Accident and Injured at Work – Employers Liability Claims – Breach of Statutory Duty Claim
Chris Brunt is a Gibraltar personal injury lawyer, a barrister and acting solicitor who will consider all personal injury claims on a No Win No Fee basis. Contact me for a free consultation to see if I can help you win the compensation you are entitled to. Use the contact form here and I will get back to you to discuss your claim.
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What compensation are you entitled to claim if you suffer personal injury or had an accident at work in Gibraltar? Well, if the injury was a result of either your employer’s breach of statutory duty or their negligence, then your employer will be liable. This would mean that you would be entitled to claim a compensation payment in respect of your injury and all the associated losses, including financial losses, past and future. A successful personal injury claim against your employer will usually be settled by their insurance company.
It is important to note that an employer cannot lawfully dismiss you or lawfully subject you to detrimental treatment if you are injured or had an accident at work and bring a claim against them for your injury. See my employment blog
When is your employer liable for your injury?
As indicated above, for a personal injury claim to succeed in Gibraltar the employer has to be in breach of statutory duty, or have been negligent. The easiest route for an injured employee to successfully claim against its employer is to prove that the employer has breached a statutory duty and, importantly, that breach had caused their injury or loss.
What is a Statutory Duty?
A statutory duty is a duty imposed on the employer (or the occupier of premises more on this later) by Gibraltar legislation. In the context of personal injury, the primary purpose is to protect employees from harm and injury.
Management of Health and Safety at Work Regulations 1996.
Gibraltar’s Management of Health and Safety at Work Regulations 1996 at regulation 3(1) states:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.“
You will notice that the employer only has to comply as far as reasonably practicable, and this is often the battleground for dispute when an employer is sued in a personal injury claim, and who will defend any claim by asserting that they are not in breach as they have complied as far as they reasonably could in all the circumstances.
However, the starting position is under Gibraltar law that It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.“
This is the overriding duty, there are countless specific duties imposed on employers which are designed to protect or lessen the risk of injury to employees, which I will discuss in later posts. One example however is Gibraltar’s Manual Handling Operations Regulations 1996 and which states in part:
“Duties of employees“
3.(1) “Each employer shall–
(a) so far as is reasonably practicable, avoid the need for his
employees to undertake any manual handling operations at work
which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his
employees to undertake manual handling operations at work
which involve a risk of their being injured;
carry out the activities in sub-regulation (2)…..”
From the above Regulation, you can see that while the employer is under the general duty to “ensure as far as reasonably practicable the health and safety of his employees” by regulation 3(1) of the Management of Health and Safety Regulations 1996. It is specifically stated or expanded in the Manual Lifting Regulations,(as an example) as to how an employer might achieve or satisfy his owed duty of care to his employees who are required to “lift objects” in the course of their employment.
There are many Regulations, covering many activities or situations throughout the workplace, which are designed to reduce the risk of injury to employees and I will touch on these in detail in later posts.
When is an employer responsible for an employee’s injury?
Simply put, the employer has to be in breach of the statutory duty and fail to ensure (as far as reasonably practicable) the health and safety of the employee. Whether the employer has failed will be a matter of fact for the court to decide. By regulation 23 of the Management of Health and Safety Regulations 1996, a breach of the Regulation confers a right for an employee to bring a civil claim against the employer for his injury and all the losses financial and otherwise that flow from it.
There is some disagreement among Gibraltar’s personal injury lawyers as to whether a breach of other Regulations which impose statutory duties on the employer (for example the Manual Handling Operations Regulations 1996, mentioned above), also confer on an employee a right to bring a claim against the employee for breaching a regulation. This is because other Regulations do not expressly state that right. I do not think that can be correct. This is because, in my submission, a breach of a Regulation that does not expressly confer a right for civil action must also be by definition evidence a breach of regulation 3(1) of the Management of Health and Safety Regulations 1996, the overriding duty, which does.
Causation
But for an employee to successfully bring a claim for personal injury more is required than an employer being in breach of its duty towards its employees. Any breach of duty must have caused the injury. This sounds entirely reasonable. The injury caused must have been caused by the failure of the employer, and but for the breach, the injury would not have occurred.
Negligent employers
Most claims for personal injury in employer liability claims also plead negligence in the alternative. This is your personal injury lawyer ensuring that your claim is as watertight as possible. This is because if a claim for breach of a statutory duty fails, perhaps because the employer was not found to be in breach of statutory duty for what ever reason, an injured employer can also rely on pleading common law negligence.
Negligence, however, in my view, is generally harder to prove and easier to defend. For example, unlike breach of statutory duty, the employer can escape liability if the accident which caused the injury was not a foreseeable consequence of their actions or inactions. I will discuss negligence claims in some detail in later posts as these are important routes to bringing personal injury claims in circumstances where there are no statutory duties imposed on individuals, for example, car drivers who injure others in road traffic accidents.
No Win no Fee
Chris is a personal injury barrister and acting solicitor of the Supreme Court of Gibraltar who specialises in personal injury law and representing clients who have been injured by someone else’s negligence or breach of statutory duty. Chris takes on personal injury cases on a No Win No Fee basis where he is able.
Contact Chris for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, on 200 73900 to discuss your personal injury claim and to see how he can help you win the compensation you are entitled to.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site: Chris Brunt Barrister – Gibraltar Personal Injury Lawyer (personalinjurylawyergibraltar.com
