WITHOUT overthinking, one can just imagine the dangers being presented while working at a factory, garage or construction site. In fact, jobs in which individuals put themselves in harm’s way to take care of their own well-being and that of their families cannot be quantified, as the risks vary with each industry, sector and company.

Because of the risks associated with some jobs, employers need to be protected in the event they fall victim to such incidents. It is therefore incumbent on employers to mitigate risks associated with the specific workplace so that employees can fulfil their responsibilities. This, in legal speak, is known as employers’ duty of care.

In fact, the Government of Jamaica, through the Ministry of Labour and Social Security, has for some time been seeking to institutionalise, through legislation, the duty of care of employers with the Occupational Health and Safety Bill.

Notwithstanding, accidents do occur, and so when they do happen it is important for employers to be properly protected (and by extension their shareholders) should such eventualities result in injury, dismemberment, disability, or even death. In this case then, an employer may seek to ensure proper protection of his/her balance sheet through an employers’ liability insurance policy, which can be purchased as part of an insurance portfolio.

Some common examples of accidents in the workplace include: manual handling of goods and/or equipment type accidents; falls from height; accidents caused by defective work equipment/machinery; slips, trips or falls at work; accidents as a result of insufficient training/supervision; accidents caused by the fault of another employee; building site accidents; and electrical injuries.

In addition, the need for companies to purchase employers’ liability insurance is increasing due to the scope and nature of court awards and claims made on the employer following workplace accidents. Essentially, such an insurance policy may help to indemnify employers against financial losses when legal action arises.

While not all accidents at the workplace fall for consideration under this insurance policy, again, the liability of an employer for negligence in respect of injury suffered by his employee during the course of the employee’s work is two-fold:

1. an employer owes a personal, non-delegable duty of care to each employee; and

2. may be vicariously liable for breach of the duty of care which an employee owes his fellow employees.

Kindly note the use of the word ‘negligence’ in this context, as well as ‘duty of care’. Negligence is a failure to take reasonable care to avoid causing injury or loss to another person.

There are four ways to prove negligence on the part of the employer:

1.When there is a duty in the circumstances to take care (duty of care);

2. When the behaviour or inaction of the employer in the circumstances did not meet the standard of care which a reasonable person would meet in the circumstances (breach of duty);

3.When the worker has suffered injury or loss which a reasonable person in the circumstances could have been expected to foresee (damage)

4. That the damage was caused by the breach of duty (causation).

To counter these complaints or claims, there is established a four-fold division of the employer’s duty.

1. He/she must employ competent staff — properly trained individuals — to perform the job function;

2. The employer must provide the necessary tools, equipment and gear to perform the job;

3. The employer must ensure there is a safe system by which employees work, with effective supervision; and,

4. As far as possible, he/she must create a safe environment under which employees work.

Of course, not all cases end up in court, as in many cases settlement with a claimant may and is often achieved without the need of a court appearance. In some cases, it is the mediation between the parties that brings a settlement suitable to both the employer and /or their insurers and an injured party.

It’s impossible to quantify all types of claims that may fall under employers’ liability, as different risks are apparent in different businesses and trades. In certain circumstances, though, contribution to the injury or damages caused by the claimant may be taken into account in settlement of the claim.

In a serious matter damages may be awarded under the following headings:

General Damages — These may be awarded to employees in relation to pain and suffering, physical loss of amenity, loss of life expectation as a result of the incident.

Special Damages — These may be awarded to the employee and include:

• Loss of wages now or in the future

• Doctors’ bills now and in the future

• Additional transportation costs

• Additional household help

• Pharmacy charges now and in the future

• Loss or damage to clothing or personal effects

Attorney’s fees, as authorised by insurers in defending the matter in court or otherwise, can also be a substantial cost. The defendant may also be required to pay the costs of “expert opinion” for doctors and the like.

Importantly, however, employers’ liability insurance is disbursed only on the basis that the insured — the employer — may be found legally liable for the accident/injury to the employee.

The insurance policy does not cover any moral responsibility that the insured party may feel towards the injured employee.

With certain members of the legal fraternity embracing and promoting the “no win, no fee” strategy along with ambulance chasing, as well as people being more aware of their rights in this area, it would appear that there is an increase of claims being filed against employers, and substantial awards being made.

As a result, selecting insurance coverage for the purpose of employers’ liability should be part of a coordinated liability programme in which necessary limits of liability per accident and, overall, per period of insurance are important factors.

Ian Miller is the chief technical director of Billy Craig Insurance Brokers. He has more than 40 years’ experience in the local and international insurance industry, having worked for British company Eagle Star for 17 years before beginning at Billy Craig in 1992. He is widely recognised as one of the most qualified technicians in the Jamaican insurance industry, being one of the few local holders of FCII accreditation from the Chartered Insurance Institute of London.