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LIABILITY CLAIMS MANAGEMENT
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examples
Public Liability
Claims Manual
This information is provided
only as an example only and you should consult with your broker or
Insurance company regarding their exact procedures:
How an organisation
responds to an incident will have a significant impact on the size of
the potential loss. The full magnitude of the loss may not be realised
until years after the actual time of the incident for liability risks.
Our experience shows that the most critical time for action is
immediately after the incident occurs. Prompt, appropriate action can
have a significant effect on the final magnitude of any loss.
A
good general incident management procedure will include:
-
Immediate
systematic reporting of potential liability incidents to a designated
company officer. All staff (including casual and temporary) and
contractors (including security and cleaners) should be aware of this
requirement and trained in the procedures.
-
A specific
form should be provided to record all relevant details of incidents and
people involved.
-
Prompt
reporting by designated company officer to insurance broker and/or
insurance company.
-
All staff
made aware that liability is not to be admitted to third parties.
-
Offer
immediate medical or other assistance to injured parties (without
admitting liability).
-
Maintain
contact with injured parties (as advised by insurance company).
-
A trigger
to provide an immediate reaction to prevent further recurrence ie
barricade area, mop up spills.
-
Written
record of all written and verbal correspondence between you, the third
party and any others involved.
-
With the
insurers approval, rapid settlement of claims to “nip them in the bud”.
-
Prompt
legal advice obtained where necessary via the insurer.
-
Prompt
investigation of the facts surrounding all incidents by your own staff
(for simple matters) or professional investigators if deemed necessary
by the insurance company.
-
Recording
of all incident data in a common data base for multiple sites to
determine trends and prevention strategies.
The fact that an accident occurs in the premises you manage, does
not mean that the Owner is automatically responsible for payment of
compensation for injury or damage resulting from the accident.
Customers and other members of the public (third parties), who are
injured or suffer some damage to their property, will usually report
the accident to your office and on other occasions, you will be
called to the scene of an accident.
The purpose of an incident reporting system is to obtain:
a) All the
details necessary to help prevent a recurrence of the accident.
b) As much
information as possible for the Owner's insurance company to enable
them to process any claim that may eventuate and provide claims
analysis data.
When interviewing members of the public who are reporting accidents,
involving either injury or property damage, the following points are
extremely important:
a) Never admit
liability or take action which may be seen as an admission of
liability.
b) Complete a
Public Liability Incident Form (or similar) and forward to your
Insurance Broker or Insurance Underwriter. Please note that the
Incident Forms are usually for internal use only and should not be
given to the claimant.
c) If the
injuries sustained by the claimant are serious, you may also have to
also arrange for an Investigation Form to be completed and sent to
your Manager
d) Should the claimant decide to pursue the incident
further, then have them put in writing the nature of the injury
sustained, including where it happened, how it happened and details
of any losses which were incurred as a direct result of the injury.
Direct all correspondence and writs from claimant or their legal
advisers to your Broker, Insurer or 3rd Party Claims Manager
immediately upon receipt
An accident usually highlights deficiencies in the interaction
between the design of the building, plant or equipment, the
behaviour of the individuals and the environment existing at the
time.
It follows that accident prevention must be directed towards the
control of any deficiencies detected. A useful strategy is to
consider these under the following headings:
Behaviour of individuals (person)
Design of building, plant and equipment (building/machine)
Environment existing at the time (environment)
Accident investigation is plagued with issues which do not help to
prevent accidents. These include such allegations regarding injured
persons as follows:
Some persons even attribute an accident to fate or an "Act of God"!
These so called "reasons" for accidents are far too general to be of
any value in determining accident related factors and obstruct the
objective of developing a safe environment.
Often it is implied that someone was to "blame for the accident" and
this has led to the quite inaccurate belief that human error
"causes" accidents. In some cases it is true to say that certain
human behaviour was necessary for an accident to have occurred, it
is however totally wrong to "blame" human error alone as the sole
accident cause.
Many terms in traditional safety management jargon have in‑built
value judgements expressed. Such terms include unsafe act, unsafe
conditions, fault, blame, carelessness and cause. These terms tend
to create the impression of "single factor causation" rather than
highlight the often considerable number of related factors present
in an accident.
Loss assessors are insurance or applicant solicitor investigators
who thoroughly investigate accidents and make recommendations to
their principle on the liability of a particular matter.
Most loss assessors are appointed by your insurer, however sometimes
a loss assessor will make contact representing the applicants
solicitors.
An assessor should never be allowed access to your site until your
have established who appointed them. Assessors usually phone
before they arrive to make an appointment. Always verify an
assessors details with your insurer before you allow the assessor
access to your site.
If they are not appointed by your insurer it is better if they are
not brought on site.
An assessor will often prepare a case for your solicitor. The
assessor will need to take detailed statements from employees who
either witnessed the accident or had some type of post accident
involvement. The assessor will ask specific questions relating to
the claim. He will assist you in framing your words so as not
admitting liability.
An insurer appointed assessor should receive full co-operation in
for filling his task.
The local authorities such as police or government representatives
may conduct their own investigation into any serious accident. You
will be required to assist them with their investigation. They may
require a statement. The rules which you should follow are as
follows:
·
state the facts only relating to the accident, tell the truth.
·
give exact details of your involvement
·
do not give opinions and
·
do not make reference to prior incidents or accident unless
especially requested.
Accident investigation is the systematic reconstruction of the
occurrence. It is important to collect as much information as
possible at the time of the accident as it is likely that key
contributory factors may not be the same at a later date.
The main aim for Accident investigation is solely to put measures in
place to prevent re-occurrences not to assign blame.. Liability
assessment will be carried out by an insurer appointed assessor the
information gathered at the initial investigation will be essential
for a productive assessment
An accident would be investigated in the following circumstances
·
People or a person has been injured
·
damage to property, or
·
an event which interfered with a business activity
Information collection
Information collection is a very important issue without reliable
information adequate prevention techniques may not result and poor
or incomplete information may lead to vital facts being excluded in
court resulting in a considerable increase in liability. Adopt a
systematic approach to the collection of information. Deal with the
people first, then the accident site, and lastly the environment
Collecting information from injured parties and witnesses.
It is not your responsibility to get statements nor is it necessary
for you to have any documents signed . Get the facts and write them
down. If the witnesses are wiling to give you their Name and
Address, the information which follows is useful and may even be
useful at a later date, such a court appearance.
Some witnesses and even some injured individuals often do not want
to be identified. Take a record of your discussions with them as
this information can be used to help piece together events leading
to the accident and it may assist you in developing an accident
prevention solution reducing the likelihood of recurrence. Remember
some injured people are embarrassed about their accident and they do
not wish to be identified and some witnesses don’t wish to be
contacted at a later date. In both of these cases respect their
wishes but still record your discussions with them and keep these
notes with you accident investigation.
Accident scene are full of evidence relating to the accident. When
there has been a serious accident keep the public away if
possible. Take photographs of the scene and record damage, pin
point the actual site and photograph anything that may indicate
causes of the accident.
Finally take notes of the environment this include the weather if it
was a contributor, surfaces, lighting etc.
Analyse the accident and identify related factors. Make sure you
have looked at all the information. Reconstruct the accident on
paper by assembling all the facts.
List the causes of the accident to determine how these may be
controlled.
While the investigation proceeds, management must be mindful of
their responsibility to ensure their own and the organisation's
integrity is not compromised. Investigations must be kept
objective, factual and free from any attempt to assign blame.
In every accident there will be related factors from the person,
building/machine and environment areas. Without these, an accident
cannot occur.
The difference between the various factors is not their relative
importance in terms of causation. A distinction does however exist
in terms of "controllability" of the causes, which dictates the
course of corrective action. Some causes are easy to control,
others are difficult or even impossible to control. In practice
however, it will be found that most causes lie between these two
extremes.
Investigation must be carried out as soon as possible after the
incident has taken place, since the reliability of witnesses will
reduce if there is any delay in questioning. All incidents should
be investigated by a member of the management team.
Accident/Incident Report Forms enable the routine personal accident
details such as name, place, time to be easily recorded. Other
areas of the form allow related factor details to be added.
Determining the answers to the following questions will ensure the
investigator is able to conduct a thorough analysis of the available
evidence. This will lead to a plan of action or recommendations to
prevent further or similar accidents:
1.
What actually happened
2.
How did it happen
3.
Why did it happen
4.
Action taken
The most thorough accident investigation is worthless if the
corrective action is not taken. The investigation must not be
considered finished until "follow‑up" allows the responsible manager
to determine that recommended corrective action has been
implemented. The report form should then be signed off by that
manager as complete.
Visit the scene of the accident. It is rarely possible to gain a
complete feeling for the situation without being present to
observe. Observation will also prompt questions as your thoughts
adjust to the circumstances.
Photographs are very useful in recording the scene for future
analysis. Remember, you may be intimately familiar with the
area/activity, but it may not be as you remember it on the occasion
of the incident under investigation.
Remember, investigations must be carried out in an objective manner
and be based on facts
There is always the possibility of getting incorrect information
from persons who, rightly or wrongly, have a feeling of
responsibility or guilt.
It is not possible to totally eliminate liability incidents.
However, thorough investigation focused on accident prevention can
go a long way towards reducing needless pain and suffering or
unnecessary loss or damage and as a consequence prove a very
effective tool in controlling the number of incidents which may lead
to claims.
Since the cost of insurance is directly related to the cost of
claims, accident investigation has a significant long term benefit
in controlling the escalation in insurance premiums.
The rules for the reporting of accidents vary from state to state .
There are extreme variations in the required level of reporting from
country to country. If there is a serious accident call the local
police and explain what has occurred. The local police should be
able to assist you if any other local Authorities are need.
After you have attended to the injured person the following
procedure is to be adopted in respect of all potential public
liability claims involving injury or damage to the property of third
parties:‑
If an accident is obviously serious please telephone details to your
Broker or Insurer immediately, otherwise notification can be made by
completing a "Public Liability Accident/Incident Report".
Forward the completed Incident Report form to your broker or insurer
Upon receipt of the completed claim form, the Insurers will decide
whether to negotiate direct with the third party or appoint a loss
assessor to attend.
If a loss assessor is appointed, you will be informed and provided
with the name of the assessor involved.
In the event of injury accidents, you are expected to render
reasonable assistance to the injured person but never admit
liability under any circumstances.
If an injured party approaches the company to lodge a claim or
wishes to know who your insurers are, you should co-operate as much
as possible. Accept any papers, doctors bills, ambulance bills and
any other accounts from the claimant and forward these to your
insurer as soon as possible.
·
Do not discuss the accident with the claimant
·
Do not attempt to negotiate with a third party or their legal
representatives.
·
Do not admit liability
·
Unless there is an arrangement in place Do not make any payments to
the claimant.
Correspondence received from the third party or their solicitor
should be forwarded immediately to the insurer, but should be
acknowledged by you.
If any advice or assistance is required relative to a claim or
possible claim please contact your broker or insurer
It has become evident during claims investigations that some
property management personnel are not fully aware of the
consequences of admitting liability at the time of an accident
whilst other staff are not confident of the correct procedure to be
adopted in dealing with accidents.
The following are detailed instructions to staff on how to deal with
Public Liability claim situations.
These instructions should be circulated to all existing employees
who are likely to have public contact, and all new employees must be
made familiar with the procedures as part of their induction
training, to ensure consistency in dealing with accidents.
Types Of Claims
The most common types of claims fall into a small number of
categories
-
slips trips and falls, make up the majority of claims
-
stress and anxiety, due to hold ups, elevator malfunction and
-
falling objects ie striking against or struck by
-
Main thoroughfares and entry areas, - mostly slips trips and
falls
-
Car parks, due to poor lighting, low headroom, slippery speed
humps and painted surfaces, poorly maintained egress and access
and ventilation - mostly slips trips and falls
-
Stairways, uneven surfaces, chipped or broken, loose articles
left on stairs - mostly slips trips and falls
-
Hotel lobbies, baggage left at reception and customer trips over
own or someone else’s bag - mostly slips trips and falls
-
Hotel owned restaurants, food on floor. Dance floors - mostly
slips trips and falls
-
Hotel bathrooms usually falls in shower/bath. Can be very
serious as often result in very serious outcome and sometimes
death.
-
Swimming pools usually falls and common are diving into shallow
water. Both of these injuries can be very serious as often
result in very severe injury and sometimes death. Other
injuries or death often occur as a result of heart attack and
stroke and whilst these can be shown not to be in the control of
the owner/occupier measures need to be in place to remove the
threat of litigation from the point of view contributory
negligence
-
Gymnasiums or health centres are areas where a variety of
injuries occur from simple strain sprains to multiple injuries
and even death. Once again there is a certain amount of
responsibility carried by the user however negligence through
poor signage of rules regulation and supervision may cause your
business to be brought into a claim.
-
Bars and the local surroundings usually related to alcohol
consumption, sometimes slips due to wet floors, objects, food or
drink, and objects left on floor - or a combination of all of
these.
-
Failure to report an existing unsafe situation
-
Failure to respond in a reasonable time frame
-
Poor or substandard repairs
-
Poor cleaning response times
-
Poor maintenance response times
-
Unsuitable storage of equipment
-
Poor maintenance, poor cleaning and or choice of products
-
Lighting, lux and shadows
-
Floor surfaces, Floor coverings
-
Travelators - trolley design, escalators
-
Poor design steps Vrs ramps
-
Pre-occupation by the applicant at the time of the injury, ie
kids, life, pressure
-
Co-efficient of friction - the resistance of slip between the
floor and a persons shoe.
-
Equipment not fixed at wall or floor ie bookcases
-
Windows, doors and display glass type
-
Uneven surfaces ie floor mat meets floor, carpet meets tiles
-
Water, oil or other spills
-
Raining,
-
Windy,
-
Heat
-
Cold
-
Combinations of all of the above
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entry points
-
food halls
-
fruit shops
-
hot bread shops flour on floor
-
cake shops, pies hot display cases. Children Vrs adults
-
kids fast food areas, McDonalds
-
step into or step down into shops
-
grills or grates in walk areas (high heels)
-
car parks dry area before customer comes into centre
-
vendors and deliveries through public access way
-
supermarkets near freezes and refrigerators
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car parks
-
ramps
-
escalators
-
travelators
-
elevators
-
stairs and step
-
swimming pools
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gymnasiums
-
children day care centres
-
uncovered areas which are thoroughfares, raining, public runs
to next covered section
While ‘strict
liability’ can be specified under contracts, or is required by laws such as
those covering occupational health and safety or consumer protection, a
public liability claim usually seeks financial compensation by arguing that the
injury or loss sustained arose because of a breach of the ‘duty of care’ owed to
the third party by the insured.
To
succeed, an injured party needs to demonstrate:
-
the existence of a
duty of care;
-
a breach of that
duty; and
-
material damage as
a consequence of the breach of duty.
The
existence and scope of duty of care is a matter determined by the courts
applying common law principles. The Law Council of Australia said that:
… broadly,
negligence requires someone who has a duty of care to take reasonable care to
protect against forseeable harm. What is reasonable is decided on balancing the
likelihood and severity of an injury that may occur on the one hand, and the
cost and inconvenience of obviating that risk on the other hand.
Some
states have recently passed legislation dealing with some aspects of public
liability claims, including payouts and processes. But this aside, there is
little legislative guidance as to how liability is to be judged and compensation
determined:
Claims are dealt
with under ‘common law’ principles established through a long history of case
law and, if litigated, are made by way of civil actions in the relevant
jurisdiction.
Consequently, the extent of damages and the matters considered in arriving at
that estimate are also matters for the courts. The general principle upon which
the courts operate is that:
… the damages to
be recovered are in money terms no more and no less than the plaintiff’s actual
loss.
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