Personal Liability

At a discussion in a corner of the engine shed the question was raised by a driver as what extent he would be exposed to legal action in the event of an injury to a passenger through some lack of skill or attention on his part eg a rough shunt when buffering up and somebody cricks their neck (the infamous whiplash). Now if it was a serious enough event to get the HSE involved there may or may not be criminal proceedings but the conversation was centred more around the general trend to turn to litigation and the rise of the "no win no fee" law firms. The company obviously carries insurance to deal with these claims but would a lawyer go for the company or the driver? Many years ago I asked a solicitor a similar question who answered that there was nothing to stop anyone suing someone who had caused injury or loss but his professional advice to a client would be to direct the claim at the company as that's where the money was.

Any thoughts on the current situation? Has anyone been pursued by the legals?

 

really the public liability insurance is more the cover for that ,I know for my own dept,a risk assessment and job briefing needs to be given prior to work or youre not doing what the safety laws tell you to do, if youre in charge of volunteers whether paid staff or volunteer yourself youre technically managing them and must do this as a very basic minimum.

 

The employers liability insurance covers the actions of the staff. The Employer has insurance, the employee has nothing. Generally speaking you can't sue both of them for the same event, so its clear which one you would go for.

 

The employer is vicariously liable for the actions of their employees, so public liability (to the public) and employers liability (injury to employees) indemnifies civil actions for injury or damage brought against the railway and/or employee (or volunteer) acting in the course of their employment.

They will also usually pay legal defence costs on behalf of an employee who is charged with a criminal offence if it is connected with a public or employers liability claim, so if a passenger is injured and a H&S prosecution is brought the insurers will usually defend the H&S action BUT...

- they will only do so until the defendant pleads guilty or is convicted, and they will not pay fines or penalties, as it is against public policy to indemnify someone for their criminal actions
- if they settle the injury claim before the criminal trial there is no reason for them to continue to fund the criminal defence
- it only covers employment activities so a volunteer having a day out rather than on duty isn't included

Lots of caveats to the above and this does not constitute advice etc., but you get the gist

Patrick

 

Health & Safety prosecutions are rarely defended as they are not brought unless the evidence is overwhelming, and in sentencing, great weight is given to a guilty plea at the first opportunity -see the recent West Coast case for an example.

I agree that the company is most likely to be the target of a compensation claim, rather than the individual.