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
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 -
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.