Carer hit by falling masonry?

[oxcat1]

Wonder if you can help?

I am disabled, and have 24hr care, provided by an agency. A couple of weeks ago, a large section of cast iron railing fell from the flat above, onto my carer, who had just stepped outside the front door to sweep. The paramedics did say that he was incredibly lucky not to have been more severely injured, and after stitching his head (the railings created a sin flap), they discharged him straight home from my house. He had a nasty headache and ?concussion for a while, but it has healed well.

I rent my flat from a private landlord. It is lower ground floor (basement) in a 4-storey listed Georgian building. The ironwork that fell was totally degraded (you could crumble it in your hands), so I contacted Building Control, as several sections of ironwork remain, and also the concrete balcony above me seems cracked. They inspected the flat, and have written to the landlord asking him to complete remedial work ASAP to sort out potentially dangerous loose render, plus the iron work. I am aware that the carer may have a case against the landlord for not maintaining the building adequately.

My question concerns the agency that provides the carers. As his employer, do they have any legal obligation to ensure a safe working environment? The agency contacted their own insurance company immediately that the accident happened, but they have just written to say that they have no obligation or duty to him, and suggesting he contact my landlord instead.

However, I have noticed that my care plan contains several risk assessments on the external of the property: the pavements, stairwell etc. This would suggest to me that perhaps they do have a duty of care towards their employees? I also remember the managing director of a previous care agency physically inspecting a previous rental property before agreeing to permit her staff to work there? Again, this suggests to me that they do have a duty of care? However, a friend has said that she believes that the agency would have no duty of care towards their employees given that their place of work is actually a private domestic property?

Clearly I feel incredibly sorry that this happened to somebody whilst assisting me, and I am also aware the agency care staff are often seen as disposable and replaceable. English is not this carer's first language, and I want to be sure he is not inappropriately dismissed when actually he should have been protected.

Incidentally, since it happened nobody from the agency has been to check the property, and yet their staff have continued to come here and work day after day. Again, I find this odd, given how seriously one was injured. I have taken steps to try and protect the staff, but nobody has asked me about them...?

Any thoughts gratefully received!

Assuming the agency is the employer, they do have a duty of care towards their employees when they are working on third party premises such as your home. They must take reasonable steps to ensure the premises are safe. If it was clear that the railings were liable to fall the employer may be liable. However, if detecting the problem would have involved inspecting the flat above I suspect they would not be liable.

I am not clear why you think the carer might be dismissed. Provided he has worked for this agency for 2 years he can go to tribunal if he is unfairly dismissed. The agency may struggle to argue that it was fair to sack someone for being the victim of an accident. Regardless of whether or not the agency had any liability, it clearly was not the carer's fault.

As I understand it as an employee he too has a responsibility to highlight health and safety risks which presumably he didn't do?

Primary Liaility would lie against the owners of the building, but you are correct to think the employers could also be held liable in certain circumstances, but only where the danger is obvious.

They do have a duty but it also rests on what is reasonable. So for this accident they are unlikely to be liable as it's not reasonable to expect them to do building inspections on the flat above.

However, now there is an evident risk they need to make sure staff being sent there are safe I.e. has an area been cordoned off, has the building been made safe, etc. In the event of a second employee being injured they probably would be held liable.

Thanks so much for all the replies.

Apologies as I wasn't at all clear: I was worried that the carer's legitimate concerns would be dismissed out of hand, not that the carer would himself be dismissed! Sorry.

Since it happened, I have contacted Building Control and they have highlighted potentially risky areas in the external of the building.I suppose I was just a little surprised that at no point has anybody from the office actually been to check the site of the accident, to check to see if it could happen again? Of course it is totally my responsibility to do everything in my power to make it safe for me and everybody else, but I am just a little surprised that they have not been assisting with that, or even asking for updates from me? Nothing more from the office since it happened.

So it seems the summary is that: yes, the employer does have a duty, but only if the risk could reasonably have been foreseen. The entire exterior of the building is badly maintained (as has now been highlighted by Building Control), but they wouldn't necessarily be expected to be alert to dangers from other flats.

I have suggested that the carer contact a no-win/no-fee solicitor, to see if somebody can assist him in taking on either than landlord or the agency. It seems from your replies as though the landlord is the likely target...?

Yes it's the landlords responsibility. I'd point him in that direction.