No record incidents: the undocumented nuisance for those managing risk

Safety & Health Practitioner

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?

2. 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?

3. 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.

4. 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.

5. 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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