July 2009
Introduction
Welcome to the July edition of BLM’s Disease review e-bulletin.
The Court of Appeal’s decision in Baker v Quantum Clothing Group, a noise-induced hearing loss
case concerning the textile industry, has significant ramifications for NIHL claims in general. The
High Court has confirmed that the test for a claimant’s date of knowledge under the Limitation Act
1980 is objective and that a defendant, when trying to persuade the court not to exercise its
section 33 discretion, should seek to show the court actual prejudice caused by the delay.
The High Court has also emphasised that for conduct to amount to harassment under the
Protection from Harassment Act 1997, it must be serious enough to warrant a criminal sanction.
In a work-related stress case, the High Court has indicated that a breach of the Working Time
Regulations offers little assistance to claimants – foreseeability remains paramount. In Smith v
Northamptonshire County Council, the House of Lords has confirmed that the Provision and Use
of Work Equipment Regulations apply to work equipment which is incorporated into and adopted
as part of the employer’s business or undertaking. Smith limits the scope of the Regulations and
suggests that PUWER will not apply to work equipment over which an employer has no control.
Contents
Noise-induced hearing loss
Limitation
Harassment
Stress
PUWER
Carpal tunnel syndrome
Ionising radiation
Featured articles
News and press
Editors
Nick Pargeter
Partner, BLM London
nick.pargeter@blm-law.com
Brian Goodwin
Partner, BLM Liverpool
brian.goodwin@blm-law.com
Principal author
1
Boris Cetnik
Partner, BLM London
boris.cetnik@blm-law.com
Malcolm Keen
Solicitor and professional support lawyer, BLM London
Noise-induced hearing loss
Baker v Quantum Clothing Group, Meridian Ltd and Pretty Polly Ltd [2009]
EWCA Civ 499
Court of Appeal, 22 May 2009
Summary
In a noise-induced hearing loss (NIHL) claim, the Court of Appeal held the defendant employer
in breach of duty under section 29 of the Factories Act 1961 from January 1978 in exposing the
claimant to noise of 85-89dB(A)Lep,d1 without hearing protection.
Background
This claim was one of seven made against four different employers in the textile industry in
relation to NIHL, known as the Nottinghamshire and Derbyshire Deafness Litigation.
The claimant was employed by the first defendant knitting company between 1971 and 1991. In
1989, the first defendant provided her with hearing protection. She was exposed to noise below 90
dB(A)Lep,d – what is commonly referred to as the 'negligent threshold' – but above 85 dB(A)
Lep,d for about 18 years. She suffered NIHL. It was common ground that such exposure carried
with it a risk of NIHL. At first instance, her claim was dismissed – the judge held that the first
defendant had not been in breach of duty either at common law or under section 29 of the
Factories Act 1961. In relation to the common law duty, an employer would not be in breach if it
kept exposure to below 90 dB(A)Lep,d in the 1970s and 1980s. In relation to section 29, the
judge held that the workplace was not unsafe due to noise. Section 29 did not add materially to the
common law duty. The required standard of safety was that which ought reasonably to have been
adopted by employers at the relevant time. The other six claims were dismissed because the
claimants failed to show they suffered from NIHL.
The claimant in Baker appealed, contending that the first defendant had been under a duty to
provide her with hearing protection from about 1972 or, alternatively, from a date later than 1972
but before 1989. Two other employers (the second and third defendants) cross-appealed against
the judge's finding that, because of their actual knowledge of the risks of hearing damage (which
was greater than average), their duties of care in relation to exposure to noise of 85dB(A)Lep,d or
above began in early 1985. One contended that it should not be held liable until 1990 and the
other argued for 1986 (the date it provided hearing protection to workers exposed to
85db(A)Lep,d or above).
Section 29 of the Factories Act 1961
Section 29 provides that every workplace shall, so far as reasonably practicable, be made and
kept safe for any person working there.
The appeal
The claimant submitted that:
i)
1
The judge's approach to section 29 was wrong. The judge should first have considered
whether the workplace was safe. If a person suffered hearing loss as a result of working
Lep,d-an employee's daily personal exposure level; the average dose of exposure over an 8 hour working
day
2
there without hearing protection, the workplace was unsafe. Foresight of the risk of injury
was irrelevant. The next step was the question of whether the employer had done all that
was reasonably practicable to make the workplace safe.
ii)
If safety did depend on foresight of risk, the risk of any harm should be considered.
iii) In judging whether the workplace was safe, the question of whether an employer could
reasonably have thought the degree of risk of harm was acceptable was not a relevant
factor.
The defendant submitted that the judge had been correct – whether or not a workplace was safe
depended upon what a reasonable employer ought to have considered acceptable at the time.
Findings
Section 29
Liability under section 29 had two parts:
i)
The claimant must show that the workplace was not safe. If he does, the burden shifts to
the employer.
ii)
The employer must show that it was not reasonably practicable to eliminate the risk of
harm.
i) Safety
The judge's view of the test for safety was wrong. The duty to ensure the workplace was safe was
absolute; there was no requirement to establish that an injury was reasonably foreseeable. The
workplace here was not safe. Since a minority of people would suffer appreciable harm from
prolonged exposure to 85 dB(A)Lep,d, all the employees faced a risk of injury (though only some
of them would actually suffer harm).
Were this approach wrong, and reasonable foreseeability was relevant to safety, the workplace
here would still be unsafe: by the early 1970s any employer who kept abreast of developing
knowledge would have known that prolonged exposure to 85dB(A)Lep,d was harmful to some
people.
ii) Reasonable practicability
If the workplace is not safe, the employer's duty is to do what was reasonably practicable to
eliminate the risk of injury. The employer must ask whether it is practicable to eliminate the risk. If
it is, a balancing exercise follows. The employer must consider whether a) the cost and difficulty
of the steps needed to eliminate the risk substantially outweigh b) the quantum of risk involved.
If the employer is unaware of the risk and cannot reasonably have been expected to know of it, it
cannot be reasonably practicable for him to take any steps at all. For the defence of reasonable
practicability to succeed, the cost and difficulty of eliminating the risk a) above must substantially
outweigh b) the quantum of risk. The quantum of risk included both the gravity of harm if the risk
occurred and the likelihood of the harm occurring.
Application of reasonable practicability
Prior to publication of the Code of Practice for Reducing the Exposure of Employed Persons to
Noise in 1972, there was no reason why employers in the knitting industry should have been
concerned about noise. However, by mid-1973 employers such as the defendants here should
have been turning their minds to the problem of noise. The Code of Practice indicated that
3
exposure to 85 to 90dB(A)Lep,d posed some risk to some employees. By mid-1974, employers in
the knitting industry ought to have known that they had some workshops where exposure (85 to
90dB(A)Lep,d) was such that the workplace was unsafe for some employees and therefore the
whole workforce was at risk of harm. From mid-1974 such employers were under a duty pursuant
to section 29 to do what was reasonably practicable to eliminate the risk.
It was plainly practicable for employers to protect their workers from the risk of harm from mid1974 since ear defenders were available. But was it reasonably practicable? By 1974, a suitably
qualified expert would have told an employer that, given long enough exposure, the high 80s
dB(A)Lep,d was likely to cause significant hearing loss in at least a substantial minority of
individuals. Smith LJ could not see how the employers ‘could have hoped to establish that the
burden of providing ear protectors was substantially disproportionate to the quantum of risk to
their employees.’ Was an employer obliged to consult an expert or would it have been enough to
rely on the Code of Practice?
The Code of Practice was inadequate as an assessment tool. Expert advice was needed for a
proper assessment. British Standard BS 5330, published in 1976, provided a method to assess
the quantum of risk from 85 to 90dB(A)Lep,d which could have been used by any consultant
acoustic engineer. Thus, by late 1976 or early 1977, an average-sized employer in the knitting
industry could and should have been able to make an informed assessment of the quantum of
risk. Once this assessment was made, it could not be said that it was not reasonably practicable to
provide hearing protection.
The first defendant (and any other average-sized employer in the knitting industry) was in breach
of its duty under section 29 if it exposed its employees to 85dB(A)Lep,d or more without hearing
protection from early 1977. Giving six to nine months for the provision of ear protectors, action
should have been taken by January 1978. The claimant's appeal was allowed and the defendant
was liable for her hearing damage attributable to her unprotected exposure between 1978 and
1989, about 12 years. Her total unprotected exposure was for 18 years – Smith LJ assessed
damages at £3,334 (66.67% of £5,000).
Common law liability
Smith LJ's view was that there was no breach of duty at common law in relation to 85 to
90dB(A)Lep,d until 1987 (when the 1986 European Directive which was implemented by the
Noise at Work Regulations 1989 became known). Giving six to nine months to implement a
hearing protection policy, Smith LJ fixed the date for breach of the common law duty for the
average employer at January 1988.
Common law knowledge in relation to the three defendant employers
Because of their actual knowledge of the risk to their employees from exposure to 8589dB(A)Lep,d, the first, second and third defendants' dates of knowledge were early 1983. Smith
LJ allowed another six to nine months to implement hearing protection.
Conclusion
4
1
Section 29 of the Factories Act 1961 applied and required the defendants to i) consider
whether the place of work was safe in respect of any risk (the risk does not need to be a
grave danger or very likely to occur). The issue of what is reasonably foreseeable was
not relevant. If the place of work was not safe then ii) the defendants were required to do
what was reasonably practicable to eliminate or reduce the risk.
2
The knowledge that there is a risk of NIHL arising from exposure to noise at 85 dB(A) and
above was known by 1973. An assessment of that risk could have been made from July
1976 following publication of BS 5330 which explained the relationship between noise
exposure and the expected incidence of hearing disability. The first defendant and any
other average sized employer in the knitting industry could and should have made an
informed assessment of the risk by late 1976 / early 1977. Once that assessment was
made it was reasonably practicable to provide ear protectors by January 1978.
3
In relation to exposure between 85 to 89dB(A)Lep,d, the date for breach of the common
law duty of care for the average employer was January 1988.
4
Because of their actual knowledge, in relation to 85-89dB(A)Lep,d, the defendants were
fixed with dates of knowledge of early 1983 with 6-9 months allowed to implement hearing
protection.
Implications
This decision may be appealed. If the decision remains then it has the following implications:
2
5
1
Section 29 will apply to NIHL claims arising from exposures post April 1962 in the context
of a factory. Section 175 of the Factories Act provides a very broad definition of a factory
which has been interpreted liberally by the courts. Section 29 imposes a more onerous
duty than exists under common law negligence.
2
Exposures from April 1962 (when the Factories Act 1961 came into force) at 85 dB(A)
Lep,d and above will be deemed unsafe. Previously, for the vast majority of employers a
duty of care pre January 1990 and implementation of the Noise at Work Regulations 1989
was only triggered when the 'negligent threshold' of 90 dB(A) Lep,d was reached.
3
The burden will be on the defendant to show that it was not reasonably practicable to
eliminate/reduce the risk; for exposures pre 1970 this will be on the basis that no one
knew of the risk; between 1970-73 it depends on the actual knowledge of the defendant;
and from 1973 it seems that any reasonable sized employer should have known of the
risk.
4
The Court of Appeal found that breach only attached from circa January 1978 after
publication of the July 1976 British Standard which enabled the extent of risk to be
calculated, then allowing six months or so to assess the risk and a further six to nine
months after that to provide hearing protection.
5
However, if reasonably sized employers ought to have known of the risk from at least
1973 then does the fact that they could not establish the precise extent of the risk mean
they should do nothing about it? Should they not err on the side of caution and at least
recommend the wearing of hearing protection? If so is there a danger that a duty of care is
triggered earlier than 1978?
6
What is meant by providing ear protection? Does this mean enforcing the wearing of it? If
so it is a more onerous duty than exists under the 1st action level of the later Noise at
Work Regulations. These regulations did not revoke/repeal the Factories Act. It seems
that the two statutory duties would co-exist.
7
The effect of this judgment would be to lower the threshold of breach to 85 dB(A) Lep,d
from at least January 1978 and potentially also introduce a more onerous statutory duty
for such exposures post January 1990.
8
How many employers could this judgment impact on? In 1995 there were an estimated
800,000 employees in the UK exposed to noise of between 85-90 dB(A), Lep,d2.
Historically in the 1970s and 1980s this figure is likely to have been higher. However,
only a small percentage of such employees would develop NIHL from such exposures
dependent on their overall occupational exposure.
See HSE Final Regulatory Impact Assessment of the Control of Noise at Work Regulations 2005
Limitation
Raggett v (1) Society of Jesus Trust 1929 & (2) Governors of Preston
Catholic College [2009] EWHC 909 (QB)
High Court, 5 May 2009
Summary
In a claim arising from childhood abuse which was issued about 28 years late, the court allowed
the action to proceed because a fair trial remained possible. The court confirmed that, following A
v Hoare, the test to determine a claimant’s date of knowledge under the Limitation Act 1980 is
objective.
Introduction
The claimant was sexually abused by a teacher at his school between 1970 and 1974. However,
he did not bring proceedings until 2007. The defendant submitted that the claim was time-barred
under the Limitation Act 1980: it should have been issued no later than June 1979 (three years
after the claimant’s 18th birthday). The claimant argued that proceedings were timely because he
was unaware the abuse had caused him significant harm until his memories flooded back one
day in April 2005. Limitation and liability were tried together.
Limitation
The Limitation Act requires a claimant to issue proceedings no more than three years after either
the date the cause of action accrued or his date of knowledge, if later. The date of knowledge is
the date when the claimant first knew his injury was significant. An injury is significant if the
claimant would reasonably have considered it sufficiently serious to justify bringing a claim.
Submissions
The claimant argued that the immediate effects of the abuse were not such that a reasonable
person would have considered them sufficiently serious to justify bringing a claim. He had no
knowledge that he had suffered any harm other than the immediate effects of the abuse. He had
no conscious memory of most of what had been done to him. However, this changed in April
2005. During a conversation with a priest, he revealed details of the abuse and ‘a kind of flash
flood’ of memories, as he put it, came over him. The claimant submitted that following this event,
a result of the abuse, he realised that he had suffered psychiatric harm which had affected all
aspects of his life.
The defendant argued that, given the nature and extent of the abuse, the claimant must have
known he had suffered a significant injury by the time he was 18. The episode in April 2005 had
not added to his knowledge – he had merely chosen to disclose information he already knew.
Findings
Swift J found it proved that the claimant had suffered sexual abuse. The court then considered
limitation.
1 Date of knowledge
The claimant had to some extent suppressed his memories of the abuse. Until April 2005 he did
not acknowledge to himself that he had been sexually abused. The April 2005 episode awoke
memories of what had happened and after this date he became convinced that the abuse had
resulted in significant psychiatric harm. When he revealed details of the abuse in April 2005, he
was not merely disclosing them as part of an argument. However, notwithstanding the
6
suppression of memories, the claimant was, at all times, able to remember many incidents of
abuse. But what was his date of knowledge – when did he first know he had suffered a significant
injury? Swift J looked to A v Hoare [2008] UKHL 6 for guidance.
In Hoare, Lord Hoffman addressed the question of how to establish date of knowledge. The test
is objective. The question of whether the claimant, given his psychological state in consequence
of the injury, could reasonably have been expected to institute proceedings is not relevant to date
of knowledge. It is not a question of whether the claimant himself would have considered the
injury sufficiently serious to justify bringing proceedings – it is whether a reasonable person with
his knowledge would have considered it so. The approach to the date of knowledge of a claimant
who has suppressed his memories is, according to Lord Hoffman, ‘practical and relatively
unsophisticated’.
Adopting this approach, Swift J considered that the claimant must have known the nature and
extent of the abuse and its immediate effects upon him from the time the acts were committed.
Whilst he suffered no physical injury, the abuse was frequent and took place over a period of
years. It must have produced significant psychological effects. The claimant was aware of at least
some of these effects – he had, for example, mentioned the abuse to a doctor he had visited in
1996 in connection with depression. Viewed objectively, the effects of the abuse should have
been recognised by a reasonable person as sufficiently serious to justify bringing proceedings.
Since the abuse ended when he was 15, the limitation period ran from 1976 (when the claimant
reached 18, the age of majority). It thus became statute-barred in 1979.
2 Section 33 discretion
Should the court allow the claim to proceed despite being out of time? Section 33 gives the court
a discretion to disapply the limitation period if to do so would be equitable. Swift J noted that the
burden of showing whether it was equitable is on the claimant and is heavy.
The delay here was about 33 years from the end of the abuse to the issue of proceedings. The
reasons for the delay included the claimant’s suppression of his memories and his tendency to
make light of the abuse which he did recollect. He did not recognise the abuse for what it was
until April 2005. Had he been consciously aware of the extent of its effects at any time in the
previous three decades, he would have considered legal action. The claimant’s delay was caused
by his not recognising the fact of the abuse – it was not because of any conscious decision.
Many witnesses were still available though the alleged abuser had died. It was difficult to
envisage how his evidence could prevail over that of the claimant and the other witnesses. Most
of the defendant’s documents still existed and it could not point to any specific document which
was unavailable and would have been likely to materially affect the outcome on liability. The
claimant acted reasonably promptly after April 2005 in seeking legal and medical advice.
Swift J concluded that it would be equitable to exercise her section 33 discretion and allow the
claim to proceed. Notwithstanding the delay (which was no fault of the claimant), the defendant’s
ability to defend the action was not materially affected and a fair trial was possible.
Comment
Following Hoare, the test to establish a claimant’s date of knowledge is objective. A defendant,
when trying to persuade the court not to exercise its section 33 discretion, should seek to show
the court actual prejudice caused by the delay; it should adduce evidence showing how the
defendant’s ability to defend the claim has been impaired and how the chance of having a fair trial
has been reduced.
Harassment
7
Dowson v Chief Constable of Northumbria Police [2009] EWHC 907 (QB)
High Court, 30 April 2009
Summary
The court struck out three claims by police officers under the Protection from Harassment Act
1997 where the conduct in question was not serious enough to amount to harassment.
Introduction
In nine linked claims, a group of police officers alleged that certain conduct of the chief inspector
in charge of their team had breached the Protection from Harassment Act 1997 (the PHA). The
conduct in question occurred in 2002 and 2003. The lead claim was issued in July 2008, within
the six year limitation period under the PHA. The court dealt with two issues:
1
2
Whether certain amendments to the original particulars of claim could be made; and
Whether three of the nine claims should be struck out.
1 Amendments to the particulars of claim
The defendant argued that some of the proposed amendments introduced new claims outside the
limitation period and thus ought not to be permitted. CPR Part 17 gives the court a wide discretion
to allow a party to amend statements of case.
a) The general rule is that before the limitation period has expired, the court will usually allow
proposed amendments.
b) After the limitation period has expired, the court may allow an amendment which adds a new
claim, but only if the new claim arises from the same (or substantially the same) facts as a claim
already pleaded. Thus, for amendments after expiry of the limitation period:
i)
The court asks whether the proposed amendment involves adding a new claim. If it does
not (eg it merely adds further particulars to a claim already pleaded), the court has a
discretion to allow it (and, subject to costs, usually will). If it does add a new claim, the
court goes to the next step.
ii)
Does the new claim arise out of the same or substantially the same facts as those
already pleaded? If it does, the court may allow it. If it does not (ie it is a new claim which
does not arise out of substantially the same facts), the court has no discretion and may
not allow the amendment.
Coulson J allowed all but three amendments. Two of the disallowed amendments raised entirely
new allegations which were outside the limitation period and which did not arise from substantially
the same facts as those already pleaded. The third was not properly particularised and did not
appear to be a proper allegation of harassment. In relation to the amendments which were
allowed, one was nothing more than background material. The rest were either not new claims or
were new claims but arose out of the same or substantially the same facts as those already
pleaded.
2 Should three of the claims be struck out?
Pursuant to CPR 3.4, the court may strike out a claim if the particulars disclose no reasonable
grounds for bringing it. CPR 24.2 allows the court to give summary judgment to the defendant if it
can show that the claimant has no real prospect of successfully establishing his claim. Pursuant
to the PHA, a person must not pursue a course of conduct which amounts to harassment of
another. However, this prohibition does not apply if the course of conduct was pursued for the
8
purpose of preventing or detecting crime. Breach of the PHA gives rise to both civil and criminal
liability.
Application of the PHA in practice
Coulson J summarised guidance from earlier cases on the application of the PHA:
i)
Because breach of the PHA is a crime, the conduct in question must be of appropriate
gravity. A recent case had noted that parallel criminal liability under the PHA did not
restrict the scope of the civil wrong. However, this did not water down the requirement
that conduct must be of sufficient gravity to constitute a criminal offence. To amount to
harassment, conduct must be more than unreasonable – it must be offensive, oppressive
and unacceptable.
ii)
Whether or not conduct will amount to harassment is influenced by the type of workplace
in which it occurs.
iii) To constitute harassment, the conduct must be targeted at the claimant.
iv) An employer is vicariously liable for its employee’s harassing conduct. To amount to a
course of conduct, harassment must occur on at least two occasions. These two
occasions must be linked. Two random acts, by two different employees, at different
times and with no pleaded connection, cannot amount to a course of conduct.
Coulson J distilled these observations into five principles relevant to the strike-out application:
1
2
3
4
5
The claimant must allege conduct which is arguably unreasonable.
The claimant must establish an arguable case of oppression and unreasonableness.
There must be a genuinely offensive and oppressive course of conduct.
The conduct must be targeted at the claimant.
The conduct must be calculated to produce alarm and distress on the part of the
claimant.
Coulson J also concluded that the exception in the PHA for conduct pursued for the purposes of
preventing and detecting crime did not automatically apply to police work (otherwise the Act
would not apply to the police at all). To rely on the exception, a defendant would have to show
that the conduct in question was specifically pursued for the purposes of crime prevention or
detection.
Findings in the three strike-out applications
Coulson J struck out all three claims.
In the first, there was no course of conduct. Allegedly harassing conduct only occurred once. The
conduct itself concerned the chief inspector’s instructions to the claimant on how to interview a
prisoner. The instructions might have been inappropriate but this was not serious enough to
amount to harassment. Neither was it was targeted at the claimant.
The second claim concerned the chief inspector telling the claimant he would provide the Crown
Prosecution Service with certain interview notes and the behaviour of a sergeant who allegedly
pushed a logbook in the claimant’s face. Again, there was no course of conduct – there were two
occurrences but they were unconnected. Neither occurrence was of sufficient gravity to constitute
harassment. The conduct was not targeted at the claimant. Coulson J considered the pleaded
conduct simply a case of people not getting on at work and that the courts should be reluctant to
find that such behaviour can give rise to a PHA claim.
9
The third claim related to the claimant’s view of the chief inspector’s handling of informants and a
remark he allegedly made to another policeman that there were ‘too many shaven headed
detectives from Newcastle’. Again, there was no course of conduct. The conduct in relation to the
handling of informants could not amount to harassment; it was merely a difference of view. The
remark to the other policeman could not possibly amount to harassment. Again, the conduct was
not targeted at the claimant.
Comment
Dowson affirms the view in Conn v Sunderland City Council [2007] EWCA Civ 1492 that for
conduct to amount to harassment it must be serious enough to warrant a criminal sanction. This
somewhat goes against the suggestion in the recent case of Ferguson v British Gas [2009]
EWCA Civ 46 that conduct of this gravity might not actually be required. Coulson J rejected the
submission that there had been a watering down of the requirement for grave conduct. As he put
it: ‘It must be capable of constituting a criminal offence.’
Stress
Paterson v Surrey Police Authority [2008] EWHC 2693 (QB)
High Court, 7 November 2008
Summary
In a work-related stress claim, it was not reasonably foreseeable that the claimant would suffer a
psychiatric injury as a result of his employment. It was not correct that an employer should
foresee that an employee who works longer hours than those provided for in the Working Time
Regulations 1998 was at risk of developing psychiatric injury as a result of stress.
Background
The claimant, born in 1949, was employed by the defendant between December 1979 and March
2006 at Surrey Police headquarters, initially as a caretaker and then, from August 1985, as estate
manager. In September 2004 he suffered a breakdown after his father died. He did not return to
work after this and he was later diagnosed with a psychiatric illness.
The claimant, who lived in accommodation on the estate provided by the defendant, alleged that
his psychiatric illness was due to having to work long hours to fulfil his duties and having to be on
call out of hours to deal with exigencies which might arise. He also argued that the defendant
ought to have provided him with accommodation off-site so as to ensure that, during the times he
was not on call, he was not troubled by people coming to him with problems which ought to have
been referred to the person who was on call.
The defendant argued that it had no reason to know that the claimant was at risk of developing a
psychiatric illness. The defendant also argued that the claimant’s condition was not caused by his
hours of work or by being on call, but rather by the defendant not providing him with off-site
accommodation. Since the defendant was under no duty to provide accommodation off-site, the
defendant submitted, the actual cause of the psychiatric illness was not a breach of duty on its
part.
The law relating to workplace psychiatric illness
HHJ Seymour explained the issues arising in a claim such as this:
10
i)
What was the nature of the duty of care owed by the employer to the employee?
ii)
Was the employee suffering psychiatric illness reasonably foreseeable by the employer?
iii) Was the psychiatric illness suffered by the employee caused by a breach by the
employer of its duty of care?
Guidance was found in Hatton v Sutherland [2002] ICR 613 in which Hale LJ set out 16
propositions, the second of which, known as the ‘threshold question’ is whether ‘this kind of harm
to this particular employee was reasonably foreseeable.’ As noted in Barber v Somerset County
Council [2004] 1 WLR 1089, whilst the Hatton principles provide useful guidance, the overall test
remains the one stated in Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776: ‘the conduct
of the reasonable and prudent employer, taking positive thought for the safety of his workers in
the light of what he knows or ought to know’.
In addition to negligence, the claimant also relied on the Working Time Regulations 1998 and the
Management of Health and Safety at Work Regulations 1999.
The claimant accepted that i) breach of the Working Time Regulations did not give rise to a cause
of action for breach of statutory duty and ii) breach of the Management of Health and Safety at
Work Regulations did not give rise to a cause of action for breach of statutory duty in relation to
anything done before October 2003 (when a breach of these Regulations became actionable).
However, citing Hone v Six Continents Retail Ltd [2006] IRLR 49 for support, the claimant argued
that a breach of the Working Time Regulations could evidence negligence. The Management of
Health and Safety at Work Regulations, amongst other things, require an employer to make
suitable and sufficient assessments of the risks to health and safety which employees are
exposed to at work. The Working Time Regulations, amongst other things, prohibit an employee
from working more than an average of 48 hours per week without written agreement. The
claimant had not agreed an opt-out.
The claimant’s employment
Between November 2003 and August 2004, the claimant worked, on average, just over 43 hours
per week. However, his weekly hours varied and he worked for more than 48 hours per week in
66% of the weeks. The claimant also worked additional hours on weekends and when called out.
In cross-examination, the claimant accepted he had not had any stress problems before 2004.
There was no mention of stress in his sickness record before September 2004. He said he had
not seen his breakdown coming. He did not use the confidential employee telephone line
available and he did not tell the occupational health adviser. Whatever symptoms he suffered, he
either did not recognise or was not prepared to acknowledge as related to stress. He never
discussed his symptoms (such as anxiety attacks) with his wife or anyone at work.
The claimant expressed an interest in obtaining accommodation off the estate in 2003, asking the
Chief Constable if he could move off-site to another property owned by the defendant in summer
2003. Eventually, he turned down a re-location package in April 2004 because, as the judge put
it, ‘he considered he was not being offered enough money to make it worth his while …’
Findings
1 Foreseeability
Did the defendant have any reason to suppose that the claimant would suffer a breakdown or
other injury as a result of stress caused by his work? The judge considered that it did not. In 2004
the claimant was working the ordinary hours he had worked since at least 1985 without apparent
difficulty and without complaint. He presented himself as keen and fit to carry out his duties. He
did not disclose to the defendant the symptoms from which he suffered. He actively concealed
from the defendant that he was suffering from stress.
The claimant’s submission in relation to the Working Time Regulations amounted to an argument
that any employer should foresee that any employee who works for longer hours than those
11
provided for in the Regulations was at risk of developing a psychiatric illness as a result of stress.
The judge considered this could not be correct. The 48 hours figure is, to some degree, arbitrary;
it would be extraordinary if an employer need not foresee the risk of psychiatric injury as a result
of stress if an employee worked an average of 48 hours per week, but should have foreseen the
risk if the employee worked an average of 48.5 hours per week.
Therefore the risk of the claimant developing his psychiatric illness was not reasonably
foreseeable by the defendant.
2 The Management of Health and Safety at Work Regulations 1999
The claimant was unable to place any reliance on the Management of Health and Safety at Work
Regulations 1999. Relevant assessments of the risks to the claimant’s health and safety had
been made.
3 Causation
The psychiatric experts, in their joint statement, agreed that the claimant’s failure to obtain off-site
accommodation that was satisfactory to him and his family significantly contributed to the onset of
his psychiatric symptoms. The judge preferred the defendant’s expert view that what caused the
claimant’s breakdown was his perception of how he had been treated in relation to relocating
from the estate. The operative cause of the breakdown in September 2004 was this perception of
how he had been treated. The defendant had no duty to provide the claimant with alternative offsite accommodation. Housing on the estate was provided for the better performance of the
claimant’s duties. Thus, the cause of the claimant’s illness was not a breach of duty on the
defendant’s part. The claim was dismissed.
Comment
In Paterson v Surrey Police Authority [2008], the High Court followed the Hatton principles and
emphasised the importance of foreseeability. HHJ Seymour considered that breach of the
Working Time Regulations was of limited relevance to foreseeability. The contention that any
employer should foresee that an employee who worked longer hours than those provided for in
the Regulations was at risk of developing a psychiatric injury as a result of stress could not be
correct. Paterson suggests that a breach of the Regulations will be of limited help to claimants
and that foreseeability of the risk of the claimant developing a psychiatric injury remains
paramount.
PUWER
Smith v Northamptonshire County Council [2009] UKHL 27
House of Lords, 20 May 2009
Summary
The Provision and Use of Work Equipment Regulations 1998 (PUWER) apply to work equipment
which is incorporated into and adopted as part of the employer’s business or undertaking and
which is provided to the employee either by the employer or by someone else with the employer’s
consent.
Introduction
The claimant was employed by the defendant local authority as a carer and driver. In December
2004, whilst pushing a disabled person in a wheelchair down a ramp at that person’s home, the
ramp gave way and the claimant was injured. The ramp had been placed there 10 years before
12
by the NHS. The claimant brought proceedings alleging breach of the Provision and Use of Work
Equipment Regulations 1998 (PUWER).
PUWER 1998
Regulation 2(1) defines work equipment as any machinery, appliance, apparatus, tool or
installation for use at work (whether exclusively or not). Use is given a wide definition including
starting, stopping, setting, modifying and servicing. Regulation 3 is concerned with how PUWER
applies. Regulation 3(2) provides that the obligations imposed by PUWER apply to work
equipment ‘provided for use or used by an employee at his work.’
The relevant obligation under PUWER was Regulation 5(1). Stark v Post Office [2000] ICR 1013
confirmed that the duty to maintain work equipment in good repair under Regulation 5(1) is
absolute. The key issue was whether or not PUWER applied to the ramp. To determine this, the
House of Lords had to answer two questions:
i)
ii)
Was the ramp work equipment under Regulation 2(1)?
If it was, was it ‘provided for use or used by’ the claimant at work pursuant to Regulation
3(2)?
Findings
Regulation 2(1)
The defendant conceded that the ramp was work equipment. An item is work equipment if it can
be expected to perform a useful function in the employer’s business.
Regulation 3(2)
If Regulation 3(2) was interpreted literally, any item of work equipment used at work would come
within the area of the employer’s responsibility. For example, PUWER would apply to a defective
escalator at a tube station used by a solicitor’s clerk travelling, in the course of his work, from his
office to the House of Lords Committee Room (and the solicitors firm would be strictly liable if the
clerk was injured by the escalator).
The majority considered that PUWER applied to work equipment which is incorporated into and
adopted as part of the employer’s business or undertaking and which is provided to the employee
either by the employer or by someone else with the employer’s consent. There must be some
connection between the work equipment and the employer’s business. If control is relevant to the
scope of Regulation 3(2), the employer must have control of the work equipment.
The majority dismissed the claimant’s appeal. The ramp was neither incorporated into nor
adopted as part of the defendant’s undertaking. Neither was it under the defendant’s control. The
defendant did not provide it, did not own it and had no responsibility to repair it. The ramp was
merely part of the environment (like the tube station escalator) which employees faced when
working away from the employer’s premises.
Implications
1 An employer is not liable under PUWER for any and every injury his employee suffers due to
defective work equipment in the course of his employment.
2 There is a two-stage test to establish whether PUWER applies to the equipment in question:
i)
ii)
13
Is the item work equipment under Regulation 2(1)?
If it is, does PUWER apply to it under Regulation 3(2)?
i)
The definition of work equipment goes beyond tools of the trade. However, the definition is
not unbounded and Smith does suggest certain restrictions:
a) Baroness Hale considered that not everything an employee chooses to use
during working hours is work equipment. The item must be something specifically
for the work the employee is employed to do. For example, an iPod brought in to
listen to while working would not be work equipment.
b) According to Lord Hope, to constitute work equipment, the item must have some
practical purpose in connection with work (since the definition of work equipment
in Regulation 2(1) includes the term ‘for use at work’). Consequently, items for
decoration or storage and items which cannot be used such as the floors, walls
or ceilings of a building are not work equipment.
ii) PUWER applies to work equipment which is incorporated into and adopted as part of the
employer’s business or undertaking and which is provided to the employee either by the employer
or by someone else with the employer’s consent. There must be some connection between the
work equipment and the employer’s business or undertaking. The employer must have control of
the work equipment itself.
Conclusion
PUWER’s ambit is circumscribed by the test described above. Smith limits the scope of the
Regulations and suggests that PUWER will not apply to work equipment over which an employer
has no control.
Carpal tunnel syndrome
Darg v Commissioner of Police for the Metropolis (defendant)
& Venson Public Sector Ltd (third party) [2009] EWHC 684 (QB)
High Court, 31 March 2009
Summary
Notwithstanding that he had exaggerated his symptoms, the claimant was awarded damages for
the carpal tunnel syndrome he suffered as a result of lacerations to two of his fingers.
Background
The claimant was employed as a mechanic by the third party. In September 2002, whilst working
on a police vehicle, he cut his left index and left middle fingers on a knife which, unknown to him,
had been wedged between the front seats. His lacerations were treated at hospital. In June 2003
he was diagnosed with carpal tunnel syndrome (CTS). In September 2003 he underwent
decompression surgery. He then developed complex regional pain syndrome (CRPS) in his left
hand. He also suffered anxiety related to fear of contracting HIV and was given Hepatitis B
injections. He claimed that his symptoms were severe (such as swollen hands, pain in his hands
and feet, inability to walk more than 50 metres without severe discomfort) and that his injury was
disabling. The claimant gave up work in March 2004. He argued that all his problems could be
traced to the cut to his fingers – the cut caused swelling, the swelling led to CTS, the CTS was
decompressed and the decompression led to CRPS. The claimant sought damages of about
£1,000,000.
The defendant admitted liability for the accident itself but argued that i) the claimant had
exaggerated his symptoms and ii) the initial accident had not caused the CTS and subsequent
problems. There is no medical science yet published which treats laceration to fingers as a cause
of CTS. The claimant was also filmed engaging in his hobby of air-rifle shooting.
14
The issues for the judge were:
a)
b)
c)
Causation.
The extent of the claimant’s disability.
The appropriate level of damages.
Findings
a) Causation
Causation was established. Swelling in the claimant’s hand was present at the time of the injury.
There were continuous CTS symptoms between the date of the accident or shortly after and the
diagnosis in June 2003. The judge concluded that the necessity for a CTS operation was caused
by the accident.
The claimant’s consultant rheumatologist (whose evidence the judge preferred) said he had
experience of lacerations causing swelling and, although there was no scientific literature
showing that lacerations caused CTS, he considered that such swelling may cause swelling in the
wrist and the carpal tunnel leading to CTS. He considered swelling and inflammation was the
most likely mechanism to trigger the CTS. This view was supported by the claimant’s consultant
hand surgeon (who diagnosed the claimant’s CTS in June 2003). The hand surgeon stated in his
report that ‘carpal tunnel syndrome may well be precipitated by a hand injury with resulting hand
swelling’.
b) The extent of the claimant’s disability
The claimant exaggerated the extent of his disability. However, he was not filmed doing things he
told the doctors he could not do. The films demonstrated that he could do the things he accepted
he could do, but with greater facility than he conveyed to others. For example, he could walk 500
yards without apparent discomfort though he may be tired and experience some pain afterwards.
In early 2006 he passed a driving assessment as fit to drive a manual car without any
adaptations. He suffered some disability from CRPS but it was less serious than what he
portrayed.
The claimant was therefore entitled to damages for lacerations, anxiety about HIV, symptoms of
CTS, the decompression operation for CTS and the development of CRPS. This resulted in pain
of varying intensity in the left hand spreading to the right hand and to the feet. However, the
condition did not prevent him driving, walking, using a computer or enjoying his hobby of air-rifle
shooting. The claimant was fit to perform 12 hours work a week. He would not be able to return to
full time work. However, in three years’ time he would be able to find employment with two-thirds
of his pre-accident earning capacity.
c) Damages
General damages for pain, suffering and loss of amenity were assessed at £32,500.
Ionising radiation
AB v Ministry of Defence [2009] EWHC 1225 (QB)
High Court, 5 June 2009
Summary
In 10 test cases in which ex-servicemen alleged they had developed a variety of illnesses as a
result of exposure to ionising radiation during nuclear tests in the 1950s, the court declined to
15
either i) strike the claims out as having no reasonable prospect of success or ii) hold them
statute-barred under the Limitation Act 1980.
Introduction
The claimants, mostly former servicemen, alleged that exposure to ionising radiation during
British Government nuclear tests in the 1950s caused them to develop a variety of illnesses
including certain forms of cancer. The defendant argued that, by the standards of the time, all
reasonable precautions were taken. It also argued that the scientific basis for the claimant’s case
was flawed and that any illnesses which might have developed arose naturally and by processes
other than exposure to ionising radiation during the tests. The claims are part of a group action –
10 test cases were chosen out of 1,011 claimants.
The defendant submitted that the claims a) should be struck out because each had no
reasonable prospect of success and b) were time-barred under the Limitation Act 1980.
In relation to a), the defendant argued that the claimants could not prove causation since they
had admitted that the illnesses alleged to have developed also occur even when there is no
known history of exposure to ionising radiation, that there were other risk factors such as smoking
and that if more than one risk factor was identified, medical science could not say as a matter of
probability which risk factor caused the condition. This, the defendant contended, meant that
Wilsher v Essex AHA [1988] AC 1074 applied – since there were multiple agents which could
have caused the illnesses and it could not be proved which out of the possible causes was most
probable, causation could not be established. The exception to the general rule found in Fairchild
v Glenhaven Funeral Services [2003] 1 AC 32 did not apply.
Findings
Strike out on causation
Foskett J declined to strike out the claims. Causation here should be dealt with at trial. Until the
facts were established, it was impossible to know whether Wilsher governed the cases and what
test of causation applied. Whilst in some claims there might be difficulties in proving causation,
this did not justify strike out.
Where the law was developing or uncertain, this would also weigh against strike out. Unless it
was possible to give a certain answer to the question of whether the claim would succeed, strike
out was inappropriate. Foskett J considered that the Fairchild exception could potentially apply to
cases other than mesothelioma. The claimants argued that, in the cases which had potentially
different causes, those causes operated synergistically and by a similar mechanism.
Development of the Fairchild exception
Following Fairchild, in mesothelioma claims, an exception is made to the usual rule of causation
and the claimant can succeed by showing that the defendant’s breach of duty increased the risk
that he would develop the condition.
Foskett J reviewed recent cases which examined the Fairchild exception and found support for
the view that ‘the consequences of Fairchild are being worked through by the courts and that
consideration is being given to the cautious ‘analogical and incremental development’ of the
principle’. This analysis of the cases supported a refusal to strike out. In Novartis Grimsby v
Cookson [2007] EWCA Civ 1261, a bladder cancer case, Smith LJ said that the exception was
not limited to mesothelioma: it should apply to bladder cancer because the two causative agents
(occupational exposure to amines and amines in cigarette smoke) operated in the same way.
Sanderson v Hull [2008] EWCA Civ 1211 suggested that judges at first instance were entitled to
consider whether the Fairchild exception applied to cases other than mesothelioma.
16
Limitation
Pursuant to section 11 of the Limitation Act 1980, the claimant has to bring his claim within three
years from the date on which the cause of action accrued or from his date of knowledge (if later).
According to section 14 of the Act, the date of knowledge is the date when the claimant first knew
that the injury was significant and attributable to his work. An injury is significant if the claimant
would reasonably have considered it sufficiently serious to justify bringing a claim. Under section
33, the court may disapply the limitation period and allow a late claim to proceed if to do so would
be equitable.
Multiple injuries and date of knowledge
Contrary to the defendant’s argument, where the claimant is seeking damages for multiple
injuries, time does not start to run as soon as the claimant knows that the first injury is significant
and capable of attribution to radiation. Each case in which a number of conditions emerge at
different times should be considered on its own facts.
When does the claimant possess knowledge?
For a claimant here to have knowledge under section 14 (ie to know that his alleged injury was
attributable to the defendant’s fault) he would need to appreciate:
i)
ii)
That his injury was capable of being caused by radiation above background level.
That there was some credible evidence that, as a result of the nuclear tests, he was
exposed to ionising radiation above background level.
This knowledge could only arise when a claimant became aware of a 2007 New Zealand study
(the Rowland report) which concluded that chromosome changes at a greater frequency amongst
ex-servicemen than that found in the control group was most likely attributable to radiation
exposure. A claimant would only become aware of this report when told the views of an expert.
However, Foskett J’s view of section 14 knowledge was guided by certain principles:
a)
b)
c)
Following Sniezek v Bundy Ltd [2000] PIQR P213, a claimant’s belief in the attributability of
an illness to a certain cause can amount to knowledge, even if unsupported by expert
evidence.
Obtaining legal advice can indicate knowledge.
Applying for a war pension here did not signify knowledge.
Section 33
The burden of proof to persuade the court that it is equitable to disapply the limitation period is on
the claimant. In exercising the section 33 discretion, the court must be guided by what is fair and
must have regard to all the circumstances of the case. The longer the time since the material
events, the greater the concern about the possibility of a fair trial.
The claimant’s delay
The ‘length of, and the reasons for, the delay on the part of the [claimant]’ in bringing proceedings
is one of the six factors listed under section 33(3) to which, in addition to all the circumstances of
the case, the court should have regard, in deciding whether to disapply the limitation period.
Delay before expiry of the limitation period is not relevant under section 33(3)(a). However, all
delay should be taken into account under ‘all the circumstances of the case.’ The key question
was, ‘whether a fair trial of the primary factual issues can now take place after the overall period
of time that has elapsed since the tests.’
Other circumstances relevant to exercise of the section 33 discretion
17
i)
The existence of a claim against a solicitor for missing issuing proceedings in time has been
taken into account in considering the question of prejudice.
ii) As noted in Adams v Bracknell [2005] 1 AC 76, it is relevant to consider whether exercise of
the section 33 discretion would result in the diversion of precious resources (though Adams
concerned the resources of a local education authority).
iii) The overall merits of the claim should be taken into account.
Section 33 – relevant factors in the present case
The defendant’s view was that a fair trial was no longer possible – important witnesses who had a
leading role in the nuclear tests were no longer available to give evidence. The claimants argued
that a fair trial was still possible due to the availability of written evidence.
i) Foskett J considered that a fair trial was possible by reference to the documents
created at the time of the tests. The cogency of the evidence was not substantially
diminished by the absence of live witnesses.
ii) The need for the issues here to be ventilated was relevant to the exercise of the
section 33 discretion.
iii) Avoiding apparent injustice was a factor to be considered.
iv) Whilst the claimant’s case was not new, the Rowland Report and advances in
scientific techniques changed the landscape significantly.
Conclusion
The court allowed all ten claims to proceed. Out of the 10 cases, five were in time – issued within
three years of the claimant’s date of knowledge. The five remaining cases were time-barred but
Foskett J exercised his section 33 discretion to disapply the limitation period.
Featured articles
Stress
Liability in work-related stress claims – now and the future
Introduction
Liability for psychiatric injury caused by stress at work was first established in Walker v
Northumberland County Council [1994]. The normal principles of negligence apply to common
law work-related stress claims: not only must the claimant show the existence of a duty of care, a
beach of that duty and psychiatric injury as a result of that breach, but also that the risk of injury
arising from that breach was reasonably foreseeable.
Further assistance was given by the Court of Appeal in Hatton v Sutherland [2002], in which Hale
LJ set out 16 principles which provide guidance in workplace psychiatric injury claims. The most
important of the principles is the ‘threshold question’ of whether ‘this kind of harm to this particular
employee was reasonably foreseeable’. To succeed, the claimant has to show that the employer
knew or ought to have known of the risk of injury. The injury must amount to an injury to the
claimant’s health – suffering from stress without such injury is not sufficient. In Hatton, it was also
held that the employer is usually entitled to assume that an employee can withstand the normal
pressures of the job unless he knows of some particular problem or vulnerability.
Guidance from the courts since Hatton
18
The courts continue to apply the Hatton guidance. In Barber v Somerset County Council [2004],
Lord Walker stated that the Hatton principles provide useful guidance but do not possess
‘anything like statutory force.’ Each case turns on its own facts. The central question remains:
what did the employer know and what did he do?
The Court of Appeal considered the Hatton principles in Croft v Broadstairs & St Peter’s Town
Council [2003], where the claimant’s psychiatric injury was held not to have been reasonably
foreseeable. The claimant, who was the defendant’s town clerk, had a pre-existing psychiatric
vulnerability which the defendant was not aware of. The fact that two town councillors knew she
had undergone counselling was not sufficient. Potter LJ considered that the defendant was
entitled to expect ordinary robustness in an employment context. In Foumeny v University of
Leeds [2003] (Potter LJ again), the Court of Appeal again followed Hatton and the claim was
dismissed on the grounds of foreseeability, breach of duty and causation. The employer was only
required to take steps which were reasonable in the circumstances.
Foreseeability was considered in Pratley v Surrey County Council [2003] where the employer
agreed with the claimant to introduce a new system of work. The new system of work was not in
place when the claimant returned from a holiday and she suffered a psychiatric illness. The Court
of Appeal upheld the judge’s finding that whilst there was a foreseeable risk of injury in the long
term if work overload continued, the immediate collapse which occurred was not foreseeable.
Mance LJ emphasised the distinction between a risk of psychiatric injury arising from continuing
work overload in the future, and a risk of collapse in the short-term arising from disappointment
that the new system of work had not been introduced. The harm in each case was psychiatric
injury but it occurred at different times and as a result of different mechanisms. Pratley shows that
for a claimant to recover, the injury which actually occurs must be foreseeable, not just that it is
foreseeable that a future injury may occur if, for example, work overload continues.
In Bonser v RJB Mining (UK) Ltd [2003], where the claimant had a pre-existing emotional
vulnerability not apparent to the defendant, the Court of Appeal found the defendant not liable
when she had a break down because the defendant had no reason to apprehend this might
happen. Lord Phillips MR stated: ‘An employer will be in breach of duty to a employee if the
employer subjects the employee to severe pressure of work in circumstances where the employer
knows, or ought reasonably to foresee, that this is likely to cause the employee to suffer some
form of breakdown which results in psychiatric injury.’
Applying the Hatton principles in Hartman v South Essex Mental Health and Community Care
NHS Trust [2005], the Court of Appeal emphasised both the need for care in the application of the
principles to the facts of the particular case under consideration, and the requirement to prove
that a psychiatric injury was foreseeable. The Court of Appeal’s view was that the Hatton
guidance did not lay down new principles but was rather the application of established principles
to a new situation.
The question of foreseeability was again decisive in Harding v The Pub Estate Company Ltd
[2005]. In overturning the trial judge’s finding of liability in relation to a pub landlord who suffered
a heart attack which he claimed was caused by stress at work, the Court of Appeal emphasised
the importance of analysing what the claimant actually said about his concerns and what
knowledge the defendant possessed. For the defendant to be in breach, it needed to be on notice
that the claimant would suffer injury if it did not take action. In Harding, no one foresaw a
breakdown in the claimant’s health and such a breakdown was not foreseeable – the defendant
never received the kind of warning which required it to act.
The provision of counselling services
Intel v Daw [2007] indicates that the provision of confidential advice or counselling services for
employees is not in itself sufficient to provide a defence and does not discharge the duty of care
owed to the individual employee.
19
Other causes of action
In addition to common law claims in negligence it may also be open to a claimant to bring
proceedings for breach of statutory duty. The Management of Health and Safety at Work
Regulations 1999 were amended in October 2003 to remove the previous exclusion on civil
liability. Since 27 October 2003, a breach of the Regulations provides a cause of action.
Regulation 3 requires an employer to make a suitable and sufficient assessment of the risks to
the health and safety to which employees are exposed. Where an employer breaches the
Regulations and, as a result, the claimant suffers injury, the claimant may seek damages for
breach of statutory duty.
It is likely that the failure to carry out a risk assessment in breach of the Regulations will provide
evidence of a breach of the common law duty of care. In Paterson v Surrey Police Authority
[2008], the claimant was unsuccessful in relying on the Regulations. The judge noted that
Regulation 3 did not require the risk assessment be undertaken in any particular format or at any
particular time or to be reviewed at any particular frequency. All that is required is that the specific
findings of the risk assessment be recorded. The discussions between the claimant and his
employer about hours of work amounted to informal risk assessments. In addition, even if they
did not, formal risk-assessments would only have resulted in the discussion which did in fact take
place. Thus no breach of Regulation 3 was causative of any loss. It remains to be seen how the
courts will view this cause of action in future.
In November 2004, the Health and Safety Executive (HSE) launched the Management standards
for work-related stress. The Management standards approach aims to reduce the number of
employees who go off sick or whose performance at work suffers because of stress. The
Management standards provide practical advice to employers on risk assessment and
demonstrate good practice through a step by step approach. They help to simplify risk
assessment by identifying the main factors for work-related stress and assisting employers to
focus on the underlying causes of stress and their prevention.
The potential imposition of civil liability under the Management of Health and Safety at Work
Regulations 1999 and the launch of the HSE Management standards illustrates the importance of
risk assessments. These developments also suggest that employers may be expected to take a
more active approach to managing the risks of work-related stress.
Working Time Regulations 1998
In Hone v Six Continents Retail Ltd [2005], the claimant alleged that he suffered stress leading to
psychiatric injury as a result of being required to work excessive hours – the records he kept
purported to show he worked up to 92 hours per week. Foreseeability was the main issue. The
defendant was liable because there were sufficiently plain indications of impending harm to health
for a reasonable employer to do something. The claimant relied on the Working Time Regulations
1998 as being relevant to foreseeability. Pursuant to the Working Time Regulations, an employer
may not require an employee to work more than 48 hours per week without his written consent. In
Hone, the claimant had not given such consent, he had complained about his hours and the
defendant was aware of the Regulations. Hone suggests that whilst a breach of the Regulations
is a factor to be considered, it is not sufficient per se to satisfy the test for foreseeability. The
Court of Appeal referred to but did not hear argument on the issue of whether breach of the
Regulations gives rise to a civil claim for breach of statutory duty or breach of an implied term of
the employment contract.
In Pakenham-Walsh v Connell Residential (Private Unlimited Company) [2006], reliance was
placed on the Regulations as setting a standard by which an employer’s conduct is to be judged
and, like Hone, not as a separate cause of action. Hone and Pakenham-Walsh illustrate both the
significance of forseeability in establishing or avoiding liability and that liability does not flow from
breach of the Regulations. A breach of the Regulations could constitute evidence of negligence
20
but it does not appear to give rise to a separate cause of action for breach of statutory duty. This
was confirmed in Sayers v Cambridgeshire CC [2006] where it was held that breach of the
Regulations did not give rise to a civil cause of action. In Paterson v Surrey Police Authority
[2008], the High Court followed the Hatton principles and emphasised the importance of
foreseeability. HHJ Seymour considered that breach of the Regulations was of limited relevance
to the question of foreseeability. The contention that any employer should foresee that an
employee who worked longer hours than those provided for in the Regulations was at risk of
developing a psychiatric injury as a result of stress could not be correct. Paterson suggests that a
breach of the Regulations will be of limited help to claimants and that foreseeability of the risk of
the claimant developing a psychiatric injury remains paramount.
Claims in contract
The Hatton principles were applied by the Court of Appeal in Deadman v Bristol City Council
[2007], a claim which arose out of an allegation of sexual harassment and involved consideration
of both negligence and breach of contract as causes of action. The contract of employment is
subject to an implied term that the employer will take reasonable care of the employee’s health
and safety. The duties of an employer to his employees are essentially the same whether framed
in contract or tort (Martin v Lancashire County Council [2001]). In Deadman, the Court of Appeal
held that, notwithstanding the defendant’s beach of contract, the defendant was not liable for the
claimant’s psychiatric injury because the injury was too remote from the breach. The question
was again one of foreseeability. It was not foreseeable that the breach would result in psychiatric
harm.
The cases thus show that the ordinary principles of employers’ liability apply to workplace stress
claims at common law and, in the application of the Hatton guidance, foreseeability remains
pivotal.
The Hatton guidance in future
The status of the Hatton guidance has been challenged in certain respects by the Court of Appeal
in Dickins v O2 Plc [2008]. In relation to foreseeability, the evidence in Dickins indicated that
psychiatric injury to the claimant was reasonably foreseeable. She was palpably under stress and
the defendant had received a clear indication of impending illness. In relation to beach of duty,
the provision of a confidential counselling service did not assist the defendant. A confidential
counselling service would help an employee who wished to keep such matters outside his
employer’s knowledge but it did not help here since the claimant openly expressed her problems
to her managers. In the circumstances, the mere suggestion that she seek counselling was not
an adequate response. In respect of causation, the Court of Appeal approved of the Hatton
guidance on this subject: the correct test is whether the defendant’s breach of duty made a
material contribution to the claimant’s ill-health. The divergence from Hatton came in relation to
apportionment of damages.
Notwithstanding that apportionment did not form part of the appeal, the Court of Appeal in Dickins
considered whether apportionment was appropriate in a case, such as this one, where the
psychiatric injury had both tortious and non-tortious causes. Smith LJ noted that apportionment of
damages is usually carried out only where the injury is divisible, such as in noise-induced hearing
loss claims. She considered the injury here indivisible and doubted whether apportionment was
applicable to a psychiatric injury with multiple causes. Smith LJ’s obiter view was that, where the
defendant’s beach has made a material contribution to the injury (ie it was more than minimal) but
it is not scientifically possible to exactly quantify that contribution, and the injury is indivisible,
damages should not be apportioned. This contradicts the Hatton guidance which advocates
apportionment in psychiatric injury cases with more than one cause. The Court of Appeal in
Dickins did consider that there may be a reduction in some heads of damage for future risks of
non-tortious loss.
21
It can be seen that Dickins confirms the test for causation in work-related stress claims where
there is more than cause: the claimant must show that the defendant’s breach made a material
contribution to his injury. However, the Court of Appeal was critical of the Hatton approach to
apportionment. Given that both the Hatton guidance on apportionment and Smith LJ’s views on
the subject in Dickins were obiter, it remains to be seen which advice courts of first instance will
follow. Defendants should continue to argue that apportionment ought to take place to take
account of non-negligent causes and should develop medical evidence in support.
Harassment at work
What do the cases tell us about the current law of harassment?
The tort of harassment was created by the Protection from Harassment Act 1997 (PHA). The
PHA prohibits a person from pursuing a course of conduct which he knows (or ought to know)
amounts to harassment of another. A breach of the PHA gives rise to:
i)
a civil claim for damages (for anxiety and financial loss caused by the harassment); and
ii)
renders the harasser guilty of a criminal offence.
Longmore LJ described the three elements of harassment in Allen v Southwark LBC [2008]:
a)
b)
c)
there must be a course of conduct.
the course of conduct must amount to harassment of another; and
the harasser must know or ought to know that the course of conduct amounts to
harassment.
a) Course of conduct
Conn v Sunderland City Council [2007] confirmed that, to satisfy the requirement for a course of
conduct, there must be at least two incidents of harassment. These incidents must be connected
in type and context so that they can properly be characterised as a course of conduct (Pratt v
DPP [2001]; Crawford v CPS [2008]). The fewer the incidents and the wider in time they are
spread, the less likely they are to amount to a course of conduct (Lau v DPP [1999]). It should not
be assumed that two incidents necessarily give rise to a course of conduct (Merelie v Newcastle
Primary Care Trust [2004]). Two random acts, by two different people, at different times, with no
connection between them, cannot amount to a course of conduct (Dowson v Chief Constable of
Northumbria [2009]).
b) Harassment of another
Harassment is not defined in the PHA but the statute and the cases provide guidance. To amount
to harassment, the conduct must be:
i) targeted at the claimant.
ii) calculated to cause alarm or distress; and
iii) oppressive and unreasonable (Thomas v Newsgroup Newspapers [2001]; Green v DB
Group [2006]).
The conduct must have an element of real seriousness (Hammond v INS UK [2007]). Irritating,
annoying or unattractive behaviour is not sufficient. The conduct must be serious enough to
sustain criminal liability (Majrowski, House of Lords; Crawford). It is not enough that the conduct
causes distress – it must be calculated to cause distress (Majrowski, Court of Appeal). Conn too
suggests that for conduct to amount to harassment, it must be so grave that it could lead to a
criminal conviction. Gage LJ set the threshold high: ‘[…] the touchstone for recognising what is
not harassment […] will be whether the conduct is of such gravity as to justify the sanctions of the
criminal law.’ Coulson J has made his view clear twice. In Hammond, he said ‘the conduct in
22
question will be criminal and might even attract a custodial sentence.’ In Dowson, he said ‘[the
conduct] must be capable of constituting a criminal offence.’
The conduct need not be physical – speech is sufficient. For example, in Conn, a threat to give
the claimant ‘a good hiding’ amounted to harassment. However, threatening to smash windows
did not. In Banks v Ablex [2005], shouting, swearing and finger pointing on the factory floor did
not constitute harassment. Similarly, in University of Oxford v Broughton [2008], shouting which
caused irritation but not fear or distress was not harassment.
The kind of workplace in which the alleged harassment took place is also relevant – behaviour
which might not be harassment on the factory floor or in an army barracks might be harassment
in a hospital ward and vice versa (Conn).
Proving bullying serious enough to warrant a criminal conviction is likely to be the hardest part of
the claimant’s case.
c) The harasser must know or ought to know that the course of conduct amounts to harassment
For liability to attach, the alleged harasser must know, or ought to know, that the behaviour in
question amounts to harassment. The test to determine whether or not he ought to know is
objective (section 1(2) PHA, R v SPC [2001]; Hammond). Would the ordinary, reasonable person
think that the course of conduct amounted to harassment?
Overlap with other causes of action
Bullying at work can potentially lead to three main categories of claim:
i) A harassment claim under the PHA.
ii) A common law stress claim for psychiatric injury; or
iii) A claim in the Employment Tribunal under discrimination legislation or for unfair
dismissal.
Whilst there is a good deal of overlap between claims under the PHA and those in negligence,
there are also striking differences. Harassment claims differ from other actions in five main
respects:
i) Breach of the PHA leads to civil and criminal liability.
ii) The court may award damages for anxiety caused by the harassment. Unlike common
law stress claims, the claimant is not required to show he has suffered a psychiatric
injury.
iii) The claimant does not need to prove that an injury was foreseeable. Once the three
elements described above are satisfied, liability is established. In relation to liability, this
is probably the most significant difference between the two causes of action.
iv) Taking all reasonable steps to prevent the claimant from suffering harassment
provides no defence.
v) The claimant has six years to bring proceedings. The court has no discretion to
disapply the limitation period.
In harassment claims, the conduct of the alleged harasser is key. Has the conduct in question
occurred on at least two occasions? Is it targeted at the claimant? Is it calculated to cause alarm
or distress? And is it serious enough to justify criminal prosecution?
Damages
23
Whilst the PHA provides damages for anxiety without a recognised psychiatric injury, it does not
give any guidance on how such an award should be calculated. In claims brought in both
common law negligence (for a psychiatric injury) and for harassment under the PHA, the court
may choose not to make a separate award under the PHA but instead compensate for anxiety
within the general damages award (Green).
Guidance from harassment cases
The recorder in Singh v Singh Bhakar (2006) observed that no reported cases on the correct
approach to damages under the PHA could be found. He decided to look at psychiatric injury
awards and at the JSB Guidelines. The recorder considered that damages for anxiety should be
awarded on a compensatory rather than a punitive basis. The final award was £35,000. However,
the conduct in Singh was particularly traumatic and took place within a family setting. This award
even included a sum to cover aggravated damages. The aggravated damages award appeared
to be the result of the extent of the anxiety suffered by the claimant. The recorder also noted that
the damages here should reflect the ‘four months of hell […] lived through while the conduct was
continuing’ and that the conduct was deliberate and malevolent. As the recorder put it: ‘She was
utterly miserable and wretched during those four months, and was suffering from what was for
her an incomprehensible personal attack’. This suggests that £35,000 is very much at the higher
end of anxiety awards.
In Conn, where the harassment was verbal – a threat to break windows and a threat of violence –
the judge at first instance awarded damages of £2,000. In Martins v Choudhary [2007], the Court
of Appeal upheld an award of £10,000. In Martins, the course of conduct consisted of verbally
abusive and racist behaviour and a road traffic accident prior to which the defendant had
expressed his intention to run the claimant off the road. Martins is also relevant in relation to
whether the court should make separate damages awards where the claim is in both negligence
and under the PHA. The Court of Appeal concluded that there was no hard and fast rule. Whilst a
single award was made in Richardson v Howie [2004], in Vento v Chief Constable of West
Yorkshire [2002] three separate awards were made for i) psychiatric harm, ii) injury to feelings
and iii) aggravated damages.
Smith LJ in Martins considered that where the psychiatric harm is not great and merges with the
anxiety or injury to feelings, a single award covering both heads will be more convenient.
However, where the psychiatric injury is substantial, separate awards will be helpful to the parties
and to the court and will assist in better understanding a judge’s reasoning. Where two separate
awards are made, the court must take care to avoid double recovery by overlap. The Court of
Appeal considered the £10,000 award under the PHA on the generous side but permissible,
given the effect of the racial abuse on the claimant and the extent and gravity of his upset,
frustration, worry, mental distress, fear, grief, anguish and humiliation.
In Vento, a sex discrimination case, the Court of Appeal gave guidance in relation to assessing
damages for injury to feelings (injury to feelings broadly corresponding to anxiety under the PHA).
Mummery LJ urged judges to keep the level of damages for injury to feelings broadly in line with
awards in personal injury cases. The Court of Appeal set out three brackets for awards for injury
to feelings:
i)
The top band should normally be between £15,000 and £25,000. This is for the most
serious cases such as where there has been a lengthy campaign of harassment. Awards
above £25,000 will be exceptional;
ii) The middle band is between £5,000 and £15,000. This is for serious cases which do not
merit an award in the highest band;
iii) Awards of between £500 and £5,000 are appropriate for less serious cases. Awards
below £500 should be avoided.
24
Whilst the application of the tort of harassment has expanded to encompass workplace claims, its
application is limited by the requirement to show conduct serious enough to warrant criminal
prosecution. Contrary to some predictions following Majrowski, there has been no flood of claims.
News and press
Civil litigation costs review
On 8 May 2009, Review of Civil Litigation Costs: Preliminary Report was published. The report,
which is almost 700 pages long, is the result of the first phase of Lord Justice Jackson’s review of
the costs of civil litigation. Lord Justice Jackson’s objective is to carry out an independent review
of the rules and principles governing the costs of civil litigation and to make recommendations in
order to promote access to justice at proportionate cost. The review was commissioned, not by
the government, but by the Master of the Rolls, who acknowledged that there was concern about
the costs of civil litigation. The review commenced in January 2009 and its findings are due to be
presented in December 2009. In the first phase of the review, Lord Justice Jackson received
written submissions and attended meetings with representative bodies, identified the issues for
consideration and set out the relevant factors and competing arguments. The second phase is
consultation and the third phase is preparation of the final report.
The preliminary report noted that, in the last decade, there have been mounting concerns about
the costs of civil justice. Part 4 of the preliminary report considers how litigation is funded and
notes that during Phase 2 Lord Justice Jackson will look at, amongst other things, the question of
whether solicitors and counsel should be permitted to act on contingency fee agreements and if
contingency fee agreements are permitted, what form of regulation should be imposed.
The consultation phase is open to 31 July 2009 (costs.review@judiciary.gsi.gov.uk). Seminars
organised by the Master of the Rolls for the purpose of discussing the costs review will be held on
19 June in Cardiff, 26 June in Birmingham, 3 July in Manchester and 10 July in London. During
the third phase, Lord Justice Jackson will draft the final report. The report will make proposals for
the reform of civil procedure and costs rules in order to promote access to justice and
proportionate cost.
Mesothelioma and low dose asbestos exposure
In Sienkiewicz v Greif (UK) Ltd (unreported, Liverpool County Court, 25 November 2008), HHJ
Main found in favour of the defendant in a mesothelioma case. The defendant, in breach of duty,
had exposed the claimant to a low level of asbestos. The judge held that the appropriate test of
causation was not the Fairchild exception (material contribution to the risk) but, since there was
only one occupational exposure, was the ordinary ‘but-for’ test. The claimant failed to show that
occupational exposure rather than environmental factors caused the mesothelioma.
Sienkiewicz has been appealed. The hearing at the Court of Appeal took place on 30 June and 1
July 2009. The judgment is not expected to be handed down before the end of July.
Employers’ Liability Policy Trigger Litigation
In the EL Policy Trigger Litigation [2008] EWHC 2692 (QB), Burton J held that, in mesothelioma
claims with a sustained/contracted policy wording, the policy would respond on a causation basis.
Therefore the EL policy in place at the time of negligent exposure would respond rather than the
one in place when the tumour started to develop or when symptoms manifested.
The EL Policy Trigger Litigation has been appealed. The hearing at the Court of Appeal is
currently scheduled for 11 or 12 November 2009.
Pleural plaques
25
The Damages (Asbestos-Related Conditions) (Scotland) Act came into force on 17 June 2009.
The Act only applies to Scotland.
The Act applies to:
i)
ii)
iii)
Asbestos-related pleural plaques.
Symptomless asbestos-related pleural thickening; and
Symptomless asbestosis.
The Act provides a cause of action for damages for any of these conditions where a claimant has
been negligently exposed to asbestos. No proof of injury or disability is required. The Act also
stops the limitation clock from running for the period between the date of judgment in Johnston v
NEI International Combustion Ltd (17 October 2007) and 17 June 2009; this period will not count
in the calculation of the three-year limitation period.
The Act has potentially far-reaching implications. For example, its effect on tort liability in general
is uncertain; it might encourage forum-shopping (English litigants seeking to bring their claims in
Scotland); and its financial ramifications are uncertain. Several insurers have applied for judicial
review of the Act.
The Industrial Injuries Advisory Council’s position paper on pleural plaques was published on 30
June 2009. The paper recommends that pleural plaques should not be added to the list of
prescribed diseases compensated under the Industrial Injuries Disablement Benefit Scheme.
The Industrial Injuries Advisory Council (IIAC) is a statutory body which provides advice to the
government on matters relating to the Industrial Injuries Disablement Benefit (IIDB) Scheme.
Pleural plaques are described in the position paper as discrete localised areas of fibrosis with a
basket-weave type appearance which typically affect the lining of the inner chest wall. The IIAC
conducted extensive research including a review of 75 key research papers and consulted with
leading experts in respiratory medicine and asbestos-related diseases. It noted that one expert
suggested that as a many as 36,000 to 90,000 people a year may be developing pleural plaques.
The paper states that plaques are the commonest manifestation of asbestos exposure, generally
appearing 20 to 40 years after first exposure. The IIAC did not recommend prescription of pleural
plaques when it considered this issue in 2005 (Cm 6553) because plaques rarely give rise to
significant impairment of lung function and so are unlikely to cause compensable damage within
the terms of the IIDB scheme. The present position paper supports this position and the IIAC
continues to recommend against prescription of pleural plaques either for physical or
psychological disability.
Damages (Asbestos-related conditions) Bill
Andrew Dismore MP’s private members’ bill, Damages (Asbestos-related conditions) Bill
completed its committee stage in the house of Commons on 1 July 2009. The Bill’s reporting
stage is scheduled for 16 October 2009.
Key areas
i)
ii)
the bill would make asbestos-related pleural plaques a personal injury constituting
actionable damage.
asbestos-related asymptomatic asbestosis and pleural thickening would also be made
actionable personal injuries.
A person suffering from pleural thickening or asbestosis would not have to prove that the
condition impaired his physical condition to claim damages on the basis of personal injury.
26
Employers’ Liability Insurance Bureau Bill
Andrew Dismore MP’s private members’ bill, the Employers’ Liability Insurance Bureau Bill was
presented to Parliament on 26 January 2009. It is scheduled for second reading in the House of
Commons on 16 October 2009. The bill provides for the creation of an employers’ liability
insurance bureau comprising an electronic database and a compensation scheme for cases
where an employer has become insolvent and it either had no EL insurance or the insurer cannot
be traced.
Manual handling
The HSE has provided guidance on labelling of loads which provides additional advice on how
this part of MHOR applies to various kinds of work. Regulation 4 of the Manual Handling
Operations Regulations (MHOR) requires employers to provide information about the weight of
loads. The Regulations require that an employer should, as far as reasonably practicable, avoid
the need for employees to carry out manual handling operations which involve a risk of injury. If
this is not reasonably practicable, the risks to employees of the manual handling operations
carried out in the normal course of work should be assessed and reduced as far as is reasonably
practicable. However, after prevention and control measures have been taken, some loads may
remain whose weight creates a risk of injury to employees. In such situations, Regulation
4(1)(b)(iii) of MHOR requires employers to take appropriate steps to provide general indications
and, where it is reasonably practicable to do so, precise information on the weight of each load
and the heaviest side of any load where the centre of gravity is not positioned centrally.
Where it is reasonably practicable to give precise information, such information would include
giving information that will help to prevent injury – such as the weight of the load to the nearest
kilogram. The purpose of providing information about weights is to warn handlers when a load is
heavy. Where it is not reasonably practicable to give precise information it would be sufficient for
the employer to provide general indications about the weight (and heaviest sides, if applicable) of
the typical kinds of loads to be handled in a job. This can be done in various ways, eg through
training and wall charts.
Guidance can be found at www.hse.gov.uk/msd/labellingloads.htm
Cardiovascular risks and long-haul flights
The European Society of Cardiology (ESC) has reaffirmed its advice on cardiovascular risks
associated with long-haul flights. Studies cited by The Lancet suggested that the risk of venous
thromboembolism (VTE) increases when the duration of the flight exceeds four hours. This raised
risk is related to immobility, dehydration, and reduced oxygen in the cabin, as well as to individual
risk factors such as obesity, recent surgery and predispositions to thrombosis. Press release
available at www.escardio.org/Pages/index.aspx
Nanotechnology and food safety
The European Food Safety Authority (EFSA) has published an opinion on the potential risks in
relation to food and feed arising from nanotechnology.
Following a request from the European Commission, the EFSA was asked to provide a scientific
opinion on potential risks arising from nanoscience and nanotechnologies on food and feed
safety. The opinion addressed engineered nanomaterials (ENMs). Food and feed were
considered together. Nanotechnologies have been described as offering a variety of possibilities
in the food and feed area including in production and processing, to monitor food quality and
freshness, to modify taste and for enhanced nutrient absorption. Food packaging makes up the
largest share of current predicted markets.
Current uncertainties for risk assessment of ENMs and possible applications in the food and feed
27
industries arise because of limited information. For example, it is difficult to characterise, detect
and measure ENMs in food and feed and information is limited in relation to certain aspects of
toxicology. Knowledge of current levels of use and likely exposure from possible food and feed
applications is also limited. The risk assessment paradigm (identify the hazard, characterise it,
assess exposure and characterise risk) is considered applicable for ENMs. The report considered
that it is most likely that different types of ENMs vary as to their toxicological properties. The
available data on oral exposure to specific ENMs and any consequent toxicity is extremely
limited.
The Scientific Committee recommends that additional research and investigation is needed to
address the many current uncertainties and data limitations. Recommendations included that
action should be taken to develop methods to detect and measure ENMs in food and feed and in
biological tissues, to survey the use of ENMs, to assess the exposure in consumers and
livestock, and to generate information on the toxicity of different ENMs.
See Scientific Opinion of the Scientific Committee on a request from the European Commission
on the Potential Risks Arising from Nanoscience and Nanotechnologies on Food and Feed
Safety, EFSA Journal (2009) 958, 1-39. Report available at:
www.framingnano.eu/index.php?option=com_content&task=view&id=115&Itemid=40
Control of Substances Hazardous to Health (COSHH)
The HSE’s COSHH website has been relaunched.
The use of chemicals or other hazardous substances at work can potentially cause a variety of
diseases such as asthma, dermatitis or cancer. The COSHH Regulations require employers to
control substances that can cause harm to workers’ health. COSHH applies to chemicals,
products containing chemicals, fumes, dusts, vapours, mists gases, biological agents (eg the
germs which cause legionnaires disease) and asphyxiating gases. Employers can prevent or
reduce workers’ exposure to hazardous substances by, for example:
i)
ii)
iii)
iv)
v)
vi)
Identifying health hazards.
Undertaking a risk assesment to help in deciding how harm to health can be prevented.
Providing control measures to reduce harm to health and making sure they are used.
Keeping all control measures in good working order.
Providing information, instruction and training.
Providing monitoring and health surveillance where appropriate.
The HSE site also contains a COSHH Essentials web tool to assist in assessing risks. Visit
www.hse.gov.uk/cossh/index.htm
Swine flu
The HSE has issued guidance for employers on swine flu. The HSE advises that employers and
employees should always practice good personal hygiene measures such as using a disposable
tissue to control coughs and sneezes, disposing of it appropriately and washing hands before
eating and drinking. In addition, staff should be advised to stay at home if they are sick with flulike symptoms and have good reason to believe, based on Health Protection Agency (HPA)
guidance, that they may have been exposed to the swine flu virus. Information can be found on
the HPA website: www.hpa.org.uk
Assessment tool for repetitive tasks
The HSE has published a research report on the development of an assessment tool to assist in
the prevention, control and management of work-related musculoskeletal disorders (WRMSD).
The Manual handling Assessment Charts tool (MAC, Monnington et al, 2002) is designed to
identify and help assess high-risk manual handling operations such as lifting, lowering and
28
carrying. However, its scope is limited to manual handling of heavy items, which primarily present
a risk of lower back disorders. Demand existed for a similar tool to screen more frequent handling
of light loads or other repetitive tasks which may contribute to upper limb disorders (ULDs). This
led to the development of the assessment of repetitive tasks (or ART) tool. The report is available
at: www.hse.gov.uk/research/rrhtm/rr707.htm
Lower limb musculoskeletal disorders
The HSE has pubished a research report examining the nature and extent of workplace lower
limb musculoskeletal disorders and injuries and their causes. The report noted that there is
evidence that kneeling, squatting, climbing stairs or ladders, heavy lifting, walking and standing
and slips and trips hazards may be causal risk factors for workplace lower limb musculoskeletal
disorders. The report recommended that further research work is needed to clarify the
relationship between injury and pain at different regions of the body, to provide more detailed
measures of workplace risk exposures, to explore the benefits of exercise regimes and coping
programmes for those with a condition and to identify strategies to aid increased awareness of
the problem. See www.hse.gov.uk/research/rrhtm/rr706.htm
Hand-arm Vibration Syndrome
The HSE has published a report reviewing the literature published since 2004 which is potentially
relevant to a diagnosis of Hand-arm Vibration Syndrome (HAVS). The report notes that the
diagnosis of HAVS is heavily dependent upon self-reporting of symptoms. For a number of
reasons, this self-reporting may not be accurate. For example, individuals may be unable to recall
symptoms or may misunderstand or misidentify symptoms. Techniques that could be used to
obtain better information, or tests that could be applied to obtain a more accurate diagnosis may
be useful. In 2004, the Faculty of Occupational Medicine published a review of clinical testing and
management of individuals exposed to hand transmitted vibration.
The report’s objectives were:
1
To review tools used in individuals with HAVS, or other diseases of the circulatory or
nervous systems.
2
To review laboratory based tests used in individuals with HAVS or other diseases of the
circulatory or nervous systems.
3
To investigate whether there are any tests which might be useful in identifying other
disorders that could be confused with HAVS.
The main findings and recommendations included:
29
1
The Disability of the Arm, Shoulder and Hand (DASH) questionnaire consisting of 30
individual questions was considered. Identifying questions which could be incorporated
into standard HAVS screening or diagnostic questionnaires to assess problems with
manual dexterity would be useful.
2
The Evaluation of Activities of Daily Living (EDAQ) questionnaire as also been used in
HAVS but not as widely as DASH. It may be beneficial to investigate the usefulness of
this questionnaire further for use in HAVS.
3
Questionnaires specifically relevant to Carpal Tunnel Syndrome (CTS) are available. The
report noted the difficulty of the differential diagnosis of HAVS and CTS.
4
The report considered that the musculoskeletal component of HAVS is the most poorly
defined and studied area. This component appears to be a strong determinant of upper
limb disability in HAVS cases and further investigation would be useful.
5
The report noted that there is still limited information regarding the usefulness of nerve
conduction studies in HAVS. Diagnosis of CTS where there is a background of HAVS is
difficult. It has been suggested that this may be possible using nerve conduction
measurements and new techniques of analysis. Nerve conduction studies may also
assist in the diagnosis of Thoracic Outlet Syndrome, which can be confused with HAVS.
6
New techniques involving the delivery of substances through the skin to provoke changes
in blood flow have been shown to be useful in diabetic neuropathy and may be useful in
HAVS diagnosis. They may also assist in differential diagnosis between HAVS and
conditions that may be confused with HAVS (such as primary Raynaud’s).
7
Laser Doppler technology may be useful in diagnosing the vascular component of HAVS.
Doppler techniques may also assist in discriminating between HAVS and conditions
which may be confused with it.
8
The report noted that other new techniques, such as measuring changes in gene
expression, are being developed and may be useful in the future.
Report available at: www. www.hse.gov.uk/research/rrhtm/rr711.htm
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Disease review is published by the marketing department of Berrymans Lace Mawer (Castle Chambers, 43
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© Berrymans Lace Mawer LLP 2009.
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Richard Clarke
Toby Scott