The Unsettling Truth about Personal Injury Claims for HAVS

The HSE guidance around the control of Vibration at Work Regulations 2005 is quite clear and states that you do not necessarily need to measure vibration yourself to be able to control risk and reduce injury from Hand transmitted vibration. There is a rather large ‘Elephant in the room’ here, however, which is the problem companies are facing through personal injury claims.

The UK legal system places a very different burden of proof on criminal cases (prosecution) compared with civil cases (litigation), and this in turn has a fundamental effect on the actions required if you are defending such claims.

In a prosecution by the HSE, they must prove ‘beyond a reasonable doubt’ that there has been a breach of the law. This means it is the HSE who must show that there is no other reasonable explanation that can come from the evidence. In a civil claim, however, the proof only needs to be on ‘the balance of probability’, which means it is more likely than not. The practical effect of this is to move the responsibility to the company to prove innocence when defending a civil claim.

In a personal injury claim for Hand-Arm Vibration Syndrome (HAVS), it becomes incumbent on the company to show that that they did not expose such workers to the risk, so where the HSE might be happy with your HAVS management overall, when it comes to litigation, you may well find it much more difficult to mount a defence, or at least a mitigation.

To get to a position where HAVS claims can be fought successfully, rather than just settled out of court, is going to require companies to carry out more detailed work on most aspects of the subject, especially better risk assessment, health surveillance, control measures and the data you are using. Courts are disinclined to accept data if it is derived from external databases or manufacturers as this does not normally meet the burden of proof requirements.

It should be possible to start defending these claims and this will be the only way to stem the tide of claimants. To do this, however, will require companies to create detailed risk assessments based on measured data, with rigorous control measures put in place, a very good health surveillance programme, and regular review of the whole HAVS management system

at Castle, we are always keen to make sure you have the tools you need to deal with Hand Arm Vibration from beginning to end. We can train you (www.castletrainingacademy.com/vibration.php), provide equipment (https://www.castleshop.co.uk/technical-safety/vibration-meters/hand-arm-vibration-meters), help you with the task or even come and do it all for you (https://www.castle-consultancy.com/health-and-safety/control-of-vibration-at-work/).