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Peter Barrie: Personal Injury Law 2/e: Liability, Compensation, and Procedure

Updates to Introductory Chapters

Updates to Introductory Chapters

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Deafness
Chapter d.A

Harris v BRB Residuary [2005] EWCA Civ 900 [2006] PIQR Q101

The claimant was exposed to noise during his work as a train driver. The finding was of exposure to noise above 85 dB(A) leq, the first action level, but below 90 dB(A) leq, the second action level. The claim succeeded in the Court of Appeal. It cannot be assumed that liability arises only on exposure above 90 dB(A) leq. There could be a breach of a duty of care on exposure above 85 dB(A) leq and in this case the evidence showed that the employer had perceived a risk, against which it was practicable to protect employees, from 85 dB(A) leq exposure and on the facts a breach of duty was proved.

[Added May 2007]
Paragraph d.17

There are new Control of Noise at Work Regulations 2005 SI 2005/1643 which come into force on 26 April 2006, replacing the 1989 Regulations.

RSI/WRULD claims
Chapter d.B

Denton Hall v Fifield [2006] EWCA Civ 169

An illustration of a successful claim for WRULD by a secretary, where the liability issues were essentially matters of fact and the case is reported more for the comments made on the use of medical records for cross examination.

Vibration White Finger
Chapter d.C paragraph d.69

Brookes v South Yorkshire Passenger Transport Executive and another [2005] EWCA Civ 452

The claimant was employed as a fitter from 1982 and used vibrating tools during his employment. VWF was diagnosed in 1999.

The judge held that the employer should have been aware of the risk throughout the claimant's employment as a result of the 1975 publication of a paper DD43 by the British Standards Institute. The defendant contended for knowledge only upon the publication of HSE advice in 1994. On the defendant's appeal, the Court of Appeal held that awareness of the 1975 publication was not sufficient to give constructive knowledge, but the employer should have had knowledge of the risk from 1989 as a result of the 1987 publication BS 6842:1987 by the Institute of a paper which promulgated the British standard and gave detailed advice. By this time VWF was a prescribed industrial disease. Thus the employer was only liable in negligence for the exposure of the claimant to vibration that occurred from 1989.

However, the delay in the onset of the claimant's symptoms suggested that he would never have developed any symptoms if it had not been that the employer's negligence. He suffered no symptoms at all until ten years after 1989. Symptoms are dosage-related and if there had been no exposure during the period when exposure was negligent he would never have suffered any symptoms. He therefore recovered full damages in spite of the finding that only part of his exposure had been negligent.

Rugby Joinery v Whitfield [2005] EWCA Civ 561 [2006] PIQR Q40

An illustration of the apportionment of a VWF clam that is necessary where there has been some non-negligent exposure to causative vibration.

[Added May 2007]
There are new Control of Vibration at Work Regulations 2005, SI 2005/1093, which come into force on 6 July 2005, but with a delay until 6 July 2010 for work equipment which was first provided before 6 July 2007.

[Added May 2007]
Dermatitis
Chapter d.D, Paragraph d.85

There are new COSHH Regulations 2002 (Control of Substances Hazardous to Health) SI 2002/2677 which replace the 1999 Regulations.

Occupational diseases
Chapter d.F

Lung disease

Rothwell v Chemical and Insulating Co [2006] EWCA Civ 27

The development of pleural plaques as a result of asbestos exposure, causing no symptoms sufficient to found a cause of action but demonstrating a risk of future disease and causing anxiety as a result, does not fond a claim in negligence (overruling the first instance decision reported as Grieves v Everard).

While this decision is disappointing for claimants who have pleural plaques, it does on the other hand mean that it is not necessary for a claimant diagnosed with asymptomatic pleural plaques to start proceedings and claim a provisional award in order to meet a future problem of limitation.

Limits of Fairchild

Barker v Corus (UK) Ltd [2006] UKHL 20, [2006] 2 WLR 1026

This important House of Lords decision has (1) confined the decision in Fairchild to its specific facts where it is impossible to prove that the defendant's wrong caused injury because of an alternative possible cause of the same risk, so it does not provide a wide or general basis for pursuing claims for loss of chance, (2) proposed that a defendant's liability should be apportioned according to his contribution to the risk and (3) held that that the liability of a defendant under Fairchild is several rather than joint so that a defendant is liable only for his own contribution to the claimant's total risk of illness.

For cases of mesothelioma, the effect of Barker has been reversed by section 3 of the Compensation Act 2006, and the full effect of Fairchild has been restored, but the principles of Barker may still be relevant to other situations where a disease has a single causing event but there have been several different exposures to the risk.

Asbestos disease from secondary exposure

Maguire v Harland & Wolff 26 Jan 2005 Times 27 Jan

The employer of a man who worked with asbestos was not liable for the employee's partner's secondary exposure between 1961 and 1965 which caused her to develop mesothelioma, because it was not known at that time that there was no safe level of exposure. The approach appears somewhat in conflict with Margereson v Roberts [1996] PIQR P358 where the neighbours of a factory overcame the defence argument about exposure before 1933 and the CA held that there should have been awareness of the risks of exposure long before 1925.

Chapter d.G

Stress at work

Simmons v British Steel [2004] UKHL 20

The approach to causation of Page v Smith was confirmed and applied to a case where the claimant suffered physical injury in an accident at work which was followed by aggravation of a pre-existing skin condition and a severe depression, caused mainly by his anger at the way the employer had treated him. Emotional reactions such as anger, distress and fear do not sound in damages but can lead to other conditions for which damages can be awarded. It was enough that one of the causes of the anger arose from the accident, the anger made a material contribution and causation was established.

South Essex Mental Health NHS Trust v Hartman [2005] EWCA Civ 6, [2005] PIQR P255

This case was the hearing of six appeals on liability for psychiatric illness caused by stress at work, seeking to clarify the application of the Hatton guidelines. The main thrust of the decision is to emphasize that liability arises from a foreseeable injury flowing from the employer's breach of duty. If the employer has no knowledge of vulnerability of the employee, then the existence of stress coupled with a breach of duty will not be enough to give liability. On the other hand where the employer had actually foreseen that certain traumatic events at work might lead to psychiatric injury, the employer was not excused from liability by the fact that the individual employee had not shown signs of impending harm.

Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34

The claimant was bullied, harassed and intimidated by his manager during his employment. Held, that the employer was vicariously liable for the employee's breach of s. 1 of the Protection from Harassment Act 1997.

Garrod v North Devon NHS [2006] EWHC 850

A first instance decision where a claim for psychiatric injury caused by stress succeeded where the claimant had had a previous six month absence caused by overwork and explicit warnings of the risk to the claimant's health if help was not provided.

Green v DB Group Services [2006] EWHC 1898

A first instance decision where a claim for psychiatric injury succeeded mainly on the ground that the employer was vicariously liable for bullying contrary to the Protection from Harassment Act 1997 (see also Mejrowski on this point).

Sayers v Cambridge County Council [2006] EWHC 2029

A first instance decision where a claim for psychiatric injury caused by stress was dismissed because injury was not reasonably foreseeable. It was also held that breach of the Working Time Regulations 1998 does not give a civil remedy for damages.