A site accident

[Jeremy Harris]

1 minute ago, SteamyTea said:

Seems my neighbour's scaffolding has a tag, can't say I have ever noticed one before.

 

Ours had one too, but it doesn't stop every trade on site just deciding to alter the scaff willy nilly.  I had to keep calling the scaff company out to rectify unauthorised alterations made by others, and just accepted the £50 or so charge I got each time.  It didn't matter how many times I told people not to touch the scaff, they still did. I even threatened one company (the fencing company) with action to recover the cost of getting the scaff reassembled properly, as I had motion camera images of them unbolting stuff and moving boards, but they were such a PITA about it that I just chose not to continue with trying to recover such a relatively small amount, but told them they would never get any more work from us and I'd tell everyone who asked not to deal with them.

[newhome]

6 minutes ago, SteamyTea said:

Seems my neighbour's scaffolding has a tag, can't say I have ever noticed one before.

 

 

Yep, that's what ours was missing!! 

[Jeremy Harris]

5 minutes ago, newhome said:

 

In my case the claim was that the scaffolding was defective and he was instructed to use it by my husband thus rendering him liable for the accident. The scaffolding of course was on hire from elsewhere so one might assume that the liability would pass onto the scaffolding company but in this case it did not and they came after us. 

 

 

 

 

 

Not much use now, but I included a clause saying that although we had provided scaffolding, it was erected and certified by MJ Scaffolding and all liability for them using it rested with that company.  If they spotted an unsafe or changed part of the scaffolding then they should stop working on it and inform me, so that I could call the scaff company out.  Only one company bothered to do this, and then only after a near-miss accident, and that was the solar panel installers.  Everyone else who used the scaffolding just unbolted and moved bits, untied ladders and moved them, shifted boards around, you name it, and it was up to me to walk around each day to see what had been buggered up and then call the scaff company back.

[newhome]

Just now, JSHarris said:

 

 

Not much use now, but I included a clause saying that although we had provided scaffolding, it was erected and certified by MJ Scaffolding and all liability for them using it rested with that company.  If they spotted an unsafe or changed part of the scaffolding then they should stop working on it and inform me, so that I could call the scaff company out.  Only one companny bothered to do this, and then only after a near-miss accident, and that was the solar panel installers.  Everyone else who used the scaffolding just unbolted and moved bits, untied ladders and moved them, shifted boards around, you name it, and it was up to me to walk around each day to see what had been buggered up and then call the scaff company back.

 

This is very much of use now, not to me but for the countless self builders who will read your post and make your advice their modus operandi. This was entirely the point of this thread - to act as a warning and for others to provide ideas as to best practice to hopefully mitigate against issues encountered. Knowledge is power (and good for arse covering too). Re the unbolting, it could easily have been the employees of the contractor who did fiddle around with the clips as up to that point they were the only folk who had used it. 

 

I just read my husband's statement to the solicitor after the incident and he states that originally the contractor told my husband that the insurance claim was going to be against the scaffolding company. I don't know what led to that not being the case but the next thing we knew the claim was served on us, even though the H&S report noted that the scaffolding had missing clips and the H&S officer demanded a site meeting with the scaffolder and ripped into him about the missing clips. The insurance company had the H&S report too but chose to admit liability in the end rather than try to flip the claim to a third party. I have a feeling that they wanted to avoid any court action and had already determined that they would not need to pay out very much money so decided to cut their losses. 

[SteamyTea]

What is needed is a quick precis that included the minimum legal requirements (and links to the legislation), along with some best practice guidelines

Then that needs to be posted somewhere separate for others to find easily.

Good luck with the second part as I suggested some simple calculators that were permanently placed so that we did not have to keep showing the same basic calculations to people.

[vivienz]

Which calculations?

[epsilonGreedy]

I am sure many reading this thread will appreciate that posting this salutary tale of woe necessitates the OP reliving a distressing period of their self build story.

Edited March 31, 2018 by epsilonGreedy

[epsilonGreedy]

After reading this I am beginning to favour the @ProDave self build workflow i.e. live on site and soldier on solo no matter how long it takes.

[ProDave]

Re site insurance.

 

The builders we contracted to do the foundations, and to build and erect the frame, insisted on seeing my "employers liability insurance" which is a part of the self build insurance policy I have.  I don't recall any other self builder being asked to show that.

[newhome]

11 minutes ago, ProDave said:

Re site insurance.

 

The builders we contracted to do the foundations, and to build and erect the frame, insisted on seeing my "employers liability insurance" which is a part of the self build insurance policy I have.  I don't recall any other self builder being asked to show that.

 

How come they didn't have their own insurance cover? 

[ProDave]

3 minutes ago, newhome said:

 

How come they didn't have their own insurance cover? 

I believe they did, but they said I was "employing" them so had to have appropriate insurance, which I did as it came as standard with the self build insurance.  Like I say nobody else has reported being asked for this.

 

They muttered something about it was because I was the Project Manager.

[newhome]

Just now, ProDave said:

I believe they did, but they said I was "employing" them so had to have appropriate insurance, which I did as it came as standard with the self build insurance.  Like I say nobody else has reported being asked for this.

 

Wonder how they would act if they were putting an extension on someone's house (for example).

 

I think them viewing you as their 'employer' is pushing the boundaries when someone is self employed. You are not paying them a wage based on time (presumably) you are paying them to deliver an agreed outcome. You are not involved in paying their tax, NI, and nor are they generally working exclusively for you, in that any contract they have with you will rarely state that they cannot take on other work whilst doing yours. This link gives some guidance, and certainly it seems that there is a distinction to be made that in my view falls towards them being self employed rather than employed by you. 

 

http://taxaid.org.uk/guides/information/issues-for-employees/employer/am-i-an-employer

 

 

 

[SteamyTea]

4 hours ago, vivienz said:

Which calculations?

 

[Temp]

On 30/03/2018 at 20:09, newhome said:

 The scaffolding company collected the scaffolding and put themselves into liquidation meaning that the no win no fee lawyer came after us. 

 

Normally what matters is were they insured on the date of the acident. If they go bust soon after that shouldn't matter as the insurance co is still liable. 

[Temp]

16 hours ago, ProDave said:

I believe they did, but they said I was "employing" them so had to have appropriate insurance, which I did as it came as standard with the self build insurance.  Like I say nobody else has reported being asked for this.

 

They muttered something about it was because I was the Project Manager.

 

That makes sense to me. There has to be one person or company with overall responsibility for the site. If you use a prime contractor to build your house then it's their job and they become responsible for all the other subcontractors, site visitors, and even the customer when he's on site.

 

If you take on the job as prime contractor and hire subcontractors yourself then it's your responsibility.

 

My guess is that other trades didn't know they should really be asking you for copies of your insurance even if they have their own.

 

Edited April 1, 2018 by Temp

[Ferdinand]

And timing is critical for insurance, as we all know.

 

I had a tree branch fall on someone's car, and the house insurance had been moved to a different company 3 hours previously.

 

The new company accepted liability.

 

Ferdinand

 

[Ferdinand]

16 hours ago, newhome said:

Out of interest here is what we were requested to provide by the claimant’s solicitor. It's a long list and I wonder whether it is all applicable to self builders. Most would surely only come under the banner if you were an employer? The statement from the guy says that he was self employed, and then names my husband as his employer. I would have thought those 2 things were mutually exclusive but perhaps not.

 

This is very much a current issue in employment law, and the core issue (for example) of the arguments around Uber - which people are employees, workers, or self-employed service providers? It impacts on benefits and pension and holiday entitlement and sick pay, for example. (Note: using this just as an example; if we want to debate Uber lets do it on a new thread - this one is too important to divert).

 

It tends to turn on who is controlling the day to day work of each individual, assessing whether they have other jobs ongoing at the same time, right to substitute a comparable worker etc. AIUI Deliveroo did not fall down the Uber elephant trap because their contract gave an explicit right to substitute. What is written in a contract may not be the last word.

 

The arguments have a similar 'game of chess' feel to those we have seen around the applicability or not of Council Tax.

 

I can see that someone working for a longish term on a site could be construed as an employee or a "worker", depending on several factors each of which would be a matter of "fact and degree" (to borrow a Planning term) - ie "determined on the individual merits of a case", and you don't know whether you are buggered or not until afterwards.

 

16 hours ago, JSHarris said:

it was up to me to walk around each day to see what had been buggered up

 

That is an old Hewlett-Packard management mantra from the 1970s - Management By Walking Around, where it gives the management a random sample of workplace operation and keeps people on their toes. A good reason to not give the manager a posh system that lets it all be run from a seated position in a nice warm office - also a good reason for not letting "management" be its own discipline.

 

A very good discipline.

 

Ferdinand

 

 

Edited April 1, 2018 by Ferdinand

[Jeremy Harris]

1 hour ago, Ferdinand said:

That is an old Hewlett-Packard management mantra from the 1970s - Management By Walking Around, where it gives the management a random sample of workplace operation and keeps people on their toes. A good reason to not give the manager a posh system that lets it all be run from a seated position in a nice warm office - also a good reason for not letting "management" be its own discipline.

 

A very good discipline.

 

Ferdinand

 

It fits with another point I've made elsewhere in the past, that's unrelated to H&S related issues.  If you are going to project manage your own self-build you really do have to be on site very regularly, even if it's just for a half hour walk around and chat to whoever is working.  Failing to do this is almost a near-certain way of ending up with problems, often not out of incompetence, but just from people "doing what they always do" rather than specifically what you want done.  It's also a way of reminding people, perhaps gently, of the sort of fit and finish you're hoping for, as a way of helping to ensure things are done well.  Tradespeople aren't mind readers, and although you may have the overall plan of what's going where later, they won't, so could very easily put things in the wrong, or an inconvenient, place just by accident. 

[newhome]

3 hours ago, Ferdinand said:

It tends to turn on who is controlling the day to day work of each individual, assessing whether they have other jobs ongoing at the same time, right to substitute a comparable worker etc. AIUI Deliveroo did not fall down the Uber elephant trap because their contract gave an explicit right to substitute. What is written in a contract may not be the last word.

 

I can see that someone working for a longish term on a site could be construed as an employee or a "worker", depending on several factors each of which would be a matter of "fact and degree" (to borrow a Planning term) - ie "determined on the individual merits of a case", and you don't know whether you are buggered or not until afterwards.

 

 

I believe from the above that we were not the employer of this individual as he was instructed to attend the site by our contractor who had the right to substitute workers as needed (although clearly we would have complained if we judged a worker not fit for purpose) and none of the team were there every day so presumably they had other jobs on the go as we had no exclusivity rights. The main contractor seemed to have 1 employee who was with him throughout but he brought others in when needed who I suspect were all self employed. In fact, when the timber frame kit was delivered and erected as it was craned off the lorry the contractor brought his uncle who appeared to direct the whole operation during those 2 days but who we never saw again on site, as presumably he returned to his own jobs along with others who appeared for just those 2 days. It was the most labour intensive time however and time critical given that the crane was on hire.  

 

The ‘you don’t know whether you’re buggered or not until afterwards’ is certainly the case here, and none of my protestations to the solicitor covering the sorts of arguments above amounted to  anything once the guy claimed that he had been instructed purely by my husband as we didn’t have proof that we hadn’t engaged him. The only way round this I can see is to hold a booking in register on site, or for contractors to be told that they must notify the owner of all persons attending in writing before anyone new attends the site. That’s probably easier than having a register. 

[newhome]

15 hours ago, epsilonGreedy said:

After reading this I am beginning to favour the @ProDave self build workflow i.e. live on site and soldier on solo no matter how long it takes.

 

My husband did exactly that, as in live on site and do as much of it as possible himself (some bits I’d rather he hadn’t done in truth ), but you can’t do the main construction work on your own. 

[newhome]

19 hours ago, JSHarris said:

 

I included a clause saying that although we had provided scaffolding, it was erected and certified by MJ Scaffolding and all liability for them using it rested with that company.  If they spotted an unsafe or changed part of the scaffolding then they should stop working on it and inform me, so that I could call the scaff company out.  Only one company bothered to do this, and then only after a near-miss accident, and that was the solar panel installers.  Everyone else who used the scaffolding just unbolted and moved bits, untied ladders and moved them, shifted boards around, you name it, and it was up to me to walk around each day to see what had been buggered up and then call the scaff company back.

 

I wonder who would have been liable had someone fallen off because something had come undone (for example) that no one had noticed. The scaffolding company would argue that it was fit for purpose when erected, you could claim that you undertook due diligence and checked the scaffolding every day, and the person falling can say that their expectation was that the scaffolding was safe and there wasn’t anything noticeably wrong with it that would cause them to be concerned before it gave way and they fell. Poor example but who is liable for the Grenfell Tower disaster for example? There doesn’t seem to be a completely obvious liable person where scaffolding is concerned in my view. 

 

[Jeremy Harris]

The bottom line with H&S is that the person doing the work has to be content that their way of working is OK.  The law uses the "reasonable" test here, and that is not clearly defined, but if it ended up in court it would be the classic case of "was an action deemed reasonable in the view of the man on the Clapham omnibus?".  This test of reasonableness has been around for a very long time, and is used very regularly in and out of court.

 

Accidents do happen where no one can reasonably be expected to take all, or part of, the blame.  A court would, in all probability, say that a daily safety inspection by someone competent would be "reasonable" - it would be unreasonable, for example, to expect hourly scaffold checks.  There is an onus on every individual to check the area in which they are going to be working to make sure it's safe, specifically to pick up on the fact that no one would reasonably expect any supervisor or inspector to do very frequent checks, unless there was a reasonable expectation that safety conditions were likely to quickly change.

 

It's a subject that comes up time and time again in the sort of part time consultancy work I do.  The classic, and very common, case is when a passenger in a small aircraft suffers an injury in an accident and the pilot is sued.  Inevitably the pilot's insurer will seek to obtain as much evidence as possible about both the cause of the accident and the actions the pilot and passenger took before it. 

 

For example, I dealt with one case where the accident was caused by unforeseeable bad weather.  I was able to show that several other aircraft in the area had been caught out by the same unusual conditions that day, and the pilots of those aircraft gave statements that they had done their usual met checks (as had the pilot of the aircraft that was involved in the accident).  Both my view, and that of the AAIB, was that the cause of the accident was the unforecast weather conditions that prevailed very locally at the time. 

 

The AAIB cannot, and will not, attribute, or even hint at, blame, so their evidence isn't often used; normally their report would be submitted as supporting written evidence.  My report to the insurer was that, my opinion, having looked in detail at the accident cause, visited the site, interviewed several witnesses (including the pilot, passenger and other pilots at the same club on that day) was that the pilot had acted reasonably, and done everything he could have reasonably been expected to do in order to have avoided the accident, under the circumstances that prevailed at the time.  The eventual agreement was that the pilot was not considered to be liable, but it never went to court (such cases very rarely ever do) and so I strongly suspect that the insurer made a modest settlement payment to the passenger.  Given they had paid me a few thousand for an opinion, I doubt they would have quibbled over doing something similar with the claimant, if only to avoid the high costs of going to court.

[newhome]

That’s what the insurance company were going to do in this case I believe (as in pay a small sum and avoid court action), and given that the individual wasn’t able to prove any official earnings in his loss of earnings claim I rather suspect it was a couple of grand. They told me early on that they didn’t expect it to reach the court, even though we were served with papers. 

 

In the beginning the scaffolding company offered to pay the guy loss of earnings for a few weeks while he recovered but he wanted too much money so it never happened. I rather suspect that he could have got more than he eventually would end up with if he had accepted their offer, and wouldn’t have needed to wait years for it. That information was all verbal however and whilst I told the solicitor that in my view this was evidence of the scaffolding company assuming liability there wasn’t anything in writing so couldn’t be used. 

 

 

[Jeremy Harris]

There seems to be a general public illusion that insurers pay out vast sums to claimants for personal injury claims, but in my experience they very rarely do.  In around 20 years of doing insurance claim and the very occasional bit of criminal work, I can only recall one case where an insurer did find the pilot they had insured wholly liable and just paid up pretty quickly.  In that case even the pilot's instructor and other members of his club gave evidence that he was known to be reckless, and when I went to the accident scene it was blindingly obvious that he'd been an idiot to have even contemplated taking off from there (the crash was a stall shortly after takeoff from a short bit of grass, whilst trying to climb over some trees, with a tailwind and the aircraft practically at maximum take off weight).

 

In that case I don't know the full sum the insurers paid out, but it was certainly at least 6 months loss of earnings from the fairly seriously injured passenger, plus, I suspect, something for the stress and trauma.  It didn't go to court, and never even went as far as instructing solicitors, let alone barristers, as the evidence against the pilot was just overwhelming.  Even then I doubt that the payout exceeded around £50k in total; certainly not the hundreds of thousands that people assume gets paid out.

[newhome]

8 minutes ago, JSHarris said:

There seems to be a general public illusion that insurers pay out vast sums to claimants for personal injury claims, but in my experience they very rarely do.  

 

Yes I was surprised when I had a look at some case studies. One guy got 13k when a scaffolding pole bounced up and hit him in the face and smashed his cheek and eye socket causing him permanent scarring and a plate in his face. Another guy got 80k when he was electrocuted when the scaffolding was erected too near a pylon. He lost his arm and a foot and sustained other injuries. I know they use pretty strict criteria to determine loss of capacity, earnings etc due to very personal experience in my case surrounding my husband’s illness (mesothelioma) which has now been going on years with no sign of a settlement being offered, but as I’m not dependent on him I’ve already been told I won’t be entitled to much and most of it will go straight back to DWP to repay the personal independence benefits he got when he could no longer walk more than a few feet. It’s the big cases that hit the headlines I guess which lead people to believe that the payouts are huge. In reality where people sustain life changing injuries or even death they rarely make up for any of that.