The Finger of Blame
Jerry Beere outlines some of the potential issues day nurseries have to face in the growing litigation culture that encourages people to believe that if anything appears to go wrong, then someone should make financial restitution to them.
Excerpt from Nursery Management Today May/June 2006 Vol. 5 No. 3

As we all know, the number of claims for personal injury being made against businesses - and individuals - is increasing. Incidents which 10 years ago would have been written off as accidents now routinely lead to legal actions.

The whole "where there's blame, there's a claim" culture has been well documented I the press and on television and radio over the last five years and I do not propose to go over familiar ground. But there are aspects to the irresistible development of our litigious society which have not been well examined and one of them is the actual process by which a claim is made and how the defendant - you, the nursery owner - should respond.

The process itself can be brutal and unpleasant. Cool reason can give way to blind fury; and normal human relationships, which might have survived with a bit of give and take, can be irreparably damaged.

The process begins with the alleged incident, of course. It is here that the disputes usually start for it is quite common for a nursery owner not even to realise that something serious has happened. A simple entry in the accident book - "slipped in kitchen" - could be completely innocuous and the nursery owner thinks nothing more of it until a solicitor's letter arrives a few weeks later.

What usually develops, of course, is that the nursery owner receives an earful from the parents of the injured child.

When the parents arrive at the nursery and see their injured child, it is not unusual for passions to get out of control and for parents to take it out on nursery staff blame quite frequently, the parents will write a letter asking for your side of events or for an explanation.

More usually, claimants will obtain legal advice from a solicitor or a claims management company and the first you will hear of it will be when you receive a formal letter of claim from a solicitor. These letters are usually quite unpleasant - if you've never seen one before - and will, first of all, baldly declare that you are responsible for the accident and that the claimant is seeking compensation from you.

The letter will then go on to outline the circumstances of the claim (it is surprising how often these vary from the nursery owner's own recollections of the incident; and equally surprising how often the details are simply wrong).

These letters can be pretty upsetting, particularly if you are certain that you have done nothing wrong. But it is important that you think clearly at this point. What you must do is to contact your insurance company immediately and follow their instructions.

Once they have received the letter, the insurance company will contact the solicitors directly and will appoint a loss adjuster, who will some out to investigate the claim on behalf of the company.

Having investigated, the adjuster will make a report to the company which will recommend either that the company rejects the claim outright or that it accepts the claim.

You should note here that it is not unusual for this stage for the process to take several months or even years. We are only now completing a claim that commenced in 1992 - an extreme example but it does illustrate just how lengthy some of these claims can be.

It is at this point, right at the end of the claim, that passions can become inflamed again. It is not unusual for the insurance company to settle the claim for compensation and the claimants' costs and for you, the policy holder, to be absolutely outraged that this has been done in your name. If you do not feel that the original incident was your fault, it can be extremely difficult to accept that the insurance company has come to an arrangement with the claimant. Unfortunately, it is often very difficult for the insurance company to do anything other than attempt a settlement. In my younger and more naive days, I remonstrated with a grizzled old insurance adjuster about his settlement of a claim. I asked him why he had he not fought harder and taken it to court. It was very simple, he explained. If he settled it, it would cost the insurance company 15,000. If he fought it at court and lost, it would cost the company 80,000. Court costs can at the very least quadruple the settlement costs of a potential claim and insurance companies will only very reluctantly go anywhere near a court of law.

No-one likes these claims, except possibly the loss adjusters and solicitors who make their living out of them.