When compliance is not enough - How to defend claims incurred in the workplace was the subject of a lively and informative Airmic Academy.

Compliance without evidence is like a balcony without a guardrail – an accident waiting to happen. No risk manager worth their salt wants to fall over the edge, so it is no surprise that RSA’s workshop on claims defensibility enjoyed unprecedented interest – indeed, the event was fully booked.

RSA’s Mike Tansey led the discussion on a proactive risk-led approach to compliance, looking at pre-empting events and having processes in place to react. This approach acknowledges the importance of learning from the past to successfully manage workplace risks, and delegates benefited from the wide-ranging experiences of RSA’s Global Consulting and Loss Adjusting Services experts, who demonstrated the best ways to identify gaps in procedures and how to deal with incidents flowing from them. These techniques reduce the likelihood of an issue arising and mean the business is better prepared to respond when one does, and ultimately, making the business compliant.

However, in this increasingly regulated and litigious environment, compliance alone is no longer enough - it is the burden of proof which weighs heavy. William Mercer from the RSA Loss Adjusting Services Team delivered an interactive session outlining the steps risk managers need to follow to successfully defend against avoidable claims.

Ultimately, preventing incidents is vital – no one wants an employee or a customer to be injured – and many losses can be avoided by focussing on the basics of loss prevention, risk assessment and incident investigation. When losses do occur however, it is this ability to defend a claim successfully that is crucial for ensuring that only incidents where you are liable are settled, that they are dealt with quickly to minimise cost, and ultimately lead to saving your business money by not paying out excesses or increased premiums. The onset of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has only reinforced this.

The steps for risk managers to successfully defend against claims are threefold - to have a process in place to identify, minimise or reduce risk, to follow this process, and to be able to prove that you have done so. The existence and following of the process are key to making a business compliant, but it is the third element which allows a business to use this compliance to repudiate claims for which they are not liable. The workshop focussed on this ever-more critical part of risk management, exploring the importance of timely reporting, clear establishment of facts, and comprehensive documentation.

The final session of the academy, led by Mark Wilson, included an in-depth review of recent case law judgments, from manual handling to display screen equipment claims. Delegates were treated to analysis of apparently similar cases with ultimately very difficult outcomes, emphasising the importance of detail and documentation to successfully defend.

RSA have been working in partnership with risk managers for decades to ensure that the right procedures are in place to prevent avoidable losses. Throughout the workshop, the insurer’s experts shared their knowledge with delegates, and demonstrated how doing the simple things right can transform the business. It’s all about reducing the possibility of an issue arising, while being geared up to deal with one should it occur. The audience left feeling reassured around the things they do well, and with a number of interesting new ideas to ensure that the true benefits of getting the basics right are realised. Through these techniques, a risk manager has a platform on which to build. A platform with a guardrail.

For more information on claims defensibility, contact William Mercer (william.mercer@uk.rsagroup.com)

Case Study

One case discussed was Dawkins v Carnival plc t/a P & O Cruises (2011), where the claimant slipped on some liquid, falling and sustaining soft tissues injuries to both knees and her wrists. Lord Justice Pill stated that the claim would fail if the spillage and the accident happened in a short space of time such that “remedial action could not reasonably be taken during the gap between them.”

The claimant’s case was based on precedent that “it was not enough to show that there was a reasonable system; the respondents had to show that it was properly implemented at the time.” The defendants were unable to show this because they “could not establish who it was” on duty, despite claiming a large number of staff in the area who were involved very soon after the accident.

Lord Justice Pill concluded:

·         “There was evidence of the existence of a safety system, including inspection and observation.”

·         “There was no evidence from those with the duty to implement the system at or around the time of the accident.”

·         “In the absence of evidence to the contrary, I can only conclude that on a balance of probabilities, the water had been there for longer.”

The claim succeeded.