Do I have a work injury claim?Updated: September 3, 2020
You may be entitled to claim compensation for a work accident if you were injured in the last 3 years as a result of the actions, omissions or negligence of your employer or any other party that owed you a 'duty of care'. However, certain other conditions must be met:
Duty of care
Employers in the UK owe a ‘duty of care’ to their employees. This means that employers are legally obliged to protect workers from anything that may cause harm. Risks to injury or health in the workplace must be controlled.
If your employer failed in their duty of care and you were injured as a result, it should be possible to seek financial compensation.
What if I was injured but wasn’t technically an employee?
If you were working as a temp through an agency, on a zero-hours contract or self-employed, it may still be possible to make an injury claim.
What if a colleague was responsible for the accident?
If your accident was caused by a work colleague, your employer will probably still be held liable on the basis of ‘vicarious liability’.
In the context of a work accident, vicarious liability means that an employer can be held responsible for the actions or negligence of one of their employees. Your employer is usually still liable even if the accident was caused by a co-worker breaching workplace rules or behaving recklessly.
If the person that caused the accident was an independent contractor, however, then the employer might not be liable and a claim could be pursued against the contractor instead.
Does the injury have to have occurred on company premises?
No. your employer's Duty of care is the same whether you are working from their premises, at home, on the road or even abroad. If you are injured while working for your employer, a compensation claim can still be made regardless of where the accident occurred.
What if I am a homeworker?
If you work from home, your employer’s duty of care is exactly the same as if you work from company premises. If you are injured at home in the course of your employment, your employer is still liable.
Working from home can blur the lines of responsibility. However, your employer should have carried out a risk assessment of your home working environment. Even if a risk assessment was carried out, if you were injured while working at home, a claim should still be possible.
Date of injury
In most cases, the date of the accident, or the date in which your injury was diagnosed, must have happened in the last 3 years. This date, known as the ‘date of knowledge’ (sometimes referred to as the ‘date of discovery’), can also apply to the date that you could reasonably have been aware of the injury.
So if you were injured on the 21st September 2020, then you would be able to start a claim up to the 21 September 2023. This date is known as the ‘limitation date’.
If your injury wasn’t diagnosed until 21 March 2021, for example, then the limitation date would be 3 years hence on 21 March 2024.
What if I was under 18 when the injury occurred?
If you were under 18 when you were injured, you have until your 21st birthday to start a claim. You can still claim compensation if you are under 18, but the claim would have to be filed with an adult (such as a parent or guardian) acting as a ‘litigation friend’.
What if my injury occurred more than 3 years ago?
In most cases, the limitation date will be 3 years after the date of knowledge if you were over 18 at the time of the injury. It may be that the diagnosis was a gradual process, in which case the date of knowledge would be the date that the full extent of the injuries became apparent.
If an injury was fatal, a family member could start a claim up to 3 years after the date of death, as long as this date was within the limitation period of the initial injury.
So I can delay starting a claim right up to the limitation period?
Technically you can start a claim right up to the day before the limitation date.
Practically, you will be unlikely to find a solicitor willing to act for you, at least on a No Win, No Fee basis, if you leave it until the last minute.
It is important to note that the limitation date is the last day that a claim can be formally filed with the courts.
95% of claims are settled ‘out of court’ in a negotiation between the employer’s liability insurer and the claimant’s solicitor. During these negotiations, the threat of formal action serves as a bargaining chip for the claimant’s solicitor. If the limitation date is imminent, the limited time available undermines the claimant’s position and reduces the chances of success,
Solicitors also need to carry out a risk assessment of your case in advance of being able to offer you a conditional fee agreement (No Win, No Fee). As it can take months to obtain crucial medical evidence and other information such as witness statements, solicitors need ample time before the limitation date.
Some solicitors won’t take on a claim with less than a year to run before the limitation date. Others are more flexible and can help up to 6 months or even nearer to the limitation date. It is critical that you don’t delay and seek legal advice as soon after your accident as possible.
Causation and injury
To make a successful work injury claim, it will also be necessary to prove the work accident was the cause of your injuries. This principle is known as 'causation'.The solicitor will use medical evidence and other evidence to establish causation.
What if the accident made a pre-existing injury worse?
If a work accident worsens an existing injury or accelerates a medical condition, it is still possible to claim compensation. Establishing the extent to which an employees condition was made worse by an accident will rely on the medical report.
What if I was partly responsible for the accident?
With most personal injury claims, if you were partly responsible for an accident, then it is possible to apportion blame between you and the defendant. This is known as ‘contributory negligence’.
You may, for example, be injured in a car accident that was not your fault. If your injuries were worsened because you were not wearing a seatbelt, it might be argued that you were 50% responsible for your injuries. In this example, you would receive 50% of the compensation you would otherwise have received if you had been wearing a seatbelt.
Contributory negligence is less clear cut and therefore less likely if the accident occurred at work. The employees work environment, training and experience level will all be taken into account. The courts will also consider whether the employee acted reasonably when taking the risk that led to the accident.
However, if the employee behaved recklessly, a finding of contributory negligence is still a possibility in a work accident claim.
If you have been injured at work in the last 3 years, you may be able to claim financial compensation.
Find out more about making a work accident claim:
- Do you qualify?
- How much compensation could you get?
- How does No Win, No Fee work?