No win, No fee If you have suffered injury as a consequence of negligence in an accident with a digger then you may well be eligible for compensation.
Employer Obligations
Under the Health and Safety at Work Act 1974 all employers have a legal obligation to ensure the health and safety of their employees. Even though the building and construction industry accounts for a significant number of personal injury claims each year, second only to road traffic accidents, this does not diminish the obligation employers have towards their employees. It is fair to say that there are dangers across all construction sites but it is untrue to suggest that injuries are “part of the job”.
However, before we take a further look it is worth noting that not all accidents will result in compensation claims. If an employer is able to prove they took all reasonable steps to ensure the safety and well-being of their employees then they may well escape prosecution. Accidents do happen but where there is negligence this is where compensation claims can be pursued.
General Hazards Using Diggers
One of the main criteria when using diggers and excavation equipment is to ensure that pedestrians/vehicles are cordoned off from the areas under excavation and there is a “hazard free” traffic route. The most common excavator hazards include:
- Trapping colleagues/pedestrians while reversing
- Trapping colleagues/pedestrians between the digger and a fixed structure or another vehicle
- Striking colleagues/pedestrians with the bucket element of the digger
There are five main precautions when using diggers and excavation equipment which reduce the dangers of accidents and injury. They include:
- Exclusion – ensuring that the excavation equipment and working area is separated by suitable barriers.
- Clearance – ensuring that the most appropriate machinery with minimal tail swing is used for the project.
- Visibility – there is a need to ensure that drivers of excavation vehicles have as wide a viewing area is possible to avoid accidents and injuries.
- Signallers – many companies will use an additional employee to help direct the digger driver to minimise danger.
- Securing the bucket attachment – we have seen situations where the bucket attachment has fallen off causing significant injury. There are “quick hitches” which are used to secure a bucket to a digger which are commonplace today.
When undertaking excavation activities using a digger employers should also ensure that the appropriate inspection and maintenance actions have been taken including:
- Daily visual checks of equipment
- Daily visual checks of area under excavation
- Ensure that vehicle maintenance is undertaken in line with manufacturers guidelines
- Encourage employers to report defects or safety problems
- Ensure that any safety issues are addressed as soon as possible
- Allow delay or cancellation of the project where there are undue safety risks
There are also many other issues to take into consideration when using digger/excavation equipment but the above lists will give you an idea of what you should expect when working on an excavation project.
Digger Training And Safety
It goes without saying that any company operating heavy excavation equipment like diggers need to ensure that all employees working in various projects are trained to the appropriate level. Companies therefore have a legal obligation to:
- Instigate initial and ongoing training of all personnel
- Provide the relevant safety clothing and equipment
- Ensure that all excavation vehicles are well maintained
- Ensure that all excavation vehicles have the appropriate safety guards
- Allocate employees to projects based on their training and experience
- Carry out risk assessments
- Produce a detailed safety guide
We have seen situations where employees with limited training and experience have been placed on relatively complex projects. If you were involved in a digger accident as a consequence of a lack of training or guidance then you may well be entitled to compensation for any injuries received.
Potential Digger Accident Injuries
There are many potential injuries facing those involved in digger accidents which could include:
- Back injuries
- Head injuries
- Crush injuries
- Fall injuries
- Broken bones
- Lacerations
While we are focusing on digger related injuries for those using the equipment, there are situations where members of the general public are injured as a consequence of negligence.
Proving Negligence In A Digger Accident Claim
Central to any digger accident claim is the ability to prove negligence on behalf of one or more third party. Employees, contractors and individuals could all potentially make a claim for compensation when receiving injuries as a consequence of negligence. It is worth noting, as we touched on above, that while an employer has a legal obligation to ensure the safe well-being of employees, contractors and individuals, so these parties also have an obligation to act in an appropriate manner. This includes following company guidelines, avoiding the misuse of diggers and other excavation vehicles and using the correct safety clothing and protective equipment.
There may also be situations where more than one party is potentially negligent. In these situations it is not the role of the claimant to apportion a share of negligence to each party, they simply have to name the parties and the courts will allocate the appropriate level of liability. It is also worth noting that even if the claimant was partially responsible for their own injuries in a digger accident this does not necessarily mean there was no negligence on behalf of the employer or another third party. In these situations the courts would simply deduct the claimant’s share of negligence from any compensation award.
Gathering Evidence To Support The Claim
It goes without saying that in the event of a digger accident causing injury the relevant medical attention should be sought as soon as possible. This not only ensures that the victim receives the appropriate treatment but details of the accident, circumstances and any injuries will be noted on their medical records. A claimant’s medical records can be used in a court of law when pursuing compensation and as they are provided by an unconnected professional third-party they carry significant sway from a legal standpoint.
In a perfect world it would be sensible to take photographs of the digger and any other equipment involved, the location of the accident and also gather witness statements and contact details from those who saw the digger accident. It will obviously depend upon the severity of injuries received by the claimant as to whether they will be able to gather evidence at the scene or arrange for a colleague or friend to do this. At the earliest opportunity it is also advisable to put together a timeline covering the period before, during and after the accident. This will ensure that the courts have as wide a picture as possible when considering a claim for compensation.
Talking With A Personal Injury Solicitor
Legally there is a three-year window of opportunity during which a victim has the opportunity to lodge a digger accident claim for injury compensation as a result of negligence. This usually starts on the day of the accident although in the event that an illness or injury directly related to the digger accident is diagnosed at a later date, the three-year limit will begin on the day the diagnosis was received. However, it is advisable to pursue a digger accident claim as soon as possible because with the best will in the world memories fade and any confusion regarding evidence about the accident and negligence would weaken even the strongest of cases.
When approaching a personal injury solicitor you should present all of the evidence to hand together with your timeline of events. On occasion the personal injury solicitor may require additional medical examinations to clarify injuries received as a consequence the digger accident. After reviewing your evidence, if the solicitor is confident they can win the claim you would be offered a No Win No Fee arrangement. No Win No Fee ensures that those with limited finances are still able to pursue potentially negligent parties. In exchange for removing the claimant’s liability to cover the legal expenses of their solicitor, they will be paid on a successful outcome, what is known as a “success fee”.
Lodging A Digger Accident Claim
The next action is to physically lodge the digger accident claim for compensation by forwarding the evidence and claim details to a court of law. At this point the defendant will receive further details of the claim and a copy of all evidence. If negligence for the digger accident is fairly straightforward to prove the defendant would likely suggest an out-of-court settlement. While this would ensure that the defendant is able to minimise their legal costs going forward it also ensures that the claimant receives their compensation earlier rather than later. When you bear in mind potential medical expenses as well as loss of earnings while injured, this may also be the preferred option for a claimant.
There may be digger accidents where the defendant refutes allegations of negligence, or there may be more than one party involved, with these claims likely to go before the courts. The judge will make a decision on negligence and potential compensation after reviewing evidence from the claimant and defendant.
Compensation In Digger Accident Claims
There are two main types of compensation available in digger accident claims, these are:
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General Damages
General damages relate to basic financial compensation for injuries received and include (but not limited to):
- Pain and suffering
- Mental trauma
- Injuries that have been life changing
The guidance for general damages is provided by the Judicial College which collates information from past compensation cases, sorting them by type of injury and severity. While these guidance figures are well respected by the courts and insurance companies they have no legal standing. There is also a degree of discretion/variation when it comes to the final general damages figure to allow the courts and insurance companies to reflect the individual nature of each accident and injuries.
The second type of compensation in digger accident claims is:
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Special Damages
The situation with special damages is more straightforward in that it is simply financial recompense for costs incurred as a result of the accident and injuries and any future funding requirements. Special damages will take in issues such as:
- Loss of earnings
- Future loss of earnings
- Medical expenses
- Future medical expenses
- Additional transportation costs
- Adaptions to the home
There is no discretion/variation allowed for special damages which are simple financial calculations.
