Failure in the Duty of Care & Compensatory Schemes

Failure in the Duty of Care & Compensatory Schemes

If any worker who is working gets injured or contracts any sort of disease, this may result in a loss that may include the pain, suffering, as well as a doomed future, with no further income. In many cases, the worker often loses their life, hence the dependents of the worker will suffer the major financial problems in a bitter life ahead.

Since there is no power that can bring a deceased person back to life who lost his life during work, hence, there a few mechanisms evolved over a period of time to compensate the injured person, dependents of the deceased person, as well as those who might be affected due to negligence in the duty of care.

Through these mechanisms, the worker can be compensated, but it must be remembered that these mechanisms have a few imperative requirements which need to be abided. In some mechanisms, the injured person/ or dependents of the deceased one has to prove that the accident occurred due to the negligence of another e.g., an Employer who showed negligence in his duty of care, whereas in other mechanisms it doesn't require anything to prove.

Few of the compensatory schemes devised to fulfill the worker, protection of his basic rights are elaborated below;

1. No-Fault Compensation Claim
2. Fault Compensation Schemes
3. Damages

Scheme 1: No-Fault Compensation Claim

In this type of compensatory mechanism, there is no need to prove someone's fault, instead, it is necessary to establish that the harm was caused as a result of the person's employment. Mostly, the No-Fault Compensation Schemes fall into two broad categories;

1. The employer provides the Insurance Cover and pays the premium to the insurance companies, who in return pay the insurance money to the injured person.
2. The government or a government agency provides the benefits. The system consists of Social Insurance operated by the government or an agency of the government.

Under both mechanisms mentioned above, the injured worker is required by law to report the injury or ill-health to their respective employer. Most countries also have a legal requirement, that the incident which caused harm should be reported within a specific time frame. In some cases, the time frame allocated for reporting an incident can be EXTENDED in cases of occupational diseases, when the time between Exposure to the Hazard, and the Onset of the Disease may be considerable.

• Employer Scheme - Insurance

The legislation imposes the obligation on the employer to provide the Insurance Scheme, The scheme is operated by the insurance company, which is paid a premium by the employer. It must be remembered in some countries, the Employer Scheme (Insurance) is a legal requirement. When the claim is established by the worker or his/her dependents, the initial response is usually made by the insurance company or sometimes by the employer. The decision may be to accept or reject the worker's claim, although it is common for there to be some negotiation between the two parties concerned.

• Social Insurance Schemes

These schemes are administrated by the government and funded by compulsory contributions made by employers, workers, or both, with possible further contributions made from general tax collection. These contributions can be either Fixed-Rate or Earning-Related. This compensatory scheme requires a medical examination to establish the facts like;

1. Nature of the injury
2. If recovery is likely

Following the decision administrated by the government department, the claimant can accept it or challenge it. The claimant completes a form that is evaluated to establish whether the injury was an accident, or in the case of an occupational disease, to check that the claimant has worked in the prescribed occupation. If this is established, a medical examination is required to evaluate the loss of faculty and the level of disablement.

Normally a person with 14% disablement can receive the benefits while those with respiratory disease and deafness, can get benefits at 1% disablement and 20% respectively.

Scheme 2: Fault Compensation Claim

Most countries including the UK, USA, & Australia, have legislation that makes an employer liable for causing harm to the employer or anyone else, as a result of their occupational or activity. A Civil Action is brought against the employer and the need to establish fault on the part of the employer, or one of his or her workers. The claimant has to prove that harm or illness was caused by the negligence of the employer or one of his employees or that has been a breach of health and safety legislation. The liability of the employer comes in 2 ways;

1. The employer is responsible for his or her own acts of negligence - termed Primary Liability.
2. The employer may be Vicariously Liable for the negligence of his/her workers committed in the course of their employment.

In case of the Breach of the Statutory Duty, the claimant has to prove that;

1. The statute places the obligation on the defendant;
2. The statutory duty was owed to the claimant;
3. The injury was of a type contemplated by the statute;
4. The defendant was in breach of that duty;
5. The breach of statutory duty caused the injury;

In an action for negligence, the claimant must prove;

1. The defendant (employer) owed a duty to the victim (employee);
2. The defendant was in the breach of statutory duty;
3. The breach of duty by the defendant (employer) caused harm to the claimant (victim);
4. The harm was foreseeable;

It is worthy to note that, a claim can be made under both headings (Negligence & Breach of statutory duty) simultaneously, although the success under both results in only one award of compensation. One of the employer's liabilities is the extent of the compensation often termed as Damage awarded in a successful action. The compensation is awarded to restore the victim's status that existed before suffering the loss.

Scheme 3: Damages

Damages are divided into 2 different categories as listed below;

• Type 1: Economic & Non-Economic
• Type 2: Compensatory & Punitive

Economic Damages represent economical losses, while non-economic damages are those which are related to pain, suffering, or loss of companionship.

Damages can be compensatory and punitive as their names suggest, compensatory damages compensate the claimant, whereas punitive damages are meant to punish the wrongdoer. 

• Compensatory Damages

The compensatory damages represent the loss sustained by the victim, hence the court decides the amount of compensatory damage. It is further divided into 2 categories termed Special & General Damage.

Special Damage: The key feature of the special damage is that they can be relatively easily quantified because they relate to known expenditure up until the trial, such as;

- Loss of earning;
- Legal cost

- Medical cost

General Damage: The future expenditure and issues which  cannot be precisely quantified, such as;

- Loss of future earnings;

- Future medical cost;

- Pain and suffering;

• Punitive Damages

Punitive damages are awarded to punish the wrongdoer to signify disapproval and deter the culprit (defendant) and prevent the reoccurrence in the future. In some cases, punitive damages are also awarded where compensatory damages are considered inadequate.