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May 15, 2012

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SHE 12 – Seven habits in defending personal-injuries claims

“Evidence wins cases and lack of evidence loses cases,” was the message that Carl Dray, a lawyer with Nabarro, drove home to delegates at the SHP Legal Arena today (15 May), during his session on surviving personal-injuries claims.

Carl set the scene for practitioners by describing the differences between civil law and criminal law. The former involves the balance of probabilities and, as such, the standard of proof in civil cases is much lower.
In criminal cases, witnesses can be compelled to give evidence, whereas civil cases involve more persuasion and depend on the good will of employees.

Outlining the first of the seven habits to adopt in order to successfully defend personal-injuries claims, Carl stressed the need to be able to produce solid witnesses who can refute the evidence of the claimant. Practitioners should identify at the outset who the witnesses are, what their job role is or was at the time of the incident, and their work relationship to the claimant.

His second tip was to ensure that you keep accurate records, as the lack of documentation will not get an adequate defence off the ground. He explained the need to carry out a thorough investigation in the aftermath of an incident, and collate the necessary training records, method statements and risk assessments, etc. He warned, however, that the investigation must be kept purely factual, as in civil claims, such documents can be made disclosable to the claimant and their solicitor.

Keeping on the thread of investigation, Carl emphasised the need to follow through with any recommendations made as part of an investigation and, if you don’t implement them, to say why. He also warned that there can also be pitfalls in relying on video surveillance as evidence of spurious claims. Under the Regulation of Investigatory Powers Act 2000, for example, public-sector clients are required to negotiate a number of hoops to be able to carry out such surveillance.
Good retention of records was Carl’s fourth tip for practitioners. He reminded delegates that claimants generally have three years to bring a claim under the limitation period, so practitioners should check to see if their policies on retaining documents marry up with this period, while insurers may also have certain criteria for record retention.

He underlined that, particularly in the case of asbestos and industrial disease claims, it is important to be able to track down the relevant employers’ liability insurer, so he advised practitioners to make a list of all EL or PL insurers, going back as far as they can. E-documents are generally fine, provided practitioners keep a separate document to prove the methodology to produce the forms is in line with best practice, added Carl.

The fifth custom of successful defendants is that they take action. They issue warnings to employees who, for example, might not be wearing their hearing protection, and record those warnings. Similarly, they are not afraid to discipline employees according to their company’s policy should they contravene safety practices, explained Carl.

Cooperation with your defendant lawyer and insurer is another important way to avoid paying out heavy claims. Carl urged companies to ask questions and challenge their defendant lawyers, as practitioners are the experts of how their business is run.

The final tip was that practitioners should try to anticipate trends. Areas to look out for include nanotechnology, which has been touted as the “new asbestos”, musculoskeletal disorders and cancers, where some people are trying to link lung disease, for example, not only to smoking but to certain occupations as well.


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