If you’ve been injured at work, an injury claim can give you much-needed financial support to compensate you for the pain and losses you’ve suffered as a result of your injuries. But making an industrial injury claim against your employer can quickly become complicated, not least due to the complexities around proving negligence, liability and the cause of the injury.
The following guide for claimants provides a useful overview of the industrial injury claims process, from what injuries are covered and who can claim, to the time limits to do so.
What is an industrial injury claim?
An industrial injury claim is a claim for personal injury arising out of an injury at work or related to the type of work that the claimant does, typically sustained over a prolonged period of time through exposure to dangerous practices within the workplace.
As with any employer liability claim, an industrial injury claim will be founded on the basis of the employer’s alleged wrongdoing, where all employers have a statutory duty to ensure the health, safety and welfare at work of their employees. This means that where your employer has breached their duty of care, together with any additional duties arising under relevant workplace regulations, and their breach of duty has caused you to suffer an industrial injury, you will be entitled to claim compensation for your pain and suffering.
What counts as an industrial injury?
Industrial injury can cover a number of different types of work-related injuries, illnesses, diseases or disability, although most types of industrial injuries are categorised as ‘long-tail’ conditions. This essentially means that the ‘injury’ has arisen from the cumulative exposure to a harmful workplace practice, with a delay between exposure and the onset of symptoms. As such, some of the most common types of industrial injury claims will be for:
- noise-induced hearing loss: where prolonged exposure to high levels of noise, such as loud machinery in the workplace, has caused permanent hearing loss and tinnitus, ie; a ringing sound or other noises, such as roaring or buzzing, in one or both ears.
- asbestos-related conditions: where prolonged exposure to asbestos through inhalation of fibres has caused asbestosis or mesothelioma. Asbestosis is scarring of the lungs leading to breathing difficulties, while mesothelioma is a malignant tumour of the lung-lining.
- hand-arm vibration syndrome (HAVS): where prolonged exposure of the hands and arms to excessive vibration, such as through the use of hand-held vibrating tools, has given rise to damage to the blood vessels, plus damage to the nerves in the arm(s) and hand(s).
Who can make an industrial injury claim?
You can make an industrial injury claim if, for example, you have been exposed at work to harmful practices over a prolonged period of time and have suffered injury or illness because of your exposure. This could include, but is not limited to, exposure to high levels of noise or asbestos, or your hands and arms have been exposed to excessive vibration.
Importantly, you may still be able to make a claim, even if you no longer work for the same employer or you have subsequently retired. You also do not need to have a clear diagnosis before seeking the advice of an industrial injury claim solicitor, where your solicitor will undertake further investigations on your behalf to establish the nature and extent of any injury or illness, and whether this was caused as a result of your working environment.
How to make an industrial injury claim
Having instructed solicitors with experience in handling industrial injury claims, you will be advised as to whether or not your case warrants further investigation.
Subject to entering into a no win-no fee agreement, or a suitable alternative funding arrangement, your solicitor will undertake a number of steps on your behalf to be able to fully assess the merits of your claim. These steps will typically include the following:
Taking a witness statement from you: by documenting your full work history, your solicitor can begin to build a clear picture as to the likely onset of your industrial injury and its probable cause. You will be asked about the frequency and periods of exposure to any harmful work practices; any non-occupational exposure, such as listening to loud music if complaining of noise-induced hearing loss; when you first became aware of symptoms and first sought medical treatment; your own thoughts on the most likely cause of those symptoms and when you first linked those symptoms to your occupation.
Obtaining your medical records: by reviewing your GP and hospital records, your solicitor can ascertain when your symptoms were first reported and what medical assessment, if any, has been made of your injury or illness to date. In some cases, you may already have a clear diagnosis of an industrial injury while, in others, you may simply be showing signs of a potentially actionable injury, such as noice-induced hearing loss, asbestosis or HAVS.
Instructing a medico-legal expert: in any industrial injury claim, you will need a medico-legal expert to examine you and prepare a report on the nature and extent of your industrial injury. The expert will report on your history of symptoms and occupational exposure, as well as their findings following a physical examination of you, providing a diagnosis and prognosis based on these findings and a review of your medical records. The issue of medical causation will also need to be addressed by them, ie; whether your injury is directly attributable to exposure to any harmful practice within the workplace.
Obtaining your employment history from HM Revenue & Customs (HMRC): by providing your solicitor with the necessary consent, they can obtain an official record from HMRC of all your employers over the course of your working life. In this way, your solicitor can identify when you may have first been exposed to any harmful workplace practice. Where you have worked in the same industry or similar job role for your whole working life, you may have a potential industrial injury claim against more than one employer.
Tracing any relevant insurers: having received a record of your employment and potential exposure history, and identified the employers against whom you may have an actionable claim, your solicitor can then seek to identify any employer’s liability insurers in place for the relevant timeframe over the dates or periods of exposure. A former employer’s insurance provider can usually be traced through the Employers’ Liability Tracing Office.
Sending a letter of claim: once your solicitor has established the basis of your industrial injury claim and against whom a claim could potentially be brought, and a decision has been made between you and your solicitor to pursue compensation for your injury, your solicitor will contact any relevant employer(s) and their insurers by way of a letter of claim. This is a formal letter putting the proposed defendant(s) on notice that court proceedings may be brought against them for your injury and any other losses.
A letter of claim should contain a clear summary of the facts and a chronology of the relevant events on which your industrial injury claim is based, including details of the injury alleged and the main allegations of fault. It should also give details of your present condition and prognosis, and an outline of any financial losses that you have incurred.
Your solicitor will usually enclose additional information at this stage to enable the defendant’s insurer to commence investigations and put a broad valuation on the risk. This could include a copy of your employment history record from HMRC where you have been employed by a number of different employers, and your injury or illness has had a long latency period, for example, mesothelioma typically takes between 10 to 50 years to develop after asbestos exposure. On receipt of any letter of acknowledgement from the defendant(s) or their insurers, your solicitor may also disclose your medical report and records to help an assessment to be made as to the potential value of your claim.
What will you need to prove in an industrial injury claim?
In addition to your medical evidence, to be able to successfully prove your industrial injury claim — where the burden of proof lies with you as the claimant — expert opinions may also be needed on the issue of fault and any apportionment between different employers. As such, if the proposed defendants(s) dispute liability, further experts may need to be instructed. In these cases, your solicitor will usually commission an engineering or other expert to provide evidence as to the level of your exposure. This is because, where liability remains in dispute, the issue of legal causation will need to be addressed when making an industrial injury claim, ie; whether any alleged breach of duty by your employer(s) in terms of your exposure to a harmful workplace practice can be said to have caused your injury.
At this stage, your solicitor will also obtain witness statements from other employees, or health and safety officials working within the same employment, to provide corroborative evidence as to your exposure levels and working environment, as well as seeking disclosure from the proposed defendant(s) of your occupational health records and personnel file(s).
By seeking copies of your work records from any relevant employer(s), your solicitor can undertake a detailed assessment of your job role or working conditions to provide a clear context for any evidence surrounding the issue of fault. Your solicitor may also request additional documentation from the defendant(s), including health and safety policies and minutes of meeting; health and safety assessments and training; the provision and instruction in the use of protective equipment or clothing; any warnings or disciplinary procedures for any failure on your part to follow health and safety procedures; any changes in working practices; and any evidence of complaints made by you or other employees.
Provided the totality of the evidence gathered by your solicitor discloses an actionable claim, the defendant’s insurers may be open to negotiating an out-of-court settlement to mitigate any litigation risk. If there are several relevant employers, the value of your claim may also be apportioned, ie; split between each of them, typically on a time-exposed basis.
How much compensation can you get for an industrial injury claim?
When it comes to compensation for industrial injury claims, the value of your claim will be based on a sum for general damages, ie; your pain, suffering and loss of amenity, together with any special damages. These can include loss of earnings, both past and future, the cost of medication and any treatment, care costs and any other out of pocket expenses.
Your claim for general damages will need to be assessed with reference to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCGs). The JCGs provide ranges of awards for different types of injuries, including deafness and tinnitus, asbestos-related disease and work-related limb disorders. Depending on the severity of your industrial injury, a claim could run into tens of thousands of pounds.
How long does an industrial injury claim take?
Industrial injury claims are highly complex legal and evidential claims to prove, where the process of identifying the proposed defendant(s) and gathering the necessary evidence can often take several months, sometimes more. In the event that liability is denied, and court proceedings need to be issued, a claim can take 1-2 years, or even longer, to complete.
Further, where the ‘date of knowledge’ of your injury is in issue, this can often provide a barrier to settlement and add a protracted layer to any legal proceedings.
How long do I have to make an industrial injury claim?
The time limit for bringing a personal injury claim is 3 years from the date of injury or from the ‘date of knowledge’ of that injury. In most cases, the date of knowledge and date of injury will be one and the same, for example, the time limit for an industrial accident claim, where you injure your back in a slip at work, will be 3 years from the date of the accident.
In contrast, most industrial injury claims are traced back not to a single event, but rather to working for months or years in an environment, for example, without suitable ear-protection or ventilation and the onset of symptoms has occurred decades after the alleged period of exposure. In these cases, the question of whether a claim is statute-barred is often an issue taken by the defendant(s), where the court will ultimately need to determine when you knew, or ought reasonably to have known, that your injury or illness was potentially caused or contributed to by exposure to harmful practices in the workplace.
Depending on the nature of your industrial injury, the date of knowledge could be the date that your symptoms began or that you received medical advice about those symptoms, or the date you suspected that you had a work-related injury or illness. This can present tricky evidential issues as to when you first reported your symptoms, what questions you asked your GP and even whether further inquiries should have been made by you at the time.
The fact that an industrial injury claim can be brought years after any exposure occurred can also make it difficult to identify potential lay witnesses in support of your claim, such as health and safety officers or other affected employees at the time. However, with the help of a solicitor with experience in handling these types of claims, these barriers ‘can’ be overcome and often claims ‘will’ be settled by the insurers without recourse to litigation.
Industrial injury claims FAQs
How long does industrial injuries claim take?
Industrial injury claims can be complicated, where it can often take several months to simply gather the necessary evidence to determine if there is an actionable claim. If the matter goes to court, it could take at least 1-2 years.
Is industrial injury benefit backdated?
If you are eligible for industrial injuries disablement benefit (IIDB) because you have become ill because of your work, your claim for IIDB can be backdated for up to 3 months if you would have been entitled to it earlier.
How is industrial injuries paid?
Industrial injury claims will be paid out by the employer’s insurers. This will be the insurance providers in place during the relevant period of exposure, for example, to excessive noise in the context of a claim for noise-induced hearing loss.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
