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liabilityMatters Issue 7 | February 2020 How do you determine liability when the cause of an accident is unknown? By Marcus Hanson – page 3 Whiplash reform update – Whiplash portal registration opens By Andrea Keyworth – page 4 Navigating the complexities of a product recall By Andrew Robinson – page 5 www.sedgwick.com/uk www.sedgwick.com/uk
liabilityMatters
Welcome
Welcome to liabilityMatters, the publication that looks at key case law and
discusses the trends we’re seeing in the liability claims we’re handling, and in
the wider claims marketplace.
In this issue we lead with an article written by Andrew Robinson our
Global Practice Leader for Product Liability & Recall claims. He looks at the
challenges for white goods manufacturers faced with mass recall events,
and how with the increasing popularity of ‘smart’ goods these recalls could
become more common.
We also include an article on how the court will analyse fault in a personal
injury claim where the victim has no recollection of how the accident
happened. There are important lessons in here too about risk assessments
and the difficulties a prudent defendant has when they are amended post-
accident.
Finally, we look at where we are on the whiplash reforms and the ‘Official
Injury Claim’ portal. Whilst open for registration, some commentators believe
the go-live date of 6 April 2020 for new claims is a challenge and there may
yet be some slippage in the timetable.
We hope you enjoy this issue and, as ever, if there are subjects you’d like to
see covered, or if you have any comments regarding the content, we’d be
delighted to hear from you.
Simon Hiscock
Client Director
liabilityMatters – Edition 7 | February 2020 2
liabilityMatters
How do you determine
liability when the cause of
an accident is unknown?
Marcus Hanson Following on from this it then had to be
Complex Liability Adjuster considered whether the safety measures
in place at the time were “reasonably
T +44 7880 780463 practicable”. In this case it would not have
E marcus.hanson@uk.sedgwick.com been an unreasonable measure by the
defendant to direct its employees to ensure
that the tail gate was up whilst they were
The case of Lee Walsh v CP Hart & Sons Ltd had been provided with sufficient training working in the back of the lorry (the tail
was heard in the Court of Appeal on and was aware of the risks in carrying out lift was down when the claimant had his
13 January 2020. The judgment considers the the work he was undertaking. The defendant accident). Taking this into account the
liability issues in the unusual situation where had also carried out risk assessments in accident could have been avoided and the
a claimant does not know how an accident relation to the task. The claimant was High Court considered that there had a
happened. unable to identify any steps that the breach of duty by the defendant.
defendant should have adopted in order The appeal succeeded and the level of
In this case, the claimant was delivering to minimise or eliminate the risk, or that
bathroom equipment to a site in London with the risk assessments were unsatisfactory. compensation was reduced by 50% because
a colleague who was driving. The driver and the claimant’s actions contributed towards
Additionally, the claimant had not provided the cause of the accident and the Judge
claimant got into the rear of the lorry and evidence to explain how any measures
positioned a pallet onto the tail lift by using decided that there should be some deduction
would have reduced the risk. The claim was to reflect his contributory negligence.
a pallet pump truck. The pallet was lowered dismissed, and the claimant appealed to the
to the ground and taken onto the site by the High Court.
driver. The claimant remained inside the lorry
near the rear door. There was then a loud At appeal the High Court Judge considered Comment
bang and the claimant was found lying on the relevant regulations which had been
The adequacy of risk assessments
the ground having fallen out of the back of pleaded by the claimant in support of his
claim. These included The Work at Height remains crucial in circumstances where
the lorry. He hit his head on the ground and an employer is required to demonstrate
suffered a serious head injury and had no Regulations 2005, which provided under
section 6(3) that: where work is carried out that they have considered the risks to
recollection of how the accident happened. which their employees may be exposed
There were no witnesses to the incident, and at height the employer shall take suitable in the course of their duties.
it was not caught on CCTV. and sufficient measures to prevent, so far as
reasonably practicable, any person falling a
In order to determine what had likely This case reinforces the fact that all
distance liable to cause personal injury; and
happened, and how the accident was caused, aspects of a work-related task must
under section 6(5) that if the risk of falling
the County Court Judge heard evidence about cannot be eliminated then the employer be fully assessed, particularly where
the system of work, the work taking place any injury is likely to be serious. It
shall so far as reasonably practicable provide
prior to the accident as well as evidence from sufficient work equipment to minimise the also demonstrates that post-incident
people who were in the vicinity but had not distance and consequences of a fall. alterations to risk assessments are taken
actually witnessed the accident. He decided into consideration when considering
from the evidence available that the claimant The High Court Judge reviewed the evidence the adequacy of pre-accident risk
either stepped back from inside the lorry or available at the original trial. Upon his review assessments.
otherwise lost his footing and fell out of the of the pre-accident risk assessment, he
And finally, where a claimant does not
back of the lorry and onto the ground, striking deemed it inadequate as it did not identify
the risk of falling from the lorry bed whereas know how or in what circumstances he
his head whilst the tail lift was in the lowered
position. a proper assessment of the risk should have or she suffered injury, it is clear that the
identified it as high (a post-accident risk court will weigh up the facts and draw its
Based on this, the County Court Judge assessment had identified this as a high risk own conclusions based on the balance of
decided that the defendant was not in breach given the potential severity of the injuries to probabilities.
of its duty of care because the claimant had the claimant).
liabilityMatters – Edition 7 | February 2020 3
liabilityMatters
Whiplash reform update –
whiplash portal
registration opens
Andrea Keyworth
Audit Manager
T +44 7584 468384
E andrea.keyworth@uk.sedgwick.com
As discussed in previous editions of It’s recently been announced that
liabilityMatters, one of the key areas portal registration is open for
of reform considered under The representatives and compensators
Civil Liability Act 2018 was low value requiring access, this is to help
personal injury claims following road organisations get ready for the launch
traffic accidents. These became known of the claims portal service which is set
as the whiplash reforms. to formally go live on 6 April 2020.
The Ministry of Justice (MOJ) stated This portal will operate separately
that these reforms would “reduce from the existing Claims Portal for fast
insurance costs for ordinary motorists track personal injury claims and will
by tackling the continuing high number be available to individuals who bring
and cost of whiplash claims”. The MOJ their own road traffic accident personal
has appointed the Motor Insurers’ injury claim and to organisations who
Bureau to manage delivery of the new bring a claim on an individual’s behalf.
service for injury claims falling within Legal fees will not be recoverable from
the new small claims track limit which the compensating insurer if an injured
is £5,000. individual hires a legal representative
Comment
to make a personal injury claim below Whilst this is a very positive step,
A key part of the service is a new £5,000. it remains to be seen whether the
claims portal called ‘Official Injury implementation date of 6 April 2020
Claim’. The purpose of the portal is to All motor accidents on or after for go-live of the new claims service
make claims simple and quick without 6 April 2020, where there is a claim for will be achieved. Several key insurers
the need for legal representation. It personal injury valued at under £5,000, involved in the testing have indicated
strikes the balance of providing access will start in the new portal service. that there are practical issues which
to justice for victims but mitigating need resolving first. The date could
the cost of whiplash claims. Medical professionals will confirm via well be pushed backed to later in
Medco whether they opt in or out of 2020 – we’ll keep you informed of
reporting on unrepresented claimants. any timetable slippage.
liabilityMatters – Edition 7 | February 2020 4
liabilityMatters
Navigating the
complexities of a
product recall
Andrew Robinson
Global SPG Leader (Product Liability & Recall)
T +44 7880 780701
E andrew.robinson@uk.sedgwick.com
White goods manufacturer Whirlpool Manufacturers have no intention to customers fill in their registration card
has found itself in hot water following supply products that are unsafe, and for the product once purchased. This is
a product recall that has affected over most, if not all, have robust quality compounded by the fact that registration
500,000 UK households. Following a control measures in place to ensure they details may be out of date, and while
spate of fires, the company has been are compliant with industry standards. this recall has been well publicised,
forced to take corrective measures Manufacturers often assemble appliances there is always the risk that a significant
and offer customers a full replacement from a multitude of components percentage of the public will still not
or repair of faulty washing machine provided by approved suppliers. But know about it.
models. Unfortunately for Whirlpool, it despite their best endeavours, they can
A recall event of this scale can’t happen
comes on the back of last year’s product still fall foul if a component with a latent
overnight, and while customers must
recall for approximately 800,000 issue is installed.
be protected from existing safety
tumble dryers sold in the UK.
Manufacturers also have a duty of care risks caused by faulty appliances,
The situation has fuelled anger with to take corrective action and remove the recall events must be implemented in
both the public, MPs and consumer risk from the marketplace. Whirlpool’s a way that guarantees that the same
champions. The Business, Energy and first priority is ensuring the safety of its appliances will not cause safety risks in
Industrial Strategy (BEIS) Committee customers; in this case customers have the future.
stated in no uncertain terms that the been told either not to use the appliance
With ‘smart’ appliances coming onto the
company’s response was ‘too slow’. Now or to use it under specific parameters,
market, there is a concern going forward
consumer champions are calling for the namely, not to perform wash cycles
that the more hi-tech the machines
company to offer full refunds as well with a temperature above 20 degrees
become the higher the probability of
as a repair or replacement service for Celsius. However, the next major hurdle
new and emerging risks. This is going
customers with faulty washing machines. is locating the affected appliances for
to be the next challenge in the future
replacement or repair. With a recall event
Customers are angered to be without an of white goods and one for insurers,
of this scale, this is a logistical nightmare.
integral household appliance, and while brokers and loss adjusters alike. The
the frustration is justified, it could be Only between 10-15% of goods are physical risks associated with product
argued that white goods manufacturers physically captured in a recall event. liability could be superseded by a new
are unfairly maligned in these scenarios. This is because only a portion of cyber liability, which is as yet unknown.
liabilityMatters – Edition 7 | February 2020 5
liabilityMatters
About us Upcoming industry events with us:
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happens. • 8-10 June – Airmic Conference
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process, we help mitigate risk and claims spend, • 21-23 June – ALARM Conference
protecting our clients’ brands, reputations and
commercial relationships.
We apply market leading technology to improve
the customer experience, settle claims faster and
identify fraud. Our digital thinking never stops,
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claims more transparent and easier for everyone.
Contact us
Simon Hiscock
Client Director, Liability Claims Services
T +44 7880 780505
E simon.hiscock@uk.sedgwick.com
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Head of UK Markets
T +44 7703 203768
E mark.gilbert@uk.sedgwick.com
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