The above title may provoke thoughts or comments about the ‘no win no fee’ television commercials that at one time were prevalent on our TV’s, however finding out about entitlement to compensation is an important step in the journey you make following an accident at work. The way Irish law works means that not every person that is injured whilst working is entitled to make a claim * against their employer, however undertaking some initial research and understanding the law will help you to understand your eligibility.
As an employer there are certain legal responsibilities that must be undertaken in order to satisfy both common law and the extensive health and safety regulations that are in place. These laws are in place to ensure there is a duty of care for an employee’s safety that is consistent across the country. This duty of care falls into four areas and an employer is legally obliged to meet the criteria within these four areas:
- Competent co-workers
- A safe place of work
- Equipment which is proper and fit for purpose
- A safe system of work
Irish law identifies these areas and the above is what will be tested in any potential claim *, however in Ireland the onus is on the injured employee to provide evidence that demonstrates that their injury occurred due to the employee’s failure to take reasonable precautions. Irish law also takes into account the circumstances of the employee and looks at whether the injury was caused through their actions. This essentially means that a claim * by a new, inexperienced employee could stand a better chance of succeeding compared to a well experienced worker who has the benefit of experience in the workplace.
This precedent, coupled with the health and safety legislation – embodied by ‘The Safety, Health and Welfare at Work Act 2005’ – means that professional legal advice should be sought as soon as possible following an accident.
How do I know if I am eligible? How can an injury solicitor help?
As described above the Irish legal system means that the employee has to demonstrate the employer’s failure to meet their legal obligations in order to be successful in their claim *. This means that not every claim * is necessarily eligible for any compensation and that your claim may potentially fail – if you do not carry out the initial checks first.
It is also important to recognise that whilst it may appear that you would not be successful in a claim *, there may be a shortfall that you are not initially aware of. This is where an experienced injury solicitor can pay dividends as their working experience of dealing with workplace injury claims means they are well placed to understand the law and know what to look for. Using a specialist injury solicitor will answer the question of eligibility after consulting with other experts in the field, including forensic engineers and health and safety consultants.
The same goes when it is the other way around and you, as an injured employee, believe you have a clear cut case – with Irish law as it is you should not assume that you are entitled to damages. The best course of action would be to talk about your case with a specialist injury solicitor at the earliest possible time, giving as much information about the circumstances surrounding the injury so they can form some initial assessments. Having the time to assess the evidence and most importantly, having the evidence in place, can be the difference between winning you claim * and losing it.
How long do I have to make a claim?
The length of time an employee has to make a claim * against an employer is a somewhat murky area of the law. In terms of statute law there is a limit of two years to bring a claim *, however there are certain instances where this does not strictly apply.
The first of these instances is where an injury is cumulative in nature, for instance if you have been suffering from back pain for a number of years due to heavy lifting which then develops into a more debilitating injury over time. In these circumstances the two year limit for making your claim * starts when the injury becomes ‘significant’. There is no statutory definition of what makes an injury ‘significant’ so it comes down to a case-by-case decision.
The second of these circumstances we will refer to as the date of knowledge. This is determined as when you have become aware of all of the following information:
- Knowledge that you’ve been injured
- Knowledge that your injury is ‘significant’
- Knowledge that your injury was caused by the fault of your employer
Once you are aware of all of the above the two year period begins. An example of this would be a chemical worker who, having worked with certain chemicals without incident for a number of years, falls ill and the diagnosis places blame on the exposure to the chemicals you were working with. This would be deemed the time that you knew all of the above and your two year claim * period would begin following that diagnosis.
The third and final area of leniency towards the strict two year claim * period comes in the form of disability. This means that the two year Statute of Limitations would not come into force whilst the injured party was deemed to be under a legal ‘disability’. This includes any person that is found to be legally ‘of unsound mind’ which, in more simple terms, is someone that lacks the fundamental cognitive abilities of a typical adult. This can be brought on through a head trauma or if an injury places them in a coma. In these circumstances the two year limit would come into force once they are able to satisfy the date of knowledge test.
Don’t delay a claim
Even though there is the ability to make a claim * within a two year claim *, most situations would not have much basis to delay in making a claim *. In most cases it is advisable to seek professional assistance from a solicitor at the earliest possible convenience.
About the Author
Mike James is an independent blogger working in the legal industry. Mike is currently working with personal injury specialists McCarthy & Co. Solicitors, who provided advice and guidance on the legal regulation aspects of this article.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.