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Health and safety general definitions (2)

 Health and safety: general definitions (2)

IN THE COURSE OF EMPLOYMENT

Work away from employer’s premises

General Cleaning Contractors Ltd v Christmas (1952)

C was cleaning a sash window at premises away from the employer’s office. The top frame of the sash window slipped downwards, trapping his fingers. He let go of his had hold on the lower frame and fell from the window sill on which he was standing. He was injured and claimed compensation from his employer.

The employer was found liable for its failure to implement a safe system of work even though the premises at which the work was done was some distance from its office.

Disobeying instructions

National Coal Board v England (1954)

E was a coal miner. Against clear instructions and statutory regulations he assisted a shotsman to set up shot blasting. He coupled up wires which were part of the detonator mechanism. If he had been obeying his instructions he would have been well out of the way. The employer did not know that miners often helped a shotsman in this way. The shotsman thought that E had moved to a safe place. He detonated the explosive. E was very close to the explosion and was injured. He claimed compensation on the basis of the employer’s liability for the negligence of a co-worker. The employer’s defence was that E had acted entirely outside the scope of his employment in helping the shotfirer and that this had been in direct disobedience of working instructions and an infringement of coal mining legislation. This put E’s act outside the scope of his employment.

The House of Lords disagreed. E had been carrying out the work of a miner but doing it in a wrong way. It could not be said that in acting against instructions he was engaged in work totally outside his employment. The employer was liable but E’s compensation was reduced because of his contributory negligence.

Injury during journey from home to appointment

Nancollas v Insurance Officer (1985)

N was a disablement resettlement officer. He had to cover a wide area. On one day he had to travel from his usual office in Worthing to the Guildford office for a case conference about a disabled man. At the conference it was decided that he should interview the man at Aldershot on the following day. He drove directly from his home to Aldershot. During this journey he was involved in an accident and suffered neck injuries. He claimed industrial injury benefit. His entitlement depended on whether he was acting in the course of his employment at the time of the accident.

The Court of Appeal made the following points:

  • Each case depended on its own facts. There were no hard and fast rules.
  • Earlier cases which concentrated on the question of whether a worker was carrying out his employer’s instructions at the time had been, to a large extent, overtaken by developments in society generally. They had been decided at a time when employees were truly servants of their master.
  • The employment relationship was now different. It was no longer based on orders and instructions, but on requests and information. Contractual rights and duties were supplemented by mutual expectations of co-operation.
  • In older cases it had been held that employees were not in the course of employment while on their way to work from home. But it was a totally different case to be on the way from home to an appointment away from the office.
  • In a true sense, the road was the place of work and the employee was in the course of his employment while driving to his employment.
  • It would be a nonsense to allow a claim from someone who was injured on these facts while on his way from his normal office, but to disallow a claim just because the person had chosen to go to his appointment straight from home.     

Travelling between two places of work

Smith v Stages and Darlington Insulation Co Ltd (1988)

M was employed as a lagger at a power station. He and S, a colleague, were told to work for a week at another power station. They travelled to the other power station in S’s car. They worked a total of 19 hours and had no sleep. During the journey home, because of S’s fatigue, an accident happened which caused M to suffer serious injuries. He did not fully recover and died two years later. Proceedings were brought against S. It emerged that S had no insurance and the claim was amended to include the employer as defendant. It was alleged that S was driving the car either as the agent of the employer or in the course of his employment. At first instance, the court found that the driving had not been done in the course of S’s employment. M’s widow appealed to the Court of Appeal.

The Court of Appeal found that the journey had been made in the course of employment. The employer had authorised S to drive. The employer appealed to the House of Lords.

The Lords dismissed the appeal and made the following points:

  • An employee travelling from his ordinary residence to his regular place of work, by whatever means of transport, even if it was provided by his employer, is not acting in the course of his employment. But if he is obliged by contract to use his employer’s transport, then he is acting in the course of his employment while doing so.
  • Travelling in the employer’s time between workplaces or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces, will be in the course of his employment.
  • Receipt of wages will indicate that an employee is travelling in his employer’s time and for his benefit, and is acting in the course of his employment. In such a case, the fact that the employee might have discretion as to the mode and time of travelling, will not take the journey out of the course of employment.
  • An employee travelling in the employer’s time from his ordinary residence to a workplace other than his regular workplace, or in the course of  peripatetic occupation, or to the scene of an emergency, will be acting in the course of his employment.
  • A deviation from or interruption of a journey undertaken in the course of employment, unless merely incidental to the journey, will for the time being (including overnight interruption) take the employee out of the course of his employment.
  • Return journeys are to be treated on the same footing as outward journeys.

Police officer injured while playing football

Faulkner v Chief Adjudication Officer (1994)

F, a police officer, claimed disablement benefit for an injury suffered while he was playing football for a police football club. He argued that he had sustained personal injury arising out of and in the course of his employment. His claim was rejected on the basis that he had not been doing his job at the time of the injury. F appealed to the Court of Appeal on the ground that the role of the police had changed and that it could no longer be said that football amounted to recreation.

The appeal was dismissed. The question could not be answered by considering whether an injured person had been doing something reasonably incidental to his work. It was important to look at the factual picture as a whole and to reject any approach based on the fallacious concept that any one factor was conclusive.

MANUAL LABOUR

Definition

J & F Stone Lighting and Radio Ltd v Haygarth (1966)

H was employed as a television and radio repair engineer. Most of his work involved the repair or replacement of parts or adjustment of sets. The issue in the case was whether this amounted to “manual labour”.

The House of Lords ruled as follows:

  • The test of manual labour did not rely on physical strength. It was not a question of arduous work.
  • The whole character of the work had to be looked at. The test was whether, on the whole, the use of hands was a substantial part of the work. Where work involved partly manual and partly intellectual work, it had to be analysed to see which was incidental to the other. If the manual work was ancillary or incidental to the intellectual work, then it would nit be “manual labour”. But if the manual aspect was predominant, then it would qualify as manual labour.
  • In the present case, H’s work was predominantly a routine manual use of tools on work which was familiar to the engineer. It was therefore “manual labour”.      

Health and safety: general definitions

Health and safety cases: General health and safety terms (1)

ACCIDENT

Back injury caused by repeated lifting of patients

Mullen v Secretary of State for Work and Pensions (2002)

M was employed as an assistant care officer in a home for the elderly. As a result of the repeated lifting of patients over a number of years, she suffered from back pain which made her unfit for work. She applied for industrial injuries benefit. An adjudication officer and a social security appeal tribunal ruled that her injury had resulted from a gradual process and was not an “accident”. She applied to a Scottish court for leave to appeal against the decision. The court ruled in her favour and stated that a back injury sustained while handling a patient was an “accident”. Where there was a series of accidents, an applicant was not disqualified only because she could not identify which one caused or contributed to the condition. 

Deep vein thrombosis

In re Deep Vein Thrombosis and Air Travel Group Litigation (2003

A total of 55 passengers brought a group litigation claim against a number of international air carriers. Each claimant had suffered deep vein thrombosis (DVT) which resulted in serious injury or death, allegedly caused by cramped seating conditions and a failure to warn of the danger posed by the flight or to advise of the appropriate steps to minimise or eliminate the dangers. The High Court made the following points:
* A culpable act or omission by an air carrier in failing to warn its passengers of the risk of DVT and in failing to provide less cramped seating, was not an “accident”.

  • “Accident” means an unexpected or unusual event or happening. In the present case, each flight was normal and unremarkable and complied with all applicable aviation regulations.

The claimants appealed to the Court of Appeal. That court dismissed the appeal and stated the following:

  •  A non-event could not be an “accident”.
  • The alleged failure of international air carriers to warn passengers against the risk of DVT as a result of normal flights operated under normal procedures and conditions, or to advise passengers how to minimise that risk, and the provision of cramped seating which was an integral and permanent feature of aircraft, were not events which were capable of constituting an “accident”.
  • Inaction itself could never properly be described as an accident. It was not an event, it was a non-event, the antithesis of an accident.

Fire officer attending incidents

Chief Adjudication Officer v Faulds (2000)

F, a former senior fire officer, suffered from post-traumatic stress disorder which arose from his work. This involved a number of years attending road accidents, air crashes and fires. F was awarded industrial injuries benefit on the basis that he had suffered personal injury by an accident arising out of and in the course of his employment. The Chief Adjudication Officer appealed against the award, arguing that F’s condition had not been caused by an “accident”. The matter eventually reached the House of Lords which ruled that the decision to award benefit should be set aside. It made the following points:

  • “Accident” means “an unlooked-for mishap or an untoward event which is not expected or designed. It may also mean “any unintended an unexpected loss or hurt”.
  • F had not been subject to “accidents” despite having been exposed to great stress in attending incidents. He was required to attend such incidents in the course of his employment.

BUILDING

Definition

Elms v Foster Wheeler Ltd (1954)

FW Ltd was under contract to install four steam powered electrical generators in a power station which was under construction. The shell of the building had been constructed. FW’s work was to complete the inner parts. This involved not only putting in the generating machinery but also providing all the ancillary pipework, floors, galleries and steel stairways around the generating plant. E, an employee of the company, fell from some steel joisting. If this had been a “building operation”, scaffold boards should have been provided. E claimed compensation for breach of statutory duty on the basis that the whole work was a building operation.

The court ruled that there is no hard and fast definition of “building” or “building operation”. It is clear that the word “building” encompasses a wide range of structures. Each case has to be judged on its own facts. But an employee who is contributing to, or taking part in, the construction of part of a building is engaged in building operations.

Open-air structures without roof or catwalk

McGuire v Power Gas Corpn Ltd (1961)

P Ltd was building a plant for the conversion of oil to gas by a catalytic process. The plant covered an area of 80 square feet and was 30 feet high. Besides the actual containers in which the conversion took place, the structure supported stairs, gangways, catwalks, ladders, stanchions and pipes. There was no roof and it had no sides. It did not resemble a conventional building in any way. M fell from the structure and claimed compensation for his injuries.

The court made the following points:

  • A structure containing plant may still be a building notwithstanding that it is an open air structure without roof or walls. The word “building” is not restricted to conventional forms of building.

DETRIMENT

After termination of employment

Fadipe v Reed Nursing Personnel (2005)

F raised health and safety concerns during his employment with R. He was dismissed and when he applied for a new job, R supplied a reference which stated that although F’s work had been satisfactory, it would not give him any further work. F complained to an employment tribunal that R had subjected him to a detriment for having raised health and safety concerns. His complaint was rejected on the basis that the alleged detriment had occurred after the end of F’s employment with R. F appealed on the ground that the relevant statutory protection extended to former employees.

The appeal was dismissed. A person who had raised health and safety concerns while still an employee was not protected from the former employer’s detrimental acts committed after the employee had ceased to be employed.

IMPRACTICABLE

Definition

Jayne v National Coal Board (1963)

Safety measures in mining regulations were subject to the qualification that a lesser standard was acceptable if the normally required standard was “impracticable”.

A miner had been injured during underground shot firing. It was argued that, in contravention of the regulations, the shot firer had not personally checked that all men were clear of the danger areas. In defence of the employer it was argued that this was “impracticable”.

The court found that where legislation is made subject to the qualification that a lower standard is acceptable when circumstances make normal compliance “impracticable”, the employer is under a severe burden of proof. The word “impracticable” does not mean “physically impossible” but it does pose a high standard of proof that there were very good reasons for not taking precautions.

IN THE COURSE OF EMPLOYMENT

Tanker driver throwing down lighted match

Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942)

A petrol tanker driver lit a cigarette and threw the lighted match on the ground near the nozzle of the hose from which petrol was being pumped. The petrol ignited and caused a serious explosion. It was argued that he had not been acting n the course of his employment when he threw down the match. The House of Lords disagreed and ruled that he had been acting in the course of his employment.

Employee slipping on lubricant

Davidson v Handley Page Ltd (1945)

Just before her lunch break Ms D went to a water tap to clean her teacup. In the vicinity was a tank which contained lubricant for lathes. There were slatted duckboards on the floor. The area was slippery because of spillage of lubricant on the duckboards. As she was reaching for the tap, Ms D slipped and was injured. She claimed damages from her employer, alleging negligence arising from its failure to keep the area free from slippery substances. The employer argued that its liability ceased the moment an employee stopped actual work. It accepted liability for injuries which occurred while the employee was carrying out the employer’s work, it denied liability for any injuries which occurred while the employee was not working.

The court commented that the defence, if accepted, would give rise to extraordinary results. For example, if two employees were coming down from a scaffold, one to get a bag of nails and the other to go to the latrines, under this argument the one going to the latrines would not be protected. This was unacceptable to the common law.

The employer’s duty to take steps for the safety of its employees applies both during periods of actual work and while employees are carrying on activities incidental to their work.  

These case summaries have been prepared by employment lawyers based in Clifton, Bristol.


Floors, passages and stairs: health and safety cases

Health and safety cases: floors, passages and stairs

This compilation of interesting cases dealing with health and safety aspects of floors, passages and stairs, has been compiled by employment lawyers based in Clifton, Bristol.

DEFINITION OF FLOOR

Sand base of foundry

Harrison v Metropolitan-Vickers Electrical Co Ltd (1954)

H worked in a foundry. The foundry base was made of casting sand. Pits or holes were prepared in the floor to form moulds for castings. These were filled in after use and then redug as appropriate. Iron sheet walkways were laid on the sand to give access for the carrying of molten metal to the moulds. Molten metal was carried by two men each holding one end of a pole which held a ladle. The pole was about 7 feet long. Having poured the molten metal into a mould H, on one end of the pole, was walking backwards along a metal gangway when he misjudged a corner and fell into a casting hole. Surplus molten metal splashed up from the mould he was helping to carry and landed on his head. He claimed compensation for his injuries.

The issue in the case was whether the sand base of the foundry was a “floor”. The employer argued that it was not a floor because hole were dug in it on an ad hoc basis for the purpose of casting and that a separate system of metal walkways were the floor.

The court found that the sand base was the floor and the pit into which H fell was an unfenced opening. The employer was liable for breach of statutory duty. The base had many uses. Castings and other materials were stored on it. What were they standing on if not the floor?

Planks laid on high-level gantry

Tate v Swan Hunter & Wigham Richardson (1958)

T fell through an opening between planks laid on an 80 foot gantry. The planks were placed above steelwork so that workers could more easily work about. The planks were moveable and did not form a complete platform. Holes were left for ladders to emerge from below. T fell though a hole and suffered fatal injuries. His dependant mother claimed compensation for breach of statutory duty, alleging that the ladder hole was an opening in a floor which should have been fenced.

The court found that the planked area was not a “floor”. The extent of the word “floor” was very difficult to define but it did connote an area, within walls, which was indoors on which people walked or stood.

Slippery duckboard

Harper v Mander & Germain Ltd (1992)

H, an experienced marble polisher, slipped on a duckboard at a marble processing factory. The duckboard was slippery because paste had been allowed to accumulate on it. He claimed compensation for his injuries.

The Court of Appeal held that once it was shown that the accident had been caused by the accumulation of paste on the duckboard, the employer was then at first sight in breach of statutory duty, unless it could be shown that it was not reasonably practicable to keep the duckboard free at all times from a slippery surface.

DEFINITION OF PASSAGE

Passageway to canteen

Davies v De Havilland Aircraft Co Ltd (1950)

D was on his way from the shop floor to the works canteen when he slipped on the floor, fell among some machine tools and was injured. From the evidence it seemed that he had slipped in a patch of oily water held in a slight depression on the floor. Apart from this the floor was of sound construction. D claimed that the passageway was a means of access to his place of work in the wider sense and that it was unsafe. He clamed compensation from his employer.

It was argued on behalf of D that if he had been on his way from the canteen back to his workplace, there would be no doubt that the employer was liable. It was illogical to distinguish between going from a canteen rather than towards it when an injury could happen at the very same spot on the passageway.

The High Court did not accept this argument. It ruled that a canteen was not part of the workplace.

Outdoor road on factory premises

Thomson v Fisher & Ludlow Ltd (1968)

Ms Thornton, a cleaner, was walking to work along a roadway within factory premises at 6.45 a.m. when, in the half light, she stumbled on a coil of wire and injured herself. She clamed compensation from her employer.

The court found that a 30 foot wide roadway with a pavement running its full length could not reasonably be described as a passage. A minority of the judges stated that the road was a passage because it was a route by which people went on foot.

Definition of obstruction

Jenkins v Allied Ironfounders Ltd (1969)

J’s work involved moving freshly moulded cast iron pipes to another section of the factory for finishing. He would collect them from a pile and, together with a colleague, use a small vehicle to transport them. The pipes of the pile, having been only cast on the previous day, still had substantial amounts of solidified casting sand on them. Fins of surplus metal also protruded from the pipes. These fins sometimes fell off in the process of placing the pipes on the pile and then removing them again. They were usually collected and recycled into the smelting process.

After J had cleared one pile of castings he failed to notice that one of these fins, about six inches long, was half buried in the sand floor. He tripped on this and injured his back. He claimed compensation from his employer on the basis that the half-buried fin was an obstruction and it was reasonably practicable to have moved it.

The House of Lords ruled that an obstruction is something on a floor which has no business to be there and which is a source of risk to persons ordinarily using the floor. It does not include objects which are easily seen and put on the floor during the normal course of operations. A heap of components deliberately gathered in one place pending redistribution is not an obstruction. The word “obstruction” is clearly not intended to include easily visible objects properly put on the floor in the course of a proper system of work.

Screw on floor

Gillies v Glynwed Foundries (1977)

G was employed in a factory. His duties included moving loads on a barrow. The wheel of the barrow struck a discarded screw. The barrow swerved and G injured his back. He claimed compensation from his employer.

The claim failed. The employer had a system for cleaning the floor. Although the screw had been an obstruction, it would not have been reasonably practicable to take steps additional to the existing satisfactory system.

Bolt on floor: foreseeability

Paterson v Lothian Regional Council (1992)

P was employed by LRC as a youth training supervisor. He suffered an injury at work when he tripped over a door bolt, which had allegedly fallen from a door, and fell down a flight of steps. He claimed compensation from his employers for breach of statutory duty. At the trial, conflicting evidence was given as to whether the fall had been caused by the bolt and whether the bolt had fallen from the door. At first instance the judge ruled that he was satisfied that, on the balance of probabilities, it had fallen from the door and caused the injury. The bolt was an obstruction. The incident had been the fault of the employer for failing to take reasonable steps to make the bolt secure, despite knowing that it had fallen off on a number of previous occasions. The concept of “obstruction” involved an element of foreseeability.

Obstruction deliberately placed

Erskine v Falcon Catering Equipment Ltd (1997)

E, an employee of F, was injured when he tripped over pieces of wood in F’s store. The employer argued that the pieces of wood did not amount to an obstruction because they had been clearly visible and deliberately placed in the middle of the floor so as not to obstruct access to desks around the room. The needs of other employees had been duly considered. The Scottish court decided that the wood had been placed in the middle of the floor on occasions, but not as part of a system of work. There had been a clear risk to persons ordinarily using the floor. The wood had been an obstruction.

Properly maintained floor

Slippery surface

Latimer v AEC (1953)

L used a hand trolley to carry bins of handbrake components from one location in a factory to another. An exceptionally severe rainstorm had caused flooding in the factory. Floodwater covered a substantial part of the factory floor. This water became contaminated with cooling oil used on lathes in the factory. When the floodwater receded, a slippery oily film was left on the floor. The employer kept a quantity of sawdust for spillages but there was not enough to cover all the slippery area.

L was trying to lift a bin of components which weighed approximately 200 kg. He manoeuvred the platform part of the trolley under the bin, put his right foot on the trolley axle and began to tilt the bin. His foot slipped on the oily surface and the full weight of the trolley fell onto him. He claimed compensation for his injuries on the basis that the employer had failed to keep the floors properly maintained.

The House of Lords ruled as follows:

  • In order for a floor to be properly maintained, its structure must be sound and must not have deteriorated to an excessive degree. Short-term obstructions on the floor, or exceptional conditions of the surface due to some unexpected outside interference are not included.
  • A floor might be improperly maintained if it was so highly waxed as to be slippery, for here the waxed surface is a long-term condition. But temporary incursion onto the surface of a floor which was otherwise perfectly sound did not cause it to be improperly maintained.

Equipment: cases on the meaning of the word

Health and safety: Equipment cases

Employment lawyers based in Clifton, Bristol, have researched the following cases dealing with the meaning of equipment, which it is hoped will be of interest.

Whether “equipment” includes a ship

Coltman v Bibby Tankers Ltd (1987)

The Derbyshire, a ship owned by BT Ltd, sank off the coast of Japan with the loss of all hands. The personal representatives of a crew member brought proceedings against BT Ltd, alleging that the death of the deceased had been caused by defects in the ship, which was “equipment” for the purposes of the Employers’ Liability (Defective Equipment) Act 1969. At first instance, this was accepted by the court. BT Ltd appealed and the appeal was allowed by the Court of Appeal. The personal representatives appealed to the House of Lords.

The Lords made the following points:

  • In the context of the 1969 Act, a ship was part of the equipment of the business owner.
  • The exclusion of the ship from the definition of equipment would produce the absurd position that the employer was liable for injury caused by defective machinery on the ship, but not if caused by anything which could properly be described as part of the ship itself. This would raise almost insoluble problems of demarcation.
  • The purpose of the 1969 Act was manifestly to saddle the employer with liability for defective plant of every sort with which the employee was compelled to work.
  • There was no ground for excluding particular types of chattel merely on the ground of their size or the element upon which they were designed to operate.

Whether a flagstone is “equipment”

Knowles v Liverpool City Council (1993)

K was injured at work when he handled a flagstone which broke. He claimed compensation from his employers.

The Court of Appeal ruled that a flagstone counted as equipment for the purposes of the 1969 Act and the employer was liable. The court preferred the broader interpretation of the wording of the Act. In the present case this meant that the acknowledged purpose of the legislation should be followed. This purpose was to protect employees from falling between two stools in circumstances where, the employer having exercised all proper care and having relied upon a reputable suppler, had nevertheless exposed an employee to dangerous material which was dangerous through the fault of a third party.

The employer’s appeal to the House of Lords was dismissed. The wording of the 1969 Act should be widely construed to include every article of whatever kind supplied by the employer for the purposes of his business.

Wooden packaging equipment

Davison v AR Allen (t/a Allen’s Transport) (1998)

D was a heavy goods driver. He was driving a vehicle loaded with graphite electrodes which had been packed in Japan. The load shifted and the vehicle overturned on a motorway sliproad. D sought to prove that responsibility for this lay with his employer. Neither D nor his employer knew or could have known how the electrodes had been packed or how secure they were.

The county court ruled that the employer was responsible for the following reasons:

  • The wooden packaging around the electrodes was inadequate because of the negligence of an unidentified party.
  • The packaging was “equipment” for the purposes of the 1969 Act because it had been supplied to D for the purpose of his work, to transport the load from one place to another. Without the packaging, D would not have been able to do her job. The equipment was therefore defective.

Fault of third party

Edwards v Butlins Ltd (1998)

E suffered an injury at work when a calorifier exploded. He claimed compensation from his employer under the 1969 Act on the basis that the reason for the explosion had been the fact that a pressure release valve had been screwed down too tightly by an employee of the supplier.

The Scottish court found that there had been an admission by the employer that there was a defect in equipment which had been caused by the fault of a third party. This rendered the employers liable for the third party’s fault.

Angle iron as makeshift tool

Couzens v T McGee & Co Ltd (2009)

In 2003 C, an employee of M, was driving a tipper truck in the course of his employment. A piece of angle iron, which he used as a makeshift tool and kept in the pocket of his driver’s door, caught his trouser leg. He was not able to move his right leg from the accelerator to the brake. He was injured in the resulting accident. At first instance the court found that the angle iron was “equipment”. On appeal to the Court of Appeal by the employer, the appeal was dismissed.

The Court of Appeal held that an item of equipment used at work but not supplied to an employee by the employer was not work equipment unless the employer expressly or impliedly permitted, or was deemed to have permitted, its use. Deemed permission can be inferred where the employer ought to have realised that an item was being used, but apparently did not and therefore did nothing to stop it. On the facts, the angle iron was not “equipment”.

Drinks vending machine

Given v James Watt College (2007)

G was employed by J as a kitchen assistant. In May 2003 she was standing near a drinks vending machine at work when it malfunctioned. The machine started hissing loudly and emitting steam. It then emitted a flash in her direction. She was frightened and fell heavily on the floor, suffering injuries to her right hip and wrist. She claimed compensation from her employer.

The Scottish court found that the machine was provided by the employer for use by canteen employees. It was fully operational and available for use at the material time, and was “equipment”.


Compensation in health and safety cases

Health and Safety case law: damages

Employment lawyers in Clifton, Bristol, have summarised the leading cases in this area as follows:

Exacerbation of pre-existing condition

Simmons v British Steel plc (2003)

S was employed by B as a burner in a steelworks. He fell from a table in the workplace and suffered a severe blow to his head. This resulted in his ear suppurating, blurred vision and headaches. He claimed that the incident had exacerbated a pre-existing skin condition and had caused mental deterioration including depression. S had not worked since the accident and claimed compensation from B. At first instance, the Scottish court ruled that B had been at fault but that, in relation to causation, S’s conditions had probably been caused by anger at B’s treatment of him after the incident. Compensation was therefore limited to the immediate physical consequences of the incident. S appealed.

The decision on appeal was as follows:

  • The appeal was allowed.
  • The real issue related to the conclusions to be drawn from evidence which was either undisputed or plainly established.
  • The reasons given by the court below were unsatisfactory. The court had not clearly explained why S had been unable to prove that his condition was caused by the incident.
  • The evidence, looked at as a whole, presented a coherent picture of a causal link between the incident and S’s condition in both psychiatric and dermatological aspects.
  • B had to take S as it found him, despite the fact that a more psychologically robust individual might have recovered from the incident, despite displaying a dermatological or psychiatric condition.

This case illustrates the importance of the concept of causation in relation to claims for compensation for injuries caused in the workplace. Claimants who allege negligence on the part of their employers must establish the existence of a duty of care, breach of that duty, resulting damage and that the damage was in fact caused by the breach of duty. In most cases, this will be self-evident.

Mistake as to identity of employer

Cressey v E Timm & Sons Ltd (2005)

C, a forklift truck driver, was injured at work in December 2000 when a pallet struck his leg, fracturing it. His employer was E Timm & Son Holdings Ltd (Holdings) but his payslips were in the name of an associate company, E Timm & Son Ltd (Ltd).

By March 2001 C’s solicitors had sent a letter of claim to Ltd, which were thought to be C’s employers. The company’s insurers replied on April 30, 2001, identifying their insured as Holding.

In April 2001 C was made redundant by a letter in the name of Ltd. At that time, both C and his solicitors continued to think that Ltd was his employer. On March 30, 2004, C’s solicitors brought proceedings naming both Holding and Ltd as defendants.

The issue was whether the date of knowledge when C first had knowledge of the identity of his employer was the date of the workplace accident or the date when he first became aware of the existence of Holding. This was April 30, 2001, and meant that the three-year limitation period still had one month to run.

The judgment of the Court of Appeal, in summary, was as follows:

  • In most cases of an accident at work, the employee would then and there have knowledge of the employer’s identity.
  • In a minority of cases where the identity of the employer was uncertain, or wrongly stated to the employee as in the present case, the date of knowledge would be postponed for so long as it reasonably took to make and complete appropriate inquiries.
  • There is no need, for there to be a lack of relevant knowledge, for the employer to be in breach of duty or deliberately attempting to deceive the employee or keeping him in the dark. It is sufficient that the employee is deprived of the knowledge which he needs by being misinformed.
  • In the present case, C was misinformed and he had no reason to think that any other company than Ltd could be his employer until, at the earliest, April 30, 2001.

Credibility of claimant

Owens v Redpath Offshore (South) Ltd (1998)

O was awarded £200,000 damages against R Ltd as the result of an accident at work when he struck his head on scaffolding, causing a neck injury. R Ltd appealed, arguing that O had told so many lies in his CV and in job applications that his claim for compensation should have been dismissed. R Ltd also sought to bring fresh evidence that O continued to use false CVs.

The appeal was dismissed. The judge at first instance had known about O’s use of false CVs but the judge had relied on contemporary reporting of O’s accident and on the evidence of a colleague.

The work which O had obtained since the accident was of the type which the judge had predicted. It was not the heavy fixing work which he had previously done.

Loss of congenial employment

Champion v London Fire and Civil Defence Authority (1990)

C, a firefighter, fractured his wrist in a fall in the kitchen of Surbiton fire station. A colleague had dropped some eggs and C slipped on them. As a result of the injury he was discharged from the fire service. He claimed compensation from his employers for loss of congenial employment because he had lost job satisfaction as a result of his discharge from the fire service.

The claim succeeded. C had suffered a significant loss of job satisfaction and should be awarded damages for such loss.  

PROVISIONAL DAMAGES

Chance of condition worsening

A provisional award of damages can be made where the parties agree that such an award is appropriate and that there is a chance of the claimant’s condition worsening in the future.

Hurditch v Sheffield Health Authority (1988)  

H was exposed to asbestos at work during two periods. The first was during employment by the Royal Navy between 1957 and 1972. The second was when employed by SHA. It was accepted that his condition, asbestosis, was mainly due to the first period but was also referable to his current employment. The parties did not agree as to the type of asbestos to which H had been exposed, or the risk of his condition worsening. At first instance the court refused to make a provisional award of damages. H appealed to the Court of Appeal.

That Court stated that there should be judgment for H of £2500 as provisional damages with an order, unlimited as to time, providing for him to seek further damages in relation to a serious deterioration in his condition. The fact that not all matters had been agreed between the parties did not prevent the court making the provisional award.

Risk of serious further deterioration

Prentice v William Thyne Ltd (1989)

A 30 year old forklift truck driver suffered a fracture of his femur with consequent restrictions on movement of his hip joint and a possible deterioration in his condition.

The Scottish court found as follows:

  • The worsening of the claimant’s condition might be a certainty rather than a risk, but his condition already existed. Any further worsening would be difficult to categorise as a serious deterioration and thus the action was not a proper one for a provisional award.
  • If the claimant was going to develop serious deterioration in his right hip, then that might be said to be a risk that such would happen.
  • The deterioration in this case would be a worsening of the condition from which the claimant currently suffered and not the development of some new condition.

TRIAL BY JURY

Trial by jury of a personal injury claim may be appropriate in an exceptional case where, for example, personal injuries have resulted from conduct on the part of those deliberately abusing their authority, and there is a claim for exemplary damages, that is, damages awarded to punish a defendant rather than to compensate for damage actually suffered/

H v Ministry of Defence (1991)

H was a serviceman who suffered from an abnormality of the penis. He sought advice from the MOD’s medical services. As a result of investigative procedures in hospital his penis became infected and had to be partially amputated. He claimed compensation from the MOD and an order that the action should be tried by a judge and jury. At first instance it was ruled that there was a judicial discretion to order jury trials in personal injury actions in exceptional cases. The MOD appealed to the Court of Appeal.

That Court allowed the appeal. It stated that trial by jury was inappropriate in personal injury cases except in exceptional circumstances. Where compensatory damages were to be assessed, such assessment was made by reference to conventional scales known to a judge but not a jury. Although, in the present case, the claimant’s injuries were unusual and traumatic, assessment of damages should nevertheless be in conformity with the conventional scales.

Further, in retaining a judicial discretion for exceptional cases, Parliament was not to be taken as having necessarily contemplated that such cases would arise in the context of personal injury actions. The claim was not exceptional so as to justify an order for trial by judge and jury.