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Published On: May 19, 2020 | Blog | 0 comments

Settlement of construction site claim

I recently settled a claim for a client who suffered a traumatic brain injury and loss of hearing in one ear following an accident on a construction site.

My client was a window fitter by occupation running his own business with a partner.  On the day in question he had arrived at the site in order to assess the windows that were required for a house that had been recently built.

This was the first time my client attended the site and the sole purpose was for him to have a look around before commencing work, to fit windows which he had contracted to undertake with the defendant company, at a later date.  The company had the overall management and control of the site and was therefore overseeing all issues including those related to health and safety.  Whilst my client had some communication with the owner of the house, all arrangements were made via the company including his attendance on that eventful day.

My client’s recollection was that he and a colleague arrived at the house early morning and shortly afterwards, about 15 minutes later, the accident occurred.  One minute he was walking along inspecting the window frames whilst his colleague was elsewhere, and his next recall was coming to.  It later transpired that he had fallen through a hole; a void to the stairwell in the floor that had not been visible but had obviously been covered up, albeit not properly.  There were no warnings of its existence whatsoever.

The injuries were such that my client had to be airlifted to a major trauma centre in London.  He suffered a bleed to the brain, loss of hearing and multiple rib fractures.  Fortunately, he made a very good recovery after hospital admission, although unfortunately, as is common with traumatic brain injury, my client has been left with ongoing cognitive issues which effect his memory and concentration and he is easily fatigued.  Sadly, the loss of hearing means that he will need to use a specialised hearing device for the remainder of his life and may also require further surgery.

After a few months, my client returned to work, but struggled as a consequence of which his business suffered. A year later, the business folded, and he had no alternative but to work on a self-employed basis for a similar business.

During the course of our enquiries, while the HSE investigated the accident, we were able to get hold of the owner of the house who provided a very supportive witness statement and CCTV footage. The CCTV images contained sufficient evidence, though no footage of the actual accident existed, to prove breach of health and safety regulations on many levels at the site.  Despite the existence of this footage, including a sequence showing my client arriving in his work van with his company name clearly marked and parking directly behind the company’s director, they denied knowing he was on the site at the time of the accident.

The company also alleged that my client appeared to have removed the glass panels and then somehow managed to fall down a stairwell void despite the presence of a barrier.  Rather surprisingly, notwithstanding the clear evidence, liability remained in dispute and it became necessary to issue court proceedings.

The company was prosecuted by the HAS and pleaded guilty to a charge under regulation 4(1)of the Working at Height Regulations 2005.  The judge found it “hard to comprehend the defendant’s position that there were rails in place at the time” of the accident.  The company was fined a five figure sum which was reduced following the guilty plea.

Following the successful HSE prosecution, the company’s insurers made two offers in settlement of the claim. By this time, we had passed the second anniversary of the accident and even though his medical evidence was incomplete, my client wished to move on with his life.  He had adapted to working and his life generally and decided to accept the time limited offer of a six figure sum.  What was most important to my client was that the company admitted it was at fault and the HSE prosecution had confirmed this.

It is not uncommon for an HSE investigation and prosecution to take as long as it has in this case.  It is such a shame the insurers could not have admitted liability when we had provided them with clear evidence. It would have saved my client the additional stress he suffered as a consequence and avoided the need to issue proceedings.

This client was fortunate that despite his brain injury he has made a reasonable recovery and is able to lead a fairly normal life with some assistance from his family.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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