When I was instructed by Gareth (not his real name) to pursue a claim for damages after he lost his eye in an accident at work, I knew it would be a difficult case and one which would be vigorously defended.
Gareth was working as a groundsman on a construction site when a digger bucket struck a discarded paint spray canister, which exploded. A piece of shrapnel from the can shot into his eye. He was rushed to hospital but they were unable to save his sight or his eye, which was later removed.
Gareth has been fitted with a prosthetic eye on the NHS, but that has not been satisfactory. It has not been a good fit, and he has also developed a droopy top eye lid which does not help. He is awaiting further surgery to correct that.
Understandably, he has also suffered from psychological symptoms as a result of having to cope with such a life changing injury. He has had episodes of depression and has struggled to keep working in the same environment as where his accident happened.
Gareth’s employer denied liability for the accident
As I expected, his employer’s insurance company denied responsibility for the accident. They claimed that the accident was not ‘foreseeable’, and also alleged that it was Gareth himself who threw the can away. This was denied by Gareth and his workmates, and from the layout of the site, it made no sense at all.
The legal defence of ‘foreseeability’ was a difficult one to respond to. The legal definition of this is not the same as you may imagine. An employer is not required to guard against every possible accident, as you would expect. They are however required to carry out risk assessments which should identify risks and balance the likelihood of them occurring and the potential level of injury against the costs and feasibility of preventing or reducing the risk of injury.
The insurance company in this case maintained that this was nothing more than a freak accident and not one that the company should have been expected to guard against.
However, in Gareth’s favour his employer did claim that they had a system in place whereby the cans should have been put into buckets, and they claimed that in their ‘toolbox talks’ they had reminded the workmen to keep the site clear of such rubbish.
The medical evidence that was obtained to support the claim also highlighted a very small risk that Gareth could lose the sight in his remaining good eye as well. That risk could have entitled Gareth to claim ‘provisional damages’. This would have enabled him to return for further damages in the event that this happened in the future, and he became totally blind. However, Gareth decided to agree settlement of his claim on a ‘full and final’ basis.
Settling Gareth’s claim
A settlement meeting took place on 22 January 2021. This was conducted remotely by video due to the Covid-19 restrictions. Although the claim had been defended in full, this meeting had been proposed by the Defendant insurance company, and so we expected them to be making some settlement proposals. However, we did not know what level of damages or what stance on liability they had in mind.
We were very pleasantly surprised when the Defendant’s first offer included an admission of ‘primary liability’, so the company admitted that they had breached their health & safety duties to Gareth. They did maintain that Gareth’s damages should include a reduction for ‘contributory negligence’ on the basis of their allegation that the injury had been caused by a can which Gareth himself had discarded on site. In our discussion with Gareth it transpired that there was a witness who could confirm that the can which caused his injury could not have been the same one which he had been using just before the accident. A phone call to the witness and confirmation of his evidence meant that we were able to agree settlement on a 100% basis, at £218,000.
In addition the Defendant insurance company has to reimburse the DWP for the benefits which Gareth received after his accident, and so they are deducted from his damages, as they are treated as an ‘interim payment’ towards his claim for loss of earnings as if the insurance company had paid the money to Gareth direct. The DWP issue a certificate which states the amount of benefits that a claimant receives. That certificate was incorrect and we have already submitted a challenge. Therefore, once the correct amount of benefits are confirmed, Gareth will receive a further sum for the difference.
Gareth’s compensation will make a difference to his life
Gareth will now be able to have further surgery and a new prosthetic eye on a private basis, which I hope will improve his appearance significantly. He will also be able to take time off work and retrain so that he will not have to take the daily risk of further injury working on site, and risk the sight in his good eye.
Gareth commented afterwards “It still feels surreal, but we can’t say thank you enough for helping us settle the case. We wish we both could have given you a hug after but we are sending a virtual one. Thank you so much again.”
