 475761 – 07817423839 - 07944110340