Mon | Oct 16, 2017

Insurance Helpline | Do not ‘wait in pain’ - fight and resist

Published:Sunday | January 29, 2017 | 12:00 AMCedric Stephens

Q: I slipped in some water at my work complex and hit my leg last January. As a result, my knee was injured. The doctor prescribed medication and therapy. My employer conducted investigations. I was told that since the accident did not occur inside the building that my employer occupied, they were not liable. Responsibility lay with the owner of the complex. In a meeting with the owner, I was told that the accident was my fault. However, she said that she would need to refer the matter to the board of the complex. The injury has affected my ability to work somewhat, and most times, I'm in pain. I have concluded that I have been getting a runaround. Can you offer some guidance?

- S.F.

Kingston

A: The lead article in last Sunday's newspaper, 'Waiting in pain', was heartbreaking. It told the story of a deaf 82-year-old woman who was "mowed down" by a police car in 2011. She awoke after month of unconsciousness in a hospital bed. Six years later, the Government - the de facto owners and insurers of the car - had not paid her the compensation for her pain and suffering to which she was entitled.

Stories like this one never have happy endings. The article, however, was effective. It shamed the government bureaucrats into finding the money to pay the woman's claim the next day.

Insurance companies are not the only institutions that give claimants the runaround. As your case and that of the senior citizen clearly show, our Government and private property owners do so as well.

Your problem requires a legal solution. Since this column only offers assistance to solve insurance matters, it cannot help. It can, however, explain some of the basic legal issues surrounding: a) the liability of employers have to their employees; and b) the statutory or legal liability that property owners have to members of the public. These details should help you to have a better conversation with an attorney of your choosing.

The Ministry of Labour and Social Security has a department that deals with occupational health and safety, that is, workplace safety. According to its website, the department "seeks to secure the wellness of the mind, spirit and body of workers".

 

OLD LAW

 

The law governing the operation of the department is, surprisingly, called The Factories Act 1943. Since the law is now nearly 75 years old, it does not provide a clear explanation of the current thinking of an employer's legal duties to employees. The Health and Safety Executive of The UK Government is the equivalent of our department that deals with employee health and safety.

HSE says: "It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this. This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace."

I believe that our local courts would, in all likelihood, interpret the legal responsibilities of employers to their employees in this broad way. Local employers generally buy Employers' Liability Insurance to protect themselves in cases where employees allege that there are breaches of that duty. In 2014 employers paid nearly $460 million in premiums, while insurers paid $381 million in claims.

Many local property owners, including the owners of the complex where the business of your employers is located, know absolutely nothing about The Occupier's Liability Act. Please visit the website of The Ministry of Justice to obtain a free copy.

 

IGNORANCE NO EXCUSE

 

As you should know, ignorance of the law is no excuse. This law, which was passed nearly 50 years ago, says under Section 3(1) that a property owner owes "a common duty of care ... to all his visitors". Subsection (2) continues: "The common duty of care is the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

Smart landlords buy public or third party liability coverage to protect themselves in cases like yours.

Based on what you wrote as well as the Occupier's Liability Act, it is very clear that the owner of the complex takes you for a complete idiot! How could the accident be your fault?

If insurance was in place, she would have told you to contact the insurance company. Referring the matter to the board of directors is a smokescreen. The expectation, like the case involving the senior citizen, is that you will forget about it.

I recommend that you retain the services of an attorney. Resist. Do not bow.

- Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: aegis@flowja.com