James Harvey, a partner at Berryman Lace Mawer specialising in personal injury and corporate risk, explains how tennis clubs and businesses can prepare against any potential legal action.
In recent years, the government has sought to tackle the claims culture in Britain with a variety of legislation to bring down the cost of claims and reduce the regulatory burden for businesses. Nonetheless, claims continue to be made, but organisations can minimise the impact of claims on them.
This means working on systems, documents and training in relation to the risks faced by organisations. By doing so, claims numbers can be reduced and where claims do materialise they can be either defeated or their expense curtailed.
A defendant in a personal injury claim whether it be a public liability or employers’ liability claim will need to show that it had good systems in place to keep safe its employees or visitors to its premises. How simple or elaborate that system is will depend on the particular risk.
What a court is going to want to see is that risks have been identified and appropriate systems put in place to minimise those risks. The first step is therefore a risk assessment document. The second step is the system or procedure put in place to deal with that risk. The third step is a system for training people to know the risks and the procedures. The final step will be evaluation of risk, which will involve revisiting risk assessments and procedures and recording accidents and thereafter taking steps to avoid further incidents.
Where a risk assessment is undertaken, risks need to be identified and rated in terms of severity. Severity means both the likelihood of occurrence and the likely harm that would be caused. From this, the appropriate system should be created. A higher risk will require a more complete system. Within this a cost/benefit analysis should be undertaken.
By way of an example, any premises over which an organisation has control has a risk that a liquid spilt on the floor could cause someone to slip over and injure themselves. For a large event which attracts high numbers of visitors, this is a particularly high risk in terms of likelihood of occurrence, but relatively low in terms of likely harm. In a small sports hall used by a local club of 15 people the likelihood of occurrence and harm are both low. The large sporting event would require specific routine inspections throughout the day which are recorded and clear training on how a spillage should be dealt with. For the sports hall, some simple health and safety training for those in charge on general vigilance for spillages and other hazards would suffice.
Should an accident occur and a claim is brought, a defendant will need evidence of its system and procedures. This will mean written risk assessments, a statement setting out the method for the system, records of the system taking place, training documents, records that the training has taken place and records of reported accidents.
It is important therefore that these records are made and then kept. The limitation period for personal injury claims is three years, therefore just because an accident happened, say, 18 months ago, documents would still need to be retained for around that period.
However good the system and documents are, this will all fall down if staff are not trained properly to carry out the correct procedure and complete the records.
If a claim does get to court, the actions of the persons involved in the defendant organisations will be tested. It is not enough to say a system has been put in place; the defendant must show that it was carried out. Therefore, those people giving evidence need to demonstrate that their actions matched the written record.
Legal claims defensibility involves reviewing historic claims and incidents arising from the organisation’s activities. The review is undertaken by examining key documentation, policies and procedures within the organisation to consider the lessons from each event and importantly how to implement effective strategies for improvement. The outcomes are then used to achieve best practice.
This not only improves the ability to defend claims, it attacks the issue at source and helps to prevent or eradicate an existing claims culture. This will help to reduce premiums, reduce staff absences and increase profitability.
BLM’s legal defensibility product was shortlisted for Risk Management Application of the Year by Risk Management Magazine 2011.