# Employers Liability + Claim



## maxol (1 Apr 2010)

Hi just looking for some advice here

small not for profit agency.  Admin oversight (maternity leave) had allowed our insurance cover to lapse...nobody knew.  one day a small accident occurs to a disgruntled member of staff. I ring the insurance company to be told of the lapsed policy. I panic but am assured that because we have held apolicy for 9 years it is no big deal and the premium will just be backdated. ..RELIEF!

henceforth..i receive formal notice of claim etc, send all into insurer only to get a letter stating that cover was only in effect from a few hours after the accident and as such they will not be handling the claim. 

I called them and explained previous correspondence but they say they have no note of this and it would be most unusual and while they will discuss the matter and revert it does not look good for us.

What can we do? immediately I can see it as a possible sacking offense for the poor admin who innocently forgot whilst she was on maternity leave (that was not covered for her) and may very well be the death knell for an organisation that relies on govt funding (much reduced recently) and struggles to try help in society, thus endagering the jobs of over 35 people.  

Any advice.


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## Towger (1 Apr 2010)

I can see poor Admin having good compo claim if sacked on those grounds. At the end of the day it is fault lies at management.


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## Molly (1 Apr 2010)

I





> can see it as a possible sacking offense for the poor admin who innocently forgot whilst she was on maternity leave


 
How can she be responsible if she was not in the office at the time ? Responsibility lies with management for not ensuring some one else took on her responsibilities whilst she was on maternity leave.


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## Paddy199 (1 Apr 2010)

Is this a windup email? How can someone, as Molly says, be responsible for something that happened when she was on maternity leave?


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## maxol (1 Apr 2010)

Sorry, I should clarify that the admin was not the problem and I didn't literally mean sacking offence rather a disappointment as she had agree to continue to oversee the work whilst on extended leave.

That's not real issue, concern is the claim and possibility of no cover. Any help or advice on this??


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## Complainer (1 Apr 2010)

Are you sure the employer is liable for the claim? Was the organisation negligent in some way in not preventing the accident?


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## maxol (1 Apr 2010)

Actually to my mind there was no negligence on our part but plenty on side of employee. However I just don't know what move should be if insurance are saying we're not covered.


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## hippy1975 (1 Apr 2010)

Maxol, when the insurance co. said initially that the premium would be backdated, was it and did you pay for the lapsed period? If so then maybe that would back up the conversation you had with them, but I would definitely recommend talking to a solicitor about the whole thing, both from the insurance point of view and whether the claimant would stand a chance in any case,


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## Complainer (1 Apr 2010)

maxol said:


> Actually to my mind there was no negligence on our part but plenty on side of employee.


If this is true, then the insurance issue is moot.


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## maxol (2 Apr 2010)

You think? But how do I go about proving that without insurers to investigate etc??


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## MichaelBurke (2 Apr 2010)

Is it a company or a broker you were talking to, if it's a company then I expect the conversation was recorded, if so then all you need to do is ask for a record of the call (presuming you can remember when). Did they issue you a policy after the policy was reinstated? Then the policy still is a valid contract and the period of cover will tell you if you are covered.

But definitely talk to a solicitor before you go any further.


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## Emptybox (6 Apr 2010)

You may consider engaging the services of a claims consultant.
Look in goldengapes.ie for "claims consultants"

Even if you are not insured, you still can deal with this yourselves. Obviously, the normal circumstances would mean you just pick up the phone to your insurers and let them handle it.

However, in this case, you may not be insured. I would suggest using a claims consultant (these are the guys the insurance companies and solicitors use to investigate claims validity).

If you already have a company solicitor, ask them for their advice. They may suggest a claims consultant they have worked with.

Best of luck with it! I'm a safety manager, the co. I work for is currently shutting down, been busy with solicitors, claims consultants, engineers and insurance people recently!

EB.


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## maxol (8 Apr 2010)

*thank you*

Oh thank you for that. There is a least some light in the tunnel.  

If it was to be awarded against us, how would the courts deal with a govt funded project that hs no funding except salary costs.


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## Complainer (8 Apr 2010)

maxol said:


> But how do I go about proving that without insurers to investigate etc??


You don't have to prove anything. The employee has to prove that you were negligent.


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## Emptybox (8 Apr 2010)

Complainer said:


> You don't have to prove anything. The employee has to prove that you were negligent.


 
In theory, yes. The horrible practicality is that is not the case for small/medium claims (up to approximately €30K).

Ficticious example:
Employee/member of the public trips in a shop. Sprains ankle. Puts in a claim for personal injury.

Shop owner cannot find anything that the person fell over, floor is normal type, good condition, lighting good, etc. Certainly no way that a court of law would find the shop owner negligent.

However, the cost of defending the case in a court of law could easily be multiples of thousands. Solicitors fees, engineer fees, doctor's reports, consultant's reports, time spent dealing with the claim. 

The "injured" person's solicitor may employ the tactic of "sending in an engineer" to look at the issue. This adds to the risk for the defendant when going to court - paying the "injured" persons costs is now greater.

Hence, an insurance company (bear in mind I am currently dealing with over a dozen personal injury cases for the company I work for) will often find it cheaper to "pay out" on the claim, even if it is dodgy. It is just palin cheaper for them to do so - and you cannot fault the logic. Unfair? Certainly. However, to do it "right" ultimately ends up in higher premiums.

Your insurance excess will also affect the way it is handled. An insurance company is much less inclined to fight a case where the insured person will likely have to pay all of the award out of pocket anyway. (little to no risk for the insurance company)

There are really only two reasons a personal injury case is challenged:
a) outright certain failure in court, including a high likelihoood the judge have the "injured" person's side pay the defendants costs. These cases are relatively rare (although to my delight I have a "customer" who is currently limping on his left leg - he injured his right leg allegedly!)
b)cases where the expected costs are going to be high and a court case may "pay off" some way in reducing the payout. These tend to be the more serious injuries with permanent and long term injuries.

Everything else will generally be settled, either with a bit of "horse trading" on the steps of the court, or else just let run through the PIAB system.

I know in your case there may not be an insurance company involved, but your solicitor/claims consultant will be able to advise you of teh pros & cons of any route you take.

As regards ability to pay being taken into consideration, it won't affect it in a court situation - they'll just assess what the injury is "worth".
However, should the "injured" person's solicitor come to relaise there is no money in the "pot", they may rethink taking on the case. No point in spending money to "win" a case, if there is no money to pay the bills at the end of it.

EB


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## maxol (13 Apr 2010)

*Piab*

Can anyone tell me the difference of going through the PIAB as opposed to the regular route?  We have had notification from the PIAB re the claim.

Its so frustrating to me as the policy documents state that the period of cover is x date to y date.  The accident happened on X date but they are saying the time that cover was requested on X date was too late. Even though the policy documents do not state specific times.


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## Emptybox (13 Apr 2010)

maxol said:


> Can anyone tell me the difference of going through the PIAB as opposed to the regular route? We have had notification from the PIAB re the claim.


 
The basic process for PIAB is this (from your point of view, i.e. the "defendant")
- The person who claims to have suffered a personal injury tells PIAB of this and gives them the relevant details
- PIAB then contact you to let you know, and basically ask if you agree that you caused these injuries (technically, PIAB is a no-fault judgement, but for the purposes of this explanation, assume you are admitting liability)
- If you agree that you are liable, PIAB then look at the case and see if they can determine what compensation should be paid. The bulk of this will be for the injury (you can get guideline amounts from the "Book of Quantum" - google will help). They may also add pain & suffering, lost wages, medical expenses etc. on top of this. You also then pay the PIAB fee of €1050 (this covers the PIAB expenses involved, medical reviews, etc.)
- If you disagree that you are liable, then inform the PIAB. They then "release" the case so that the person who is allegedly injured can go through the court system to seek compensation.
- PIAB may decide that they cannot assess the level of compensation required, and release it for court anyway, should you decide to go the PIAB route.

If you agree to go the PIAB route, you can reject the PIAB award, and choose to go the court route instead. The claimant can also reject the PIAB award if they think they can get more in court (common enough occurance, as the "Book of Quantum" is a few years old at this stage)

So your options are:
(a) Agree to PIAB, bite the bullet, and you will definately be making a payout, plus costs (PIAB fees etc.)
(b) Contest the case. Expect a solicitors letter as soon as you go this route though.

Either way, you have 90 days to decide, so don't rush into anything. Have you got advise yet, either Claims Consultant or Solicitor? They should be able to give you an idea what the expected PIAB award for the injury claimed would be, and that should help you make up your mind.

Regards,
EB.


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## Complainer (13 Apr 2010)

maxol said:


> Its so frustrating to me as the policy documents state that the period of cover is x date to y date.  The accident happened on X date but they are saying the time that cover was requested on X date was too late. Even though the policy documents do not state specific times.


Do you really expect any different? If they were to accept your claim under these circumstances, they would be encouraging everyone NOT to take out insurance UNTIL you have a claim, which would kind-of defeat the purpose of insurance.


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## maxol (13 Apr 2010)

*frustration*

I take the point about it being after the fact but my argument is that we have held the same policy with the same company for 10 years, this one year a mistake happens we get screwed. Freakishly unlucky i know but there you go. However, there is no leeway for such a long standing customer?

Thankyou for the PIAB explantory post...most helpful.


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## Rico (19 Apr 2010)

If the company is reasonable in the circumstances they should cover you. I would concentrate on the policy isssue date. If it was reinstated on date X and the accident happened on date X then it should be covered, if no time is specified. The day starts at 00.01, if the accident happed after that time it should be covered, unless there was other correspondence stating a time. If you have a policy document showing the dates that is your contract with the Insurer, hard for them to get out of the claim. Seek legal advice also.


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## peteb (19 Apr 2010)

I would find it highly unusual that a company that lapsed your policy decided to reinstate it to cover a claim! It would be more reasonable to assume that they would reinstate cover excluding the claim or arrange a new policy from the time you rang them!


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