Health & Safety Newsletter Autumn 2010
Inside this issue:
Seatbelts and Contributory Negligence
The Department of Transport carried out a survey last year into seatbelt use in England and Scotland. According to the Seatbelt Survey 2009, the seatbelt wearing rates for drivers in Scotland were said to be 95% and the rates for front and rear seat passengers were 97% and 88% respectively.
It has long been established that a claimant’s failure to wear a seatbelt can result in a finding of contributory negligence. In the often quoted case of Froom –v- Butcher 1976 2QB 286, which was decided before the wearing of seatbelts became mandatory for drivers and front seat passengers, Lord Denning suggested that a 25% reduction for contributory negligence should be applied if the wearing of a seatbelt would have prevented the claimant suffering any injury. A 15% reduction would be appropriate if the claimant suffered a less severe injury and no reduction should be made if the injury would have occurred even if a seatbelt had been worn.
Although the Courts have always made it clear that every case is to be decided on its own facts, many cases have been decided on the basis of Lord Denning’s suggested reductions over the years.
In a recent English decision – Hitchins –v- Berkshire County Council, a Deputy Judge in the High Court did express some difficulty in following Lord Denning’s figure of a 25% reduction if the wearing of a seatbelt would have prevented any injury. The Deputy Judge did not feel bound by Lord Denning’s figures and indicated that a deduction of 50% for contributory negligence would have been appropriate in such a case. This decision was appealed but, at appeal, the claimant accepted a 50% deduction and, on that basis, the case was settled without the Appeal Court having to consider the decision in Froom –v- Butcher.
The wearing of a seatbelt is, of course, part of a driver or passenger’s duty to take reasonable care for his or her own safety. In order to establish that there should be a finding of contributory negligence for failure to wear a seatbelt, expert medical evidence is required to demonstrate that the wearing of a seatbelt would have made a difference to the outcome of the accident. The importance of such evidence is demonstrated in the decision in the case of Stanton –v- Collinson 2010 EWCA Civ 81, in which the Appeal Court in England decided that the judge who had heard the case initially had not been wrong to find that there had been no contributory negligence on the part of the claimant, a young man who had suffered severe brain injuries in a road accident, despite that fact that, at the time of the accident, he had not been wearing a seat belt and had had another person sitting on his lap in the front passenger seat. The judge had been entitled to find that there had been insufficient medical evidence on the link between the claimant’s failure to wear a seatbelt and the extent of his injuries to enable her to make a finding of contributory negligence. The Court of Appeal expressed support for Lord Denning’s scheme of deductions set out in Froom v Butcher.
It is worth mentioning that, as it is possible to have a civil jury trial in a personal injury case in Scotland, there is always a possibility that a jury would decide not to follow Lord Denning’s guidance in Froom –v- Butcher and will make a higher finding in relation to contributory negligence.
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Help to Reduce Musculoskeletal Disorders
Earlier this year, an online tool was added to the HSE website to help employers reduce the risk of staff developing musculoskeletal disorders (MSDs). The HSE explained that MSDs have been identified as a priority because, although they can not be prevented altogether, there are steps employers can take to prevent or minimise MSDs. Musculoskeletal disorders are one of the most common type of occupational illness and are said to affect more than half a million people every year. Very broadly, MSDs affect the muscles of the body and the ligaments around them. The disorders are often linked to the frequent handling of light loads and/or repetitive tasks, including the regular use of hand tools.
The Health and Safety Executive and the Health and Safety Laboratory have developed the Assessment of Repetitive Tasks Tool (ART Tool) and this can be downloaded from the Health and Safety Executive’s website. Click here to view.
In order to be effective, the ART Tool will have to be used regularly and accurately.
Upper limb disorders (ULDs) are among the most common forms of musculoskeletal disorders. There are a number of conditions which fall into the category of work related upper limb disorders, including carpal tunnel syndrome and tenosinovitis, which involves the inflammation of the fluid filled sheath across the tendons at the front of the wrist and fingers. It also includes epicondylitis, the inflammation of the elbow joint. The JSB Guidelines (9th Edition) cover work related upper limb disorders and suggest that the level of award for solatium (general damages) for such disorders will be effected by a number of considerations, including:-
- Whether the condition affects one or both limbs.
- The level of the symptoms, pain, swelling or tenderness.
- The ability to work.
- The capacity to avoid the recurrence of symptoms and whether surgery has been or will be necessary.
Awards range from £14,750 for continuing disability in both limbs with surgery and loss of employment to £1,400 for complete recovery within a short period.
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Health & Safety Executive – Dangerous Construction Sites
The Health and Safety Executive announced earlier this year that it was launching an intensive inspection initiative aimed at stopping dangerous practices on building sites across Britain. The initiative is intended to raise awareness of the risks on construction sites and prevent unnecessary injuries on death. Inspectors intend to make unannounced visits to construction sites and will focus on refurbishment or roofing work. They will want to make sure that working at height is being managed safely.
Construction is known to be one of Britain’s most dangerous industries and working at height raises particular concerns. In one month alone, there were several convictions for health and safety breaches on construction sites and involving working at height.
A firm of architects and a construction company both pled guilty to health and safety breaches following the death of a worker at a construction site in 2005. The construction company’s employee had been working for a subcontractor on the air conditioning plant of a new building. The air conditioning plant was built on a platform accessed by a ladder at the edge of a flat roof. The roof only had a low parapet and this was not high enough to stop the worker falling 9 metres to the ground. The architects’ firm pled guilty to breaches of Regulations 13 and 14 of the Construction (Design and Management) Regulations 1994, which require designers to take safety considerations into account, and was fined £120,000 and ordered to pay costs of £60,000. The construction company pled guilty to breaching Section 3(1) of the Health and Safety at Work etc. Act 1974 for failing to safely manage subcontractors working for it and was fined £75,000 and ordered to pay costs of £68,000.
A major construction company was fined for failing to protect workers from falls at height on a site in South Wales. A health and safety inspection of the site last year, brought to light a number of clear failings that put workers at risk of falling from height. These included unguarded lift shafts on first and second floors and inadequate edge protection to prevent workers falling. The visit brought to light. Although no-one had been injured on the construction site, the case underlines the importance of protecting workers when working at height. The company pled guilty to breaching Regulation 6(3) of the Work at Height Regulations 2005 and was fined £10,000 and ordered to pay costs of just over £4,500. Regulation 6(3) provides that where work is carried out at height, every employer “shall take suitable and sufficient measures to prevent, so far as reasonably practicable, any person falling a distance liable to cause personal injury”.
A scaffolding firm was prosecuted after a roofer fell more than six metres when a scaffolding platform collapsed. The roofer was seriously injured and it was discovered that the scaffolding had not been of suitable strength or rigidity for its intended purpose. The scaffolding firm was found guilty of breaching the Work at Height Regulations 2005 and was fined £3,500 and ordered to pay costs of £3,000.
A roofing company in Carmarthen pled guilty to a breach of Regulation 4 of the Working at Height Regulations 2005 after an apprentice was injured when he fell three metres through a fragile roof in October last year. The roof was to be removed but the company had not carried out a specific risk assessment in relation to this job and there was nothing to break a fall beneath the roof as it was being moved. The apprentice had no training in the use of roof ladders. The roofing company was fined £2,000 and ordered to pay £1,500 in costs. Regulation 4 indicates that every employer “shall ensure that work at height is (a) properly planned; (b) appropriately supervised; and (c) carried out in a manner which is so far as reasonably practicable.”
Two companies in Cornwall were fined after a worker fell through a roof light and was injured in 2008. The first company had been contracted to repair the second company’s storm damaged roofs at their premises. No edge protection or appropriate crawling boards were used and no measures were put in place to prevent falls. The contractor’s employee fell five metres through a fragile roof light. The contractors pled guilty to breaching Sections 2(1)(a) and 3(1) of the 1974 Act by failing to ensure the safety of employees by not providing a safe system for working on a roof and were fined £4,000 and ordered to pay costs of over £1,500. The second company pled guilty to a breach of Section 3(1) of the 1974 Act by failing to ensure that work at height was properly planned and appropriately supervised and was fined £1,500 and ordered to pay costs of just over £1,500.
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Damages for Personal injuries
We take a look at a few decisions in which damages for solatium (general damages) have been awarded.
Mr Leggat, an aircraft engineer, aged 51 at the time of proof (trial), was injured in an accident when a car collided with his motorcycle. Liability was admitted. Mr Leggat suffered an unstable pelvic fracture and multiple fractures and dislocation to both hands, including his thumbs. He had to undergo several surgical procedures and a massive blood transfusion. 3 years after the accident, he still suffered regular pelvic and hand pain. He developed arthritis in his hands and was likely to need further hand surgery in the future. He was self employed and had to spend 12 hours at a time working with tools and using his hands for nearly all of that period. The judge accepted medical evidence that, on balance, Mr Leggat would have to give up his current line of work within 5 years because of the injuries to his hands. The aim of any further surgery would be to relieve pain and there was no question of normal function being restored.
The court awarded £55,000 for solatium (general damages), with two-thirds attributed to the past.
Leggat v Ralph
Mr Hunter, a self employed delivery driver aged 24 at proof (trial), suffered whiplash injuries in a road accident. He suffered pain around his cervical spine for about 6 weeks after the accident and had to take pain killers daily. After that, he experienced sporadic discomfort and this gradually resolved over the following 4 months. Before the accident, Mr Hunter had played golf several times a week, as well as football and tennis. He had been unable to pursue these sports for several months after the accident. The Sheriff awarded solatium (general damages) of £3,000. He took into account the fact that Mr Hunter was a very keen sportsman and, in particular, played golf to a very high standard. On that basis, the accident affected him more than a similar accident would have affected a person with a more sedentary lifestyle.
Hunter v Niemiec (unreported)
Mr Lyons, a supermarket worker, aged 39 at proof (trial), raised an action for damages against his employers after he suffered lower back injuries at work. Morrisons accepted liability but there was a dispute about Mr Lyons’ claim for solatium (general damages). He had been injured on two occasions in 2005. As a result of those injuries, he was no longer able to take part in bodybuilding activities on a regular basis as he had done before the accident. He had complained of back pain in 2003 and an x-ray had revealed early degenerative changes in his spine. Mr Lyons had also complained of lower back pain two weeks before the first accident. A consultant orthopaedic surgeon expressed the view that the accidents could have aggravated the claimant’s pre existing degenerative condition and that his weightlifting could have brought on similar symptoms. Morrisons argued that, if the Court accepted that evidence, only a nominal award should be made as Mr Lyons’ symptoms could have been caused by his bodybuilding activities even if he had not been involved in accidents at work. The Court awarded £5,000 as solatium (general damages). There was not enough evidence that Mr Lyons’ weightlifting had caused any material problems in the past, or that it would have done so in early 2006 or after that. Mr Lyons had been bodybuilding for many years without any apparent problems and there was no reason to decide that this regular, controlled and familiar exercise regime would have caused the same sort of chronic low back pain that Mr Lyons experienced after the accident. Solatium was assessed on the basis of mild chronic mechanical lower back pain. Although this was troublesome and sufficient to stop Mr Lyons bodybuilding, it was not so severe as to interfere with his demanding physical employment to any significant extent.
Lyons v WM Morrison Supermarkets PLC
No vicarious liability for workplace prank
In a recent appeal to the Inner House of the Court of Session, the Court considered the issue of when an employer might be held responsible for deliberate actions of an employee.
Miss Wilson brought a claim against her employers, Exel UK Limited, after she was injured as a result a colleague’s prank. While at work, her supervisor had grabbed Miss Wilson’s pony tail as she sat typing and had pulled her head back as far as it would go. She was later diagnosed with a hyper extension injury and was off work for several months.
The three judges who considered the appeal decided that Miss Wilson’s colleague had not been acting in the course of his employment and, on that basis, her employers were not vicariously liable for his actions. They confirmed that the question of whether or not employers should be vicariously liable was to be determined by deciding “whether the actions are so closely connected with the employment that it would be fair and just to find the employer liable”. In this case, the fact that the prank had been carried out on the employers’ premises and during work hours was not enough to make them vicariously liable for the actions of Miss Wilson’s colleague. There was no connection between his duties as a supervisor and his actions.
The Court accepted that the situations in which an employer might be found vicariously liable for an employee’s deliberate actions are not closed. Much depends on the closeness of the connection between the employee’s duties and his wrongdoing. The connection has to be sufficiently close that it becomes “fair and reasonable” for the employer to be found vicariously liable. So, for example, if a bouncer at a nightclub is over zealous in dealing with club goers and injures one of them, his employer may well be found vicariously liable.
There are a number of cases in which it has been decided that when one employee injures another at work while involved in horseplay, the employer will not be liable, the decision in Wilson is a useful one as it looks at this area in detail and provides clear guidance on the vicarious liability in these circumstances.
Wilson v Exel UK Ltd
Consultation on Damages for Wrongful Death
At the beginning of July, the Scottish Government launched a consultation to consider the Scottish Law Commission’s (SLC) recommendations in relation to damages for wrongful death and to make sure that any proposed legislation altering the law in this area will be effective. The proposed Damages for Wrongful Death (Scotland) Bill is intended to clarify and simplify the provisions of the Damages (Scotland) Act 1976 to take into account modern lifestyles and family arrangements. Responses to the Consultation were to be submitted by 27 August 2010. The purpose of the consultation process is to allow those who want to express an opinion about the bill and reforms to do so. The consultation includes specific questions for those interested to answer.
Click here to view the consultation paper.
The Scottish Government aims to issue a report on the consultation process by late autumn 2010 and it is anticipated that legislation to implement the Law Commission’s recommendations (amended as appropriate) will follow.
The SLC report was published in 2008 after the Scottish Ministers invited the SLC “to consider the law relating to damages recoverable in respect of deaths caused by personal injury and the damages recoverable by relatives of an injured person; and to make appropriate recommendations for reform”. The Report recommended a number of reforms and the introduction of a Damages (Scotland) Bill to modernise and simplify the existing provisions in this area.
For details of the main recommendations click here
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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