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 vibratory-powered 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 HAV exposure. A quick Google search on “hand arm vibration syndrome” will throw up Google Ads about making claims through “no win no fee”.

We’ve seen “no win no fee” before in the world of car accidents, but it has now entered and is growing in the sector of industrial accidents too. Rightly or wrongly, the employee (especially disgruntled ones who are motivated to do so) 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. These will be examined by legal representatives before deciding to pursue the case. If they’re all watertight, then a court appearance may be unnecessary, and will highly likely 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.

Why? Because the UNINSURED costs kick in, which are unavoidable. The insurance DOES NOT cover these costs. Some examples are:

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

The HSE estimates uninsured costs to be a multiple of 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 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.

Protecting your organisation

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

  • Have you determined your risk gaps (your risk assessment should tell you this)?
  • Depending upon your findings, you may have to provide 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 low vibration 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 contacted us, concerned about litigation. We carried out a risk assessment (their original one was very poor) to determine their risk gaps and made recommendations how to close this gap, minimising the chances of injury and ensuring regulatory compliance.

These recommendations included the introduction of best practice methods for reducing vibration exposure. We provided awareness training to operatives (making them aware of their own legal obligations to comply with control measures) and how to generate an effective tool purchase policy for low vibration tools. This adopted strategy, including the need for them to keep records, put them in a strong position to successfully defend against potential claims.

 

Some further advice here. If you’re thinking of using PPE in the form of anti-vibration gloves to minimise exposure to vibration, forget it. They are considered ineffective, and its use will not favour your defence.

But if all this sounds too daunting, simply contact us below for help:

email: satish@esselacoustics.com

phone: 07710 356663