The Risks of Agriculture, and Risks of the Claim - John Green, Taylor&Emmet LLP

24/07/15. The internet is littered with disturbing videos of people being seriously injured at work, and it is a sad and worrying fact that such injuries are still prominent in the agricultural sector. You only need type ‘farm accidents’ into YouTube to find videos entitled ‘potato harvester crushes worker’s leg’ and ‘funny tractor crashes’. As Personal injury lawyers, it is hard to see funny side of such incidents, knowing the devastating impact they can have on individuals and their loved ones.

The Health & Safety Executive (HSE) says that the Agriculture, Forestry and Fishing industry is the riskiest sector in terms of fatal injuries. One in a hundred workers (employees and the self-employed) work in agriculture, but the industry accounts for one in five fatal injuries. Fortunately, fatal injuries have fallen significantly since the 1970’s but in the last ten years, almost one person a week has been killed as a direct result of agricultural work. Scores of others have been seriously injured or made ill by their work.

So, why is the potential for injury in agricultural work so significant and what challenges do such injuries pose for PI lawyers?

Agricultural workers regularly come in to contact with large machinery, hazardous chemicals (such as pesticides), fragile farm buildings and confined spaces such as silos, slurry pits and fuel storage tanks. They are often required to move heavy and cumbersome items such as hay bales and animal feed without correct lifting training or mechanical equipment, putting workers at risk of back injuries.

Falls from height are one of the highest causes of deaths and major injuries in agriculture. Work on farm roofs, under time constraints and in unsuitable weather conditions often leads to avoidable injury and death.

Throw the unpredictability of livestock into the mix and it is easy to see why agricultural industries carry so much risk.

The legal process of running a farm accident claim is no different to any other Employers’ liability claim and the usual protocols apply. That said, in my experience, certain factors need to be considered carefully when assessing the risks of the claim (for Conditional Fee Agreements) and in seeking to establish liability:

1. Does the potential Defendant have Insurance/ could they satisfy a Judgement?

Whilst all Employers are legally obliged to carry EL insurance, experience tells me that this is not always the case. Typically, it is the employers with less regard for the safety of their employees who are more likely to ignore their insurance obligations.

Even without insurance, Defendants may have assets in the form of land, buildings or machinery which are capable of being enforced against and sold to pay the Claimant’s compensation and legal fees. If a Defendant does not respond to a letter of claim or Claim Notification Form and it is unclear whether they carry insurance, a search at the Land Registry or against the Charges Register could prove invaluable.

2. How motivated is the client?

It is hard enough to win on liability, even with a helpful and engaged client. Some clients, particularly in lower value cases, can sometimes seem motivated in the first meeting but then become increasingly difficult to contact or work with as the months and years go by. I have found that honest and realistic advice early in the first contact with the client, highlighting the fact that the claim could take between one to three years to conclude, is instructive in gauging the likelihood of their continued co-operation.

We have all dealt with decent cases that have to be dropped after incurring significant fees all because the client simply disappeared or decided they no longer wanted to continue. A good feel for whether this could happen comes with experience but listening carefully, and asking the right questions of the client, is the key to minimising this risk.

3. Evidence

There are some clients who take videos, photos and measurements, and give you names and telephone numbers of witnesses at the first meeting. Sadly those clients are rare and, as in all cases, contemporaneous evidence is the key to success. From the first contact with the client, it is essential to find out what evidence they have, and to encourage them to obtain more. Taking a trip to the site of the accident is the gold standard, but not always possible, so detailed plans (drawn by the clients, perhaps drawn with access to satellite photos, easily accessible nowadays) and photos and videos can be of great help.

An independent witness, whose statement is disclosed early on, can often make the difference between the success or otherwise of a farm accident claim. Whilst it is true that an injured person’s colleagues may be reluctant to give statements, that doesn’t mean that a friendly, off the record, chat with a witness early on is not useful. For example, there is nothing to stop you letting the opponents know (in a manner that does not betray the witnesses’ anonymity) that you have discovered something that may encourage them to settle early, rather than drag a case out.

I have found that an ‘off the record’ witness is not necessarily so forever. They may move to a different job during the life of the claim, and their reluctance to give evidence may diminish if this is the case. Encouraging your client to keep in touch with old colleagues, as well as doing your own part by being friendly and kind to those witnesses early on can pay dividends.

My most recent experience of dealing with an agricultural injury was in acting for a young man employed at a pig farm in Leicestershire. He was seriously injured in two of three separate incidents in a six month period. Each incident was entirely avoidable, and all were as a result of shoddy practice. The attitude of his Employer seemed to be that there was no duty for them to take any steps to keep their Employees safe (save for what amounted to a form filling exercise, dressed up as a risk assessment). My client was put under significant pressure not to claim compensation. Even after liability was admitted by the farm owner’s insurance company he was dismissed for being ‘unlucky’.

Anecdotal evidence from fellow solicitors suggests to me that this attitude by Employers within the farming industry is not at all unusual.

With improvements in technology, increased awareness and a society with a greater respect for human life, the situation has improved over the years. However, compared to other industries, there is still a long way to go.

John Green
Solicitor in Personal injury at Taylor&Emmet LLP

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Buswell v Symes & Anor - John Foy QC & Laura Hibberd (pupil), 9 Gough Square Chambers

22/07/15. The recent case of Buswell v Symes & Anor [2015] EWHC 1379 (QB) raised a number of issues associated with motorcycle claims on country roads. Primary liability was decided on the basis of the alternative exits from a field available to the Defendant tractor driver and whether he was negligent in the exit he selected. The court also considered the issue of contributory negligence. Historically, this has proved a difficult type of case for claimants to succeed in, as cases referred to later in this article demonstrate. In addition, there was an argument regarding issue based costs where contributory negligence is established.

Factual Background

This claim arose following a collision on the 24th July 2011 on the B3399 Newport Road. The Claimant was riding his motorcycle eastward on this road when he collided with the First Defendant who was driving a tractor with a trailer. The B3399 is a single carriageway country road with a speed limit of 60mph. Just before the collision site there is a hill with no visibility over its brow; at the bottom of that hill is the exit from a field on the Claimant left from which the Mr Symes was emerging. This exit was not a formal side road or track, but rather a gap in the hedge from the fields behind. The court was concerned with...

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Guidance as to Litigants-in-Person, a Sign of the Times? - Thomas Crockett, 1 Chancery Lane

20/07/15. The Bar Council, Law Society and Chartered Institute of Legal Executives have produced some joint guidance for lawyers in how to conduct themselves towards a litigant-in-person. The Guide (available at http://bit.ly/1IkTPig) reminds practitioners of their professional obligations and that the growing rise in unrepresented parties should be regarded as a sign of the times, rather than a sign of there simply being more vexatious litigation. It recognised that the increase in litigants-in-person may lead to an increased burden of work upon a represented party, ranging from the practical production of bundles, to the degree of procedural assistance such a party ought to offer.

The Guidance suggests (amongst other key points):

• You should take care to communicate clearly and to avoid any technical language or legal jargon, or to explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language.

• You should take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP's behaviour…

• If you speak to a LiP outside court it is generally wise to do so in the presence of a colleague, if possible. It would be wise in any event to make a note as soon as practicable of any material explanation or assistance which you have given to a LiP.

• If you are negotiating a settlement it would be more appropriate to say ‘are you prepared to agree to…’ rather than to say ‘the courts in this situation would never agree to x, so I suggest that you agree to….’. The latter approach might be seen as unfair to the LiP, even if legally accurate.

• Where a LiP is a defendant to proceedings and no other pre-action protocol applies, the Civil Procedure Rules (CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention to paragraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction. You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and may give rise to a liability for costs.

• Where a specialist protocol applies and more detailed pre-action procedures are required, a LiP will ultimately be subject to the same obligations as a represented party. You should consider sending a copy of or a web-link to the relevant protocol to a LiP when first contacting them about a claim.

• You should communicate in a manner of which the court would approve, which includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable. This does not mean that you have to tolerate unacceptable behaviour from a LiP, nor does it mean that a LiP has a right to expect you to respond immediately to their calls or correspondence.

• It will be important to explain to your client why you are giving assistance to the opposing party, if this is not made clear in court by the judge. You should emphasise that you have a professional duty to the court and that in the interests of fairness the court may require you to provide procedural assistance to a LiP.

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