Reducing the risks of working at height

According to HSE statistics for 2023/2024, falls from height were the leading cause of fatalities, accounting for 36%. This article outlines the challenges in defending such claims, HSE’s key guidance, relevant legal cases and practical advice.

HSE and the Work at Height Regulations

The Work at Height Regulations 2005 set out clear responsibilities for employers and those in control of work at height. The HSE defines working at height as:

“Work in any place where, if precautions were not taken, a person could fall a distance liable to cause personal injury.”

Key principles include:

• Avoid work at height where possible
• Where work at height cannot be avoided, ensure it is properly planned, supervised and carried out by competent person
• Use the right equipment, ensure it is well maintained
• Conduct thorough risk assessments before commencing work

Despite these guidelines, breaches continue to occur, often resulting in high-value claims that are difficult to defend.

Why these claims are hard to defend

From an insurance perspective, defending a claim following a work at height incident is challenging for several reasons:

• Strict liability culture: courts tend to side with the injured workers unless the employer can demonstrate clear, proactive compliance with Working at Height Regulations and general duties under the Health and Safety at Work Act
• Documentation gaps: employers often fail to maintain proper risk assessments, method statements, training records, or equipment inspection logs. All these documents are the building blocks to a successful defence
• Perception: many incidents are viewed as avoidable, particularly if fall protection measures are not used

Key legal cases

Several high-profile cases underline the legal risks associated with working at height failures:

Sharp v Top Flight Scaffolding Ltd (2013)

A scaffolder fell while climbing down the outside of a scaffold. Employer held liable for failing to provide safe access and training. Damages reduced by 60% due to contributory negligence, as the worker had chosen their own method of descent.

Bhatt v Fountain Motors Ltd (2010)

Employee fell using a ladder to access loft storage. Employer breached regulations by not providing safer access. Employee found 33% contributory negligent.

HSE v Skylark Ltd (2019)

Worker fell through a fragile rooflight. Lack of edge protection and formal risk assessment led to prosecution.

HSE v Taylor Pearson (Construction) Ltd (2020)

Apprentice fell six meters from scaffolding. Employer fined £280,000 for inadequate training and supervision.

HSE v Southampton Container Terminals Ltd (2002)

Employee fell 11 metres due to an unmarked hole. Company fined £1M for lack of proper work systems.

These cases demonstrate how even minor oversights in planning, training or equipment use can lead to serious consequences.

Cost of claims involving fall from height

Our own data insights from our settled Employers Liability claims over the last 4 years reveal that 48% of falls from height cost over £150,000 to resolve, compared to only 17% of employers’ liability claims generally. Some of these losses can potentially exceed Policy Limits of Indemnity, which should be adequate to reflect the potential exposures businesses might incur.

Example

A male aged 49 at the time of the accident fell from joists of a new build house, sustaining spinal injuries resulting in tetraplegia. The potential value of the claim, with legal costs, exceeded £13M. The Policy Limit of Indemnity was £10M, leaving the customer with a significant potential personal liability. There was no Excess of Loss Policy in place. In this example, there was no Risk Assessment or Safe System of Work, meaning that there was no defence to primary liability. We were, however, able to maximise arguments on contributory negligence and drive the claim swiftly towards settlement to prevent legal costs from escalating. Fortunately, we secured a settlement within the limit of indemnity — but this will not always be achievable.

What policyholders can do: practical risk mitigation

To limit and improve claim defensibility, proactive focus is needed on the following areas:

• Planning: ensure all work at height is justified, and that method statements detail how the work will be safely conducted. Consider weather conditions, type of working at height, potential for falling materials, safe storage of materials, and plan for emergency/rescue should the need arise
• Training: all staff involved should be trained, not just in using equipment, but in recognising hazards and following safe systems of work
• Supervision: a competent person should be present to oversee work and intervene when necessary
• Equipment: prioritise collective fall prevention systems (scaffolding, edge protection/guard rails) over personal protection (harnesses and lanyards) alone
• Documentation: keep clear, date-stamped records of risk assessments, training, equipment inspections and incident logs. A Safe System of Work should show considerations as to why working at height is essential. Documentation often makes or breaks a defence
• Audits: regular site inspections, toolbox talks, and compliance reviews should be routine rather than reactive
• Policy limits: consider your policy limit of indemnity carefully, and consider whether Excess of Loss cover may be appropriate
• Policyholders may also benefit from Zurich Resilience Solutions’ bespoke risk management services, which can support businesses in identifying work at height exposures, reviewing existing controls and strengthening risk management practices. This type of proactive support can help reduce the likelihood of serious incidents and improve the quality of evidence available if a claim does arise.

What employees can do

Employees have general legal duties to take responsible care of themselves and others who may be affected by their actions, and to cooperate with their employer to ensure their health and safety duties and requirements are complied with.

Those working under someone else’s control, by law, must:

• Report any safety hazards identified to their employer
• Use equipment and safety devices supplied properly, in line with training, unless they think that would be unsafe, in which case they should seek further instruction before continuing

Conclusion

Working at height is inherently risky, and defending claims in this area is notoriously difficult. However, with proactive planning, training and documentation, policyholders can significantly reduce the likelihood of incidents and improve their chances of building a good defence if a claim does arise.

Gemma Best, Senior Claims Technician, Large Loss Injury Team

Carl Houghton, Senior Claims Technician, Large Loss Injury Team