The ‘no win no fee’ risk to employers for hand arm vibration syndrome (HAVS) claims, and what the REAL costs may be

If you have employees using powered vibratory hand tools with poor protective controls in place, then they may be at risk of contracting hand arm vibration syndrome (HAVS). HAVS is a debilitating injury and maybe career ending if its symptoms are not addressed at an early stage.

According to insurers, civil claims are probably the most significant risk to a business associated with hand arm vibration exposure. A quick Google search on “hand arm vibration syndrome” will throw up websites and Google Ads about making claims through “no win no fee”.

We’re all familiar with “no win no fee” in the world of car accidents, but it has now entered and growing in the sector of industrial accidents too. Rightly or wrongly, the employee (especially disgruntled ones who are motivated to do so), or ex-employees can so easily start a claim with a click of a mouse button or a phone call.

“Claims can’t happen to us!”, you say. Or can they?

Avoiding claims

Closing your risk gaps by ensuring regulatory compliance, implementation of best practice methods, and robust safe systems of work are key to preventing injury. These will be examined by legal representatives before deciding to pursue the case. If they’re all watertight, then the case can be rejected from the outstart. This is highly likely to deter bogus, time-wasting claims too.

Defending claims

If appearing in court, defending the case should be straightforward as long as you can prove you’ve appropriate protective mechanisms in place. You should be able to prove that any HAVS injuries arose due to the claimant ignoring your safe systems of work and risk controls, and not through your negligence.

The consequences of a failed defense

Where your evidence of safe systems of work and risk controls are poor or non-existent, then you’re likely to fail. Sure, your insurance will pay out the claim (known as the INSURED cost) should you lose. After all, what do you pay your premiums for? But beware of the tsunami of costs up ahead. Are you aware of these?

What are they, you ask?

They’re UNINSURED costs that kick in and are unavoidable. The insurance DOES NOT cover these costs. Some examples of these are:

  • Lost productivity
  • Sick pay
  • Replacement staff
  • Overtime
  • Increased insurance premiums
  • Court costs
  • Insurance excess
  • Training and re-training costs

The HSE carried out an investigation (HSG245 – Investigating accidents and incidents) and estimated the uninsured costs to be a multiple of the insured costs by a factor of 8 to 36 times!

So, if a typical HAVS claim is in the region of £10-15k (which is not unusual according to a Top 10 Global insurance company), the uninsured cost to you is likely to range from £80k to £540k.

Additionally, think about the non-financial losses like reputational damage, failure to retain or recruit good employees, and decreased morale. These will inevitably be felt financially, and as a result, it could end up costing you even more than just the uninsured costs alone!

Protecting your organisation

How well equipped are you to successfully repel a court claim?

  • Have you determined your risk gaps (your risk assessment, if you’ve carried one out, should tell you this)?
  • Depending upon your findings, you may have to provide your employees with awareness training and health surveillance, and in some extreme cases even stop work. Have you determined these?
  • Do your vibration controls reduce exposure to as low as reasonably possible to minimise the risks of HAVS injuries? How compliant is your organisation with the vibration regulations?
  • Have you a suitable purchase policy for efficient tools? You should also have in place other best practice policies to minimise vibration risks (e.g. when to replace worn consumables).
  • Have you recorded and documented all your actions and processes?

The courts will require you to produce evidence of all this when defending.

How we’ve helped

A manager of a small metalworking business had concerns about the possibilities of litigation in his organisation. The business carried out a risk assessment and asked Essel to sanitise their vibration measurements. However, they had failed to carry out the measurements using guidance in accordance with the correct international standards and also failed to use approved measuring instrumentation. This resulted in invalid measured vibration results and consequently an invalid risk assessment too.

They requested us to carry out a competent risk assessment which helped identify their risk gaps. We made recommendations on how to close these risk gaps to minimise the risks of injury and to be legally compliant.

We recommended the introduction of a purchase policy for acquiring more efficient tools (preferably by trialling the tools first), and to also implement best practice by giving high priority to tool maintenance and servicing (they were severely deficient in this area). We also provided awareness training to operatives which included making them aware of their own legal obligations to minimise the risks of injury (you should know that employees have obligations too).

The business was made aware of what documentation and records to hold in the event of civil claims. The outcome of the whole exercise was that they felt they were confident enough to defend successfully against threats of litigation.

Some free advice here. If you’re thinking of using PPE in the form of anti-vibration gloves to minimise exposure to vibration, forget it. They offer very little protection against injury and their use will not favour your defence.

If all this sounds too daunting for you to do it yourself, simply contact us below for help.


phone: 07710 356663