Kerry Underwood

PORTALS: EMPLOYERS’ LIABILITY OR PUBLIC LIABILITY?

leave a comment »


All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

What happens if an employee suffers an injury at a work-related social event, or when attending work outside normal working hours, for example to collect pay?

Is that an Employers’ Liability or a Public Liability Portal claim?

Under paragraph 1.1(14) of the Employers’ Liability and Public Liability Portal, which is a single portal, the definition of employers’ liability claim is given as follows:

 

(14) ‘employers’ liability claim’ means a claim by an employee against their employer for damages arising from—

(a) a bodily injury sustained by the employee in the course of employment; or

(b) … [irrelevant]”

 

Under paragraph 1.1(18) a public liability claim is defined as follows:

 

“(18) “public liability claim” –

(a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—

(i) a person other than the claimant’s employer; or

(ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment; but

(b) … [irrelevant]”.

 

Thus the protocol specifically envisages a claim against one’s employer as potentially being a public liability claim, and the key issue is as to whether the accident happened “in the course of employment” or “in the course of the Claimant’s employment”, or otherwise.

It is unfortunate that there are two slightly different definitions, but they amount to the same thing in my view.

The fact that something occurs outside of working hours does not of itself take the matter outside the course of employment.

For example there is considerable employment case law holding that work related social events, such as Christmas parties etc. can be in the course of employment.

On balance, I take the view that attending work by arrangement with one’s employer in order to collect one’s wages for working is indeed acting in the course of employment as it is part of the employment arrangement, that is the receipt of wages in return for the provision of work.

Likewise an accident at a work related social event.

However, a court could find otherwise.

I referred above to the Employers’ Liability and Public Liability Protocol being a single protocol.

There is no concept of there being a separate Employers’ Liability Protocol and a separate Public Liability Protocol, although it would have been easy to do so had the Rules Committee and Parliament wished to do so.

Compare and contrast that with the Road Traffic Accident Portal, which is a separate protocol in a separate portal.

When you initiate the process you are required to select one of the two protocols, that is the RTA Protocol on the one hand or the EL/PL Protocol on the other hand.

Thus an ex EL/PL Portal Claim, and will remain in, the Fixed Recoverable Costs Scheme unless and until the matter is allocated to the Multi-Track.

If the claim settles for between £1,000.00 and £5,000.00 pre-issue, the fixed costs for an Employers’ Liability and Public Liability matter are the same, that is £950.00 plus 17.5% of damages.

If it settles for between £5,000.00 and £10,000.00, then the core fee is the same, that is £1,855.00, but the percentage of damages is different.

For employers’ liability it is 12.5% of damages over £5,000.00 whereas for public liability it is 10% of damages over £5,000.00.

Thus the difference is 2.5% of the damages over £5,000.00, which is £2.50 per £100.00 or £25.00 per £1,0000.00.

In the £10,0001.00 to £25,000.00 bracket the core fee for employers’ liability is £2,500.00 as compared with £2,370.00 for public liability cases.

In each case the percentage fee is 10% of damages over £10,000.00.

There is then a greater difference, both in the core fee and the damages, as the matter progresses through the litigation stages.

A matter that has exited one portal can then be put onto the other portal, but the EL/PL portal is one single portal.

 

Consumer Protection Act claims

Section 2 of the Consumer Protection Act 1987 states:

 

(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.

(2) This subsection applies to—

(a) the producer of the product;

(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;

(c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.

 

Do such claims fall within the PL Portal, that is, is it a breach of a statutory duty?

By virtue of section 2 of the Consumer Protection Act, those listed have a statutory duty not to cause damage which is caused wholly or partly by a defect in a product.

The fact that it refers to three different types of people, seems to me to make no difference.

Thus, a producer of the product is in breach of the duty and so is any person who, by putting his name on the product or using a trademark or other distinguishing mark in relation to the product, has held himself out to be the producer for the product, and so is any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply to another.

Indeed it seems to me that this is far more an incident of breach of statutory duty rather than a straightforward injury.

Without the statute, that is the Consumer Protection Act, arguably those mentioned in section 2(2)(b) and (c) would have no liability.

Thus the section creates a liability on a person who puts his name to the product or imports the product etc., over and above the common law duty on the producer.

How does one plead the matter in a statement of case?

By saying “…is in breach of its duty under section 2 of the Consumer Protection Act…”?

The Portal definition is intended to be inclusive and the exclusion is contained at paragraph 1.1(18)(b) where it says that a public liability claim does not include a claim for damages arising from a disease that the Claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single events.

Had the portal intended to exclude any other type of public liability claim, one would have expected it to do so there.

Paragraph 4.3 of the portal lists another series of exceptions, and this is not one of those exceptions, although if the matter was never potentially on the portal it does not need to be excluded.

Case law on other matters shows that it is the intention, where possible, that claims should be in the portal, rather than outside it and my view is that, on balance, a court is likely to find that this is indeed a portal claim.

A Court may take a different view.

I am grateful to Catherine Hyde of Coodes Solicitors for bringing some of the material in this piece to my attention, and also to Andrew Last of Mooneerams Solicitors.

Advertisements

Written by kerryunderwood

October 20, 2017 at 8:01 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: