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June 3, 2014

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No record incidents: the undocumented nuisance for those managing risk

Kari Hansen, partner, and Hayley Riach, solicitor, Hill Dickinson retail team

In recent times, the number of employers’ and public liability claims brought where there is no record of an incident having occurred has been on the rise. This is a thorn in the side for all companies and has been particularly prevalent for retailers.  What does it mean and how should such cases be approached? 

A thorn in the side

When an incident is not reported either by an employee or a member of the public, the defendant loses the benefit of any contemporaneous evidence to help refute the allegations made. The onus of proving that the incident occurred in the manner alleged falls onto the claimant to prove which may at first glance seem advantageous to the defendant. However, the Courts seem to accept that it is sufficient for the claimant to provide contemporaneous medical records confirming an injury around the time of the incident as proof that the incident occurred.  More often than not, the medical records do not refer to where the incident occurred or correspond with the manner of the incident alleged, but in the absence of factors which would call into question the claimant’s credibility, even they are deemed to be satisfactory proof. 

That being the case, the question is how do defendants approach no record incident claims to be satisfied that an incident occurred as alleged and to present the best possible defence?

Tactical arguments and investigations

  1. Fraud indicators          

These would raise credibility issues.  Has the claimant brought any previous similar claims? Serial claimants should raise alarm bells.  Extra vigilance should be taken to put the claimant to strict proof that the incident occurred as alleged.  If the claimant is inconsistent, the Court is unlikely to deem that their word alone will suffice.

Is the claimant in a fraud ‘hotspot’? Particular interest should be taken in locations where fraudulent activity is rife. This also applies to certain firms of claimant solicitors who are known to bring cases where no record of the incident is held. 

Locality generally? Where does the claimant live in relation to the area where the incident occurred? Fraudulent claims are less likely to be brought in areas local to the claimant.

Documentation. Can the claimant produce any documentation confirming they were at the incident location? For example, for retailers a receipt from purchases made perhaps?

  1. Severity of the injury  

If the claimant is alleging that they have sustained a particularly nasty injury, then common sense suggests that they would make an effort to ensure it was reported. It is highly unlikely that an incident resulting in serious injury would occur without anyone in the area being aware, or being made aware, of it. The claimant’s medical records will play an important part in determining whether or not this incident occurred but that does not ultimately prove a breach occurred. Did the claimant attend a hospital or their GP following the incident? If not, questions need to be asked why not?

  1. Inspection and maintenance records

It is easy to become too focused on the fact that there is no record of an incident occurring. Regardless of whether the claimant can prove the incident occurred, it is important to remember that there is still a case to answer. Inspection and maintenance records will be key in showing that the allegations are unfounded on the basis that even if the incident occurred as alleged, there was no negligence and/or breach of duty.  This in itself provides a strong platform to maintain a denial.

  1. Witness evidence from members of staff working on the alleged day in question                                                            

If nothing is known to have happened, these statements will obviously not relate to the incident directly. However, statements might be obtained confirming that certain systems, checks or procedures were in place or when certain checks were conducted on the day of the incident and by whom. This will again help to refute and repudiate any allegations put forward by the claimant.

  1. Previous incidents or complaints

Consider whether the allegations made by the claimant are a known issue. Have there been many previous similar incidents prior to this or has the area in question been subject to multiple complaints from other customers or indeed staff members? If the answer to these two questions is no then this serves to strengthen the position and the denial being put forward.

Taking a stance

The EL/PL portal has not been a deterrent to no incident record claims and as such, claims of this nature continue to be on the rise.  It is important that defendants demonstrate that they will not simply roll over and settle cases on the basis of the claimant’s word alone.  Where there is doubt over whether an incident occurred, claimants should be put to strict proof and investigations made so that you are satisfied that the incident happened as alleged. The message should be sent to claimants and claimant firms alike that this an area of strong focus for all potential defendants and not therefore the quick slam dunk they think it will be.

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Adrian Stammers
Adrian Stammers
9 years ago

At present the balance is firmly in the favour of the claimant who only have to evidence that an incident is likely to have happened. The key issue is the length of time, 3 years, these leaches on society have to make a claim, the law needs changing to something similar to the Notice of Intended Prosecution used in Traffic Law. It should be a legal requirement for any incident leading to injury or loss must be reported within 14 days to the party believed to be responsible and a copy of the report should be kept by the potential… Read more »

andrew davies
andrew davies
9 years ago

The issue of late accident reporting or not reporting at all is a becoming a major issue for insurers also – in the case of employers liability the insurer may have an option to refuse to settle a claim if there is late notification where it is stated as a policy condition – though rare for insurers to take up such clauses I am surprised this was not noted in the article

John Bartlett
John Bartlett
9 years ago

In my experience it has little to do if the company want to fight a claim. It’s the insurance companies that roll over because they say they can’t fight a claim as its to costly. I have recently been asked if we had a risk assessment in place that covered walking in a warehouse in the dark. Work that one out! Another payout coming.

Malcolm Griffiths
Malcolm Griffiths
9 years ago

This article is surely flawed. Do the people who wrote it know what they are saying? The tactical arguments and points listed all become redundant if, as stated, judges accept claims that an INCIDENT occurred, without any link to associate to the Defendant, except the fact of contemporaneous medical records that a Claimant had been injured. Perhaps the writers can quote examples that can demonstrate this, or is it just another piece of loony-tune invention designed to make companies even more aware of their liabilities and to make more money for safety specialists? If so, perhaps it could backfire because,… Read more »

Ron James
Ron James
9 years ago

Having dealt with these type of claims,(Public Building) I am aware that there are a number of chancers who are willing to use the No Win-No Fee processes to their own end. It had come to a point where CCTV cameras were installed all over the premises to not only provide security, but to protect the company from these type of litigeous parasites winning what must seem easy money. What has happened to the proposed changes to the process whereby any claimant has to pay a deposit up front if they believe they have a genuine claim which is paid… Read more »

Xhetan bushi
Xhetan bushi
7 years ago
Reply to  Ron James

Dear Ron

I am not even sure if you will get this message, but I feel like you would help to me with a claim that is going against me and wonder if there is anyway that I can contact to discuss further.
Thank you