Health and Safety case law: damages
Employment lawyers in Clifton, Bristol, have summarised the leading cases in this area as follows:
Exacerbation of pre-existing condition
Simmons v British Steel plc (2003)
S was employed by B as a burner in a steelworks. He fell from a table in the workplace and suffered a severe blow to his head. This resulted in his ear suppurating, blurred vision and headaches. He claimed that the incident had exacerbated a pre-existing skin condition and had caused mental deterioration including depression. S had not worked since the accident and claimed compensation from B. At first instance, the Scottish court ruled that B had been at fault but that, in relation to causation, S’s conditions had probably been caused by anger at B’s treatment of him after the incident. Compensation was therefore limited to the immediate physical consequences of the incident. S appealed.
The decision on appeal was as follows:
The appeal was allowed.
The real issue related to the conclusions to be drawn from evidence which was either undisputed or plainly established.
The reasons given by the court below were unsatisfactory. The court had not clearly explained why S had been unable to prove that his condition was caused by the incident.
The evidence, looked at as a whole, presented a coherent picture of a causal link between the incident and S’s condition in both psychiatric and dermatological aspects.
B had to take S as it found him, despite the fact that a more psychologically robust individual might have recovered from the incident, despite displaying a dermatological or psychiatric condition.
This case illustrates the importance of the concept of causation in relation to claims for compensation for injuries caused in the workplace. Claimants who allege negligence on the part of their employers must establish the existence of a duty of care, breach of that duty, resulting damage and that the damage was in fact caused by the breach of duty. In most cases, this will be self-evident.
Mistake as to identity of employer
Cressey v E Timm & Sons Ltd (2005)
C, a forklift truck driver, was injured at work in December 2000 when a pallet struck his leg, fracturing it. His employer was E Timm & Son Holdings Ltd (Holdings) but his payslips were in the name of an associate company, E Timm & Son Ltd (Ltd).
By March 2001 C’s solicitors had sent a letter of claim to Ltd, which were thought to be C’s employers. The company’s insurers replied on April 30, 2001, identifying their insured as Holding.
In April 2001 C was made redundant by a letter in the name of Ltd. At that time, both C and his solicitors continued to think that Ltd was his employer. On March 30, 2004, C’s solicitors brought proceedings naming both Holding and Ltd as defendants.
The issue was whether the date of knowledge when C first had knowledge of the identity of his employer was the date of the workplace accident or the date when he first became aware of the existence of Holding. This was April 30, 2001, and meant that the three-year limitation period still had one month to run.
The judgment of the Court of Appeal, in summary, was as follows:
In most cases of an accident at work, the employee would then and there have knowledge of the employer’s identity.
In a minority of cases where the identity of the employer was uncertain, or wrongly stated to the employee as in the present case, the date of knowledge would be postponed for so long as it reasonably took to make and complete appropriate inquiries.
There is no need, for there to be a lack of relevant knowledge, for the employer to be in breach of duty or deliberately attempting to deceive the employee or keeping him in the dark. It is sufficient that the employee is deprived of the knowledge which he needs by being misinformed.
In the present case, C was misinformed and he had no reason to think that any other company than Ltd could be his employer until, at the earliest, April 30, 2001.
Credibility of claimant
Owens v Redpath Offshore (South) Ltd (1998)
O was awarded £200,000 damages against R Ltd as the result of an accident at work when he struck his head on scaffolding, causing a neck injury. R Ltd appealed, arguing that O had told so many lies in his CV and in job applications that his claim for compensation should have been dismissed. R Ltd also sought to bring fresh evidence that O continued to use false CVs.
The appeal was dismissed. The judge at first instance had known about O’s use of false CVs but the judge had relied on contemporary reporting of O’s accident and on the evidence of a colleague.
The work which O had obtained since the accident was of the type which the judge had predicted. It was not the heavy fixing work which he had previously done.
Loss of congenial employment
Champion v London Fire and Civil Defence Authority (1990)
C, a firefighter, fractured his wrist in a fall in the kitchen of Surbiton fire station. A colleague had dropped some eggs and C slipped on them. As a result of the injury he was discharged from the fire service. He claimed compensation from his employers for loss of congenial employment because he had lost job satisfaction as a result of his discharge from the fire service.
The claim succeeded. C had suffered a significant loss of job satisfaction and should be awarded damages for such loss.
Chance of condition worsening
A provisional award of damages can be made where the parties agree that such an award is appropriate and that there is a chance of the claimant’s condition worsening in the future.
Hurditch v Sheffield Health Authority (1988)
H was exposed to asbestos at work during two periods. The first was during employment by the Royal Navy between 1957 and 1972. The second was when employed by SHA. It was accepted that his condition, asbestosis, was mainly due to the first period but was also referable to his current employment. The parties did not agree as to the type of asbestos to which H had been exposed, or the risk of his condition worsening. At first instance the court refused to make a provisional award of damages. H appealed to the Court of Appeal.
That Court stated that there should be judgment for H of £2500 as provisional damages with an order, unlimited as to time, providing for him to seek further damages in relation to a serious deterioration in his condition. The fact that not all matters had been agreed between the parties did not prevent the court making the provisional award.
Risk of serious further deterioration
Prentice v William Thyne Ltd (1989)
A 30 year old forklift truck driver suffered a fracture of his femur with consequent restrictions on movement of his hip joint and a possible deterioration in his condition.
The Scottish court found as follows:
The worsening of the claimant’s condition might be a certainty rather than a risk, but his condition already existed. Any further worsening would be difficult to categorise as a serious deterioration and thus the action was not a proper one for a provisional award.
If the claimant was going to develop serious deterioration in his right hip, then that might be said to be a risk that such would happen.
The deterioration in this case would be a worsening of the condition from which the claimant currently suffered and not the development of some new condition.
TRIAL BY JURY
Trial by jury of a personal injury claim may be appropriate in an exceptional case where, for example, personal injuries have resulted from conduct on the part of those deliberately abusing their authority, and there is a claim for exemplary damages, that is, damages awarded to punish a defendant rather than to compensate for damage actually suffered/
H v Ministry of Defence (1991)
H was a serviceman who suffered from an abnormality of the penis. He sought advice from the MOD’s medical services. As a result of investigative procedures in hospital his penis became infected and had to be partially amputated. He claimed compensation from the MOD and an order that the action should be tried by a judge and jury. At first instance it was ruled that there was a judicial discretion to order jury trials in personal injury actions in exceptional cases. The MOD appealed to the Court of Appeal.
That Court allowed the appeal. It stated that trial by jury was inappropriate in personal injury cases except in exceptional circumstances. Where compensatory damages were to be assessed, such assessment was made by reference to conventional scales known to a judge but not a jury. Although, in the present case, the claimant’s injuries were unusual and traumatic, assessment of damages should nevertheless be in conformity with the conventional scales.
Further, in retaining a judicial discretion for exceptional cases, Parliament was not to be taken as having necessarily contemplated that such cases would arise in the context of personal injury actions. The claim was not exceptional so as to justify an order for trial by judge and jury.