Health & Safety News Winter 2010
Inside this issue:
Road Traffic Accidents - Who was to blame?
In Forbes v Ferguson (not reported), Mr Forbes raised an action for damages against Mr Ferguson for injuries he suffered when he fell behind Mr Ferguson’s van and the van reversed over him. Mr Ferguson was in the process of turning out of a one-way street when Mr Forbes, who was drunk at the time, fell against the van and then onto the road behind it. Hearing a bang, Mr Ferguson stopped and then reversed back into the side street as his van was causing an obstruction. As he reversed, he ran over Mr Forbes. At Proof (trial) Mr Ferguson claimed that he had done everything that he reasonably could in the circumstances as he had been blocking the flow of traffic and had to reverse to get out of the way. Mr Forbes had put himself in a position of danger and had made no effort to move to safety. The accident had been entirely his fault, or he had contributed to the extent of 90%. The Sheriff decided that Mr Ferguson’s decision to reverse had been negligent. He had seen Mr Forbes and his friends and had reversed illegally into a one-way street without knowing where the men were, as the view from his wing mirrors was limited. Mr Forbes had also breached his duty of reasonable care, however, by falling into the road and his own actions had contributed to the serious injuries he suffered. The Sheriff decided that both men were equally responsible for the accident and Mr Forbes’ contributory negligence was assessed at 50%.
In the case of Easdon v A Clarke & Company, Mr Easdon claimed damages from a haulage company for injuries he suffered in a road accident. One of the haulage company’s employees had been driving a heavy goods vehicle when the cab unit had collided with Mr Easdon’s motorbike. The HGV had been leaving the haulage company’s yard and had driven on to the wrong side of the road after turning round a blind bend. Mr Easdon had approached the bend at less than 30mph and had seen the HGV and braked heavily, but could not avoid colliding with it. The haulage company argued that both their driver and Mr Easdon had been at fault. Mr Easdon had been approaching a blind bend at an inappropriate speed, as he knew that the haulage company’s yard was beyond the bend and he was aware of the possibility of HGVs turning when leaving the yard. Mr Easdon had braked harshly and had failed to take reasonable care for his own safety. The Judge disagreed and found the haulage company liable. Their driver had been at fault because he had driven on the wrong side of the road at a blind bend when there had been no need for him to do so. Mr Easdon’s speed had not been excessive and he had no reason to believe that there would be a moving vehicle on the wrong side of the road. He was not guilty of contributory negligence because of the manner of his braking. He had reacted instinctively by braking hard in an attempt to avoid the collision.
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Quantum Cases
Neck Injuries
Downie v Fife Council
Mrs Downie (aged 40 at trial) claimed solatium (general) damages from her local authority employers for neck injuries she had suffered as a result of a poorly arranged workstation. She claimed that the Council had been in breach of the Workplace (Health, Safety and Welfare) Regulations 1992 and the Council did not dispute liability. Mrs Downie had consulted her GP in 2004 and had been certified unfit for work for over 5 months. She continued to suffer neck pain and had taken time off work. The pain was initially severe and radiated across her shoulders and arms. After several months the pain settled to a dull ache. Mrs Downie required physiotherapy and help with household tasks. The Council’s position was that any ongoing symptoms that Mrs Downie suffered were minimal. The Judge accepted that, although an injury like this would usually be expected to resolve fully after several months, in this case Mrs Downie was likely to be left with a dull ache for years to come. Mrs Downie argued that £6,000 should be awarded as solatium and the Council suggested £3,000 -£3,500. The Judge awarded £5,000 for solatium, with 15% attributable to the future.
Neck Pain
Gray v ASA Auto House GMBH & Company
Mr Gray, a mechanical engineer aged 25 at trial, was injured in a road accident and claimed damages. He experienced immediate pain in his neck and was taken to A&E where he was diagnosed with muscle strain and given painkillers. He continued to experience neck pain for about 6 months and also had symptoms of backache. After that, Mr Gray made a full physical recovery. He had to take about a week off work after the accident and was given light duties for 4 or 5 weeks after his return. He was unable to play football for about 6 months following the accident. He had to drive past the scene of the accident on his way to work every day and was apprehensive about this. Following a Proof (trial), the Sheriff awarded solatium (general damages) of £1,650. The Sheriff decided that Mr Gray’s response to passing the scene of the accident was simply a normal reaction and he had not established a claim for psychological injury.
Upper body injuries and Complex Regional Pain Syndrome
Kerr v Stiell Facilities Ltd
Mr Kerr, aged 38 at trial, claimed damages from his employers after he suffered muscular injuries as a result of an accident at work. He had been helping to move a large circuit breaker downstairs when it began to tip backwards. Mr Kerr suffered pain in his neck, left shoulder and upper back, and later in his right leg. He suffered pain and fatigue on a long-term basis as a result of developing complex regional pain syndrome (CRPS). He had worked on and off for 2 years after the accident and then stopped working altogether. The Judge awarded solatium (general damages) of £40,000, with one half attributable to the past. The award was made on the basis that Mr Kerr had suffered a significant pain disorder, but took into account a degree of exaggeration in his evidence. The main issues at the Proof (trial) were whether the symptoms were genuine and, if they were, whether they had been caused by the accident. Mr Kerr’s presentation in court and during several medical examinations was very different from the mobility he showed in a number of surveillance videos. Despite aspects of his evidence being unreliable and unsatisfactory, the Judge was satisfied on the balance of probabilities that most of his complaints were genuine and not intentionally made up. He accepted Mr Kerr’s evidence that he suffered serious pain and fatigue. The Judge also took on board the fact that many of the health professionals who had treated Mr Kerr over the previous 10 years thought that his complaints were largely genuine. There was evidence to suggest that Mr Kerr would not be able to return to work, even part time. There was a prospect that his symptoms would improve if he undertook intensive pain management but there was only a small chance that he would go back to regular paid employment unless there was a significant improvement in his condition.
Upper body injuries
Tennant v Direct Line Insurance Plc (not reported)
Miss Tennant was a passenger in a car that was involved in a collision. She suffered injury to her neck, upper arms and torso and had to take a week off work as a hairdresser. The injuries also affected her social activities of dancing and callanetics. The pain resolved after 13 months. Miss Tennant suffered travel anxiety for six months following the accident. She argued that a reasonable award for solatium (general damages) would be £4,500. The insurers of the driver who had been responsible for the accident argued that solatium was worth £1,850. The court awarded £2,000 on the basis that the injury was to the neck radiating to the arms, back and shoulder, and there had been full recovery within 13 months.
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General Case Round Up
Psychiatric Injury
Pratt v Scottish Ministers
Mr Pratt, a former prison officer, claimed damages for a moderate depressive illness he developed during his employment. Mr Pratt had tried to break up a fight at the prison and had swallowed blood from a prisoner who was an intravenous drug user. He had developed a depressive illness as a result of his inability to cope with the 3 to 6 month delay before his blood test results were known. He argued that the Scottish Ministers had been aware that certain prisoners were infected with hepatitis B, hepatitis C or HIV and that swallowing blood from a potentially infected prisoner was likely to be a traumatic event for the person concerned. Mr Pratt had not known that his employers had a counselling support service in place to cover this kind of event and he was not given counselling, nor was he put in touch with any member of the prison care team. The Scottish Ministers argued that the law imposed significant limits on the recovery of damages for purely psychiatric injury and Mr Pratt’s case did not fall within any of the recognised categories. Psychiatric injury caused by fear of developing a physical disease in the future was not actionable. If Mr Pratt’s claim successful, there would be a risk that all employers would have a general liability to insure the mental health of their workers. The Judge decided that evidence would have to be heard before a final decision could be made. It was not the case that, even if Mr Pratt could prove everything that he alleged his case would necessarily fail.
Catastropic Injuries
Gordon (Milligan’ Guardian) v Lynch
An action for damages was raised on behalf of Mr Milligan, an unemployed carpenter who was 44 years old at the time of the trial, following a road accident in which he was severely injured. He suffered a traumatic brain injury and numerous fractures to his lower limbs. He was left with considerable mobility problems. He suffered a significant range of cognitive impairments and a psychotic personality disorder for which he would have to take medication for the rest of his life. He was left with impaired vision and a risk of developing epilepsy. The claimant would need a full 24-hour care regime for the rest of his life. His life expectancy had been reduced by about 10 years. Liability was not in dispute and the Proof was restricted to quantum. The Judge awarded £200,000 for solatium (general damages), with one half attributed to the past. All the medical experts who had given evidence were of the view that the claimant’s brain damage fell into a category of “very severe” in the JSB guidelines, which gives a suggested range of awards from £180,000 to £257,750. The Judge also took into account the nature of the claimant’s injuries and the profound impact they had had on his life when deciding on the level of the award.
Asbestos Claim
Young v The Advocate General for Scotland
Mr Young was a former fitter, aged 60 at the time of the Proof (trial). He claimed damages from the Advocate General, representing his former employers (the MoD and Dept of Trade and Industry), for an interstitial lung disease that he claimed was asbestosis and was caused by exposure to asbestos during the course of his employment. Although it was not disputed that Mr Young had been exposed to asbestos as a result of his employers’ negligence and that the cumulative effect placed him at risk of developing asbestosis, the Advocate General argued that the condition from which Mr Young suffered was actually cryptogenic fibrosing alveolitis (CFA) and his former employers were not responsible for this. Both parties led evidence from expert witnesses. The Advocate General’s expert, a consultant in respiratory medicine, expressed the view that the risk of asbestosis was related to the cumulative exposure to asbestos and Mr Young’s exposure had been mostly indirect. The absence of pleural disease was also a factor that pointed away from a diagnosis of asbestosis.
The Judge decided that Mr Young should be awarded damages. The risk factor for asbestosis was definitely present and, as a result, it was not necessary to consider the length and severity of exposure to asbestos fibres. The evidence of a consultant physician for Mr Young, which had been accepted, was that exposure to asbestos at a level that gave rise to the risk of asbestosis was a crucial diagnostic factor and, once over the minimum threshold, the level of exposure was only relevant to the severity of the condition. The consultant physician’s conclusion was that the absence of pleural disease was a factor that should be given less weight than other issues in diagnosis and the Judge decided that this was preferable to the approach of the Advocate General’s expert. Nothing in the results of the tests that had been carried out was illustrative of the type of rapid decline that seemed typical of CFA and so, although it was finely balanced, these supported rather than detracted from a diagnosis of asbestosis. In addition, Mr Young had survived longer than the average CFA sufferer and this was another factor that pointed to a diagnosis of asbestosis. All the most important diagnostic factors supported a diagnosis of asbestosis.
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Application of The Workplace (Health, Safety and Welfare) Regulations 1992
There have been a number of cases considering the application of Regulation 5 of the 1992 Regulations and a recent decision has been welcomed as clarifying the position. In Munro v Aberdeen City Council Mrs Munro claimed damages from her employers after she was injured when she slipped and fell on ice in the car park at work. She claimed that her employers were in breach of Regulation 5(1). This provides: -
"The workplace ... shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair."
The central point in dispute was whether Regulation 5(1) applied to temporary hazards like ice in a car park. If the Regulation did apply, the Council’s liability would be strict and Mrs Munro would not have to prove that the Council had been negligent in order to be successful. In addition, the Council would not be able to rely on the defence of reasonable practicability. The Judge decided that the Regulation did not apply to temporary hazards like ice in a car park. There was a distinction between structural hazards, where strict liability applies, and temporary hazards.
Mrs Munro chose not to base her case on Regulation 12 of the 1992 Regulations. This differs from Regulation to 5(1) as it does not impose strict liability on employers and, if faced with a claim under this Regulation, employers can rely on the defence of reasonable practicability. Regulation 12 deals with the condition of floors and traffic routes and provides that:-
“(3) So far as reasonably practicable, workplace floors and the surface of every traffic route in a workplace has to be kept free from obstructions and from any article or substance that may cause a person to slip, trip or fall.”
If Mrs Munro’s claim had been based on Regulation 12, the outcome may have been different.
The decision illustrates the need to consider the circumstances of each case carefully before assuming that strict liability will apply.
We understand that the Judge’s decision is to be appealed and so the Inner House of the Court of Session may have an opportunity to consider this issue.
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Reduction in Workplace fatalities
According to figures published by the Health and Safety Executive (HSE) towards the end of last year, workplace fatalities fell to a record low in the year from April 2008 to March 2009. Fatal injuries at work fell from 233 in 2007/08 to 180 in 2008/09, and there was a reduction of more than 7,000 in the number of reported major injuries. Reported major injuries at work have fallen since 2000 and this trend continued in 2008. The number of people estimated to be suffering from work-related ill health fell by 79,000 in 2008/09 to 1.2 million. HSE chair Judith Hackitt said the improvements were 'really encouraging' but added: “History suggests that when we start moving back into economic growth the rate of work-related injuries will tend to increase. Preventing history from repeating itself is a challenge facing everyone with a stake in health and safety in the workplace - regulators, employers and employees alike: we all need to be part of the solution.”
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Is Britain's Health & Safety Culture Excessive?
At the end of last year the Conservative Leader, David Cameron, divided opinion when he criticised heath and safety regulation in Britain, describing this as “over the top”. He suggested that people who act in good faith should be given better protection from being sued or prosecuted and small businesses and voluntary organisations should have their health & safety responsibilities reduced. Although he accepted that health & safety regulations had saved many lives, he argued that something had gone “seriously wrong with the spirit of health and safety” in the past 10 years. He cited the examples office workers not being able to move a chair without supervision and trainee hairdressers not being allowed scissors in the classroom.
He claimed that what he described as “overbearing rules and regulations” were “ a straitjacket on personal initiative and responsibility” and suggested that the biggest cause of Britain’s health & safety culture was the perception that “behind every accident there is someone who is personally culpable, someone who must pay”.
Mr Cameron intends to set up a review into how the Health & Safety culture can be controlled.
Not everyone agreed with Mr Cameron’s view. Ruth Doyle from the Institute of Occupational Safety & Health suggested that legislation is not the problem. She blamed widespread misunderstanding of the rules and the claimed that Mr Cameron was “retelling some of the myths in order to highlight the issue”.
A Department of Work & Pensions spokesman said that the Health & Safety Executive wanted to help to make sure that businesses could comply with regulations in a way that was sensible and proportionate. He said that health and safety “is not just about rules and regulations; it is about the reduction of accidents and injuries in the work place.”
The Institute of Directors indicated, however, that, although proportionate health and safety protection is essential, a control on excessive regulation would be welcome.
Elena Fry, Head of Biggart Baillie's Health & Safety Team, commented "The Health and Safety at Work Act was introduced in 1974 for the benefit of both employers and employees and since its introduction there has been a significant reduction in the number of workplace deaths and incidents involving serious injury. Health and Safety regulations are necessary and most employers understand the need for these and do their best to comply with them. No one wants to see Health and Safety regulation imposed just for the sake of it, but many of the situations described by Mr Cameron as examples of excessive regulation are not, in fact covered by health and safety regulations at all."
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The information contained in these articles is given for general information only, reflects the current law on the date of the article, and does not constitute legal advice on any specific matter