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Oh No, An Accident Has Occurred - What Do I Do?

This article was written by Colette Hunt

To make the likely subsequent litigation process as smooth as possible, there are certain practical steps which should be taken following an accident on a construction site, irrespective of who is likely to subsequently considered or held responsible for the accident. It is advisable to at least consider the following:-

  1. Preserve the scene or immediate vicinity pending the arrival of any investigating authority, such as an inspector from the Health and Safety Inspectorate.

  2. Complete an Accident Report and record the names and contact details of any witnesses to the accident.

  3. Make an entry in an Accident Book – although employers in Jersey are not legally obliged to keep an accident book, the States of Jersey Health and Safety Inspectorate consider it to be good practice. It is also a way of the company or business, and its Insurers, being able to identify and monitor the most common types of injury sustained.

  4. If it is an employee who has been injured, notify your Employers’ Liability Insurers.

  5. If it is not an employee of your business who is injured, notify your Public Liability Insurers as well as your Employers’ Liability Insurers. Early notification to Insurance brokers or the Insurers will ensure that there is no issue of indemnity for any civil claim which may arise subsequently – late notification, even with good reason, can result in Insurers refusing to indemnify for any claim intimated following an accident.

Make your own discreet enquiries and investigations as to what actually happened. This can be important for two reasons:-

(i) Primarily to ensure that a similar occurrence is avoided and prevent anyone else from being injured;

(ii) If you have previously prepared a Risk Assessment, this should be reviewed in the light of the circumstances of the accident but the original retained. Whilst risk assessments are not compulsory in Jersey, it is considered good practice for these to be completed and reviewed either annually or as regularly as is considered necessary. Following an injury being sustained, it is always a good idea to review a risk assessment. Updating a risk assessment following an accident does not necessarily mean that the original assessment was inadequate.

It is likely that a Health and Safety Inspector will attend and may interview some of your staff. They may subsequently write a letter of advice to the company or business making a recommendation, serve an improvement notice or confirm that they intend to prosecute for a breach of the Health and Safety at Work (Jersey) Law, 1989, or one of the Approved Codes of Practice which have come into force since 1989. You may wish to consider arranging for your own independent legal representative to be present during any interview of your employees by the Health and Safety Inspectorate, in addition to any legal representative who is appointed on behalf of your Insurers.

Pursuant to the Health and Safety at Work (Jersey) Law, 1989, every employer with five or more employees is obliged to have a written Health and Safety Policy and to keep this updated. It is important that this document can be readily located if asked to produce it either by the Health and Safety Inspectorate or your Insurers.

Further, pursuant to the Health and Safety at Work (Jersey) Law, 1989, employers and occupiers owe a duty of care not only to their own employees working on a site but also to others who are authorised to be on the site at the material time – independent contractors, sub-contractors, employees of other businesses and possibly also members of the public.

If it is one of your employees who has been injured, in the first instance, you need to look at their terms and conditions of employment to see whether they are entitled to be paid during subsequent absence from work. Even if they are not contractually entitled to sick pay, it is always at the discretion of an employer to pay the injured employee on full pay, half pay or some other basis.

Other employment issues may arise subsequently on which it is a good idea to seek legal advice on in advance, particularly if the company does not have a designated personnel or human resources officer – for example if it subsequently becomes apparent that the employee will either not be able to resume all their former duties or not be able to return to work at all, a decision will subsequently need to be taken as to when and how to terminate the employment. Obtaining early legal advice on how to approach the potentially controversial issue of terminating a contract of employment may either prevent a potential subsequent claim for unfair dismissal being made at all or being successful.

Accidents will happen – hopefully rarely – but with the right approach and legal advice and representation, their effect can be kept to a minimum.

Colette Hunt is a personal injury specialist and English Solicitor at Crill Canavan. She acts for insurance companies in respect of claims arising out of accidents at work. She can be contacted on 01534 601734.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND NOT BY WAY OF LEGAL ADVICE. PROFESSIONAL LEGAL ADVICE SHOULD BE SOUGHT BEFORE ANY ACTION IS TAKEN.

Crill Canavan Solicitors & Advocates, All Rights Reserved.