Health and safety cases: General health and safety terms - Part 1
Back injury caused by repeated lifting of patients
Mullen v Secretary of State for Work and Pensions (2002)
M was employed as an assistant care officer in a home for the elderly. As a result of the repeated lifting of patients over a number of years, she suffered from back pain which made her unfit for work. She applied for industrial injuries benefit. An adjudication officer and a social security appeal tribunal ruled that her injury had resulted from a gradual process and was not an “accident”. She applied to a Scottish court for leave to appeal against the decision. The court ruled in her favour and stated that a back injury sustained while handling a patient was an “accident”. Where there was a series of accidents, an applicant was not disqualified only because she could not identify which one caused or contributed to the condition.
Deep vein thrombosis
In re Deep Vein Thrombosis and Air Travel Group Litigation (2003
A total of 55 passengers brought a group litigation claim against a number of international air carriers. Each claimant had suffered deep vein thrombosis (DVT) which resulted in serious injury or death, allegedly caused by cramped seating conditions and a failure to warn of the danger posed by the flight or to advise of the appropriate steps to minimise or eliminate the dangers. The High Court made the following points: * A culpable act or omission by an air carrier in failing to warn its passengers of the risk of DVT and in failing to provide less cramped seating, was not an “accident”.
“Accident” means an unexpected or unusual event or happening. In the present case, each flight was normal and unremarkable and complied with all applicable aviation regulations.
The claimants appealed to the Court of Appeal. That court dismissed the appeal and stated the following:
A non-event could not be an “accident”.
The alleged failure of international air carriers to warn passengers against the risk of DVT as a result of normal flights operated under normal procedures and conditions, or to advise passengers how to minimise that risk, and the provision of cramped seating which was an integral and permanent feature of aircraft, were not events which were capable of constituting an “accident”.
Inaction itself could never properly be described as an accident. It was not an event, it was a non-event, the antithesis of an accident.
Fire officer attending incidents
Chief Adjudication Officer v Faulds (2000)
F, a former senior fire officer, suffered from post-traumatic stress disorder which arose from his work. This involved a number of years attending road accidents, air crashes and fires. F was awarded industrial injuries benefit on the basis that he had suffered personal injury by an accident arising out of and in the course of his employment. The Chief Adjudication Officer appealed against the award, arguing that F’s condition had not been caused by an “accident”. The matter eventually reached the House of Lords which ruled that the decision to award benefit should be set aside. It made the following points:
“Accident” means “an unlooked-for mishap or an untoward event which is not expected or designed. It may also mean “any unintended an unexpected loss or hurt”.
F had not been subject to “accidents” despite having been exposed to great stress in attending incidents. He was required to attend such incidents in the course of his employment.
Elms v Foster Wheeler Ltd (1954)
FW Ltd was under contract to install four steam powered electrical generators in a power station which was under construction. The shell of the building had been constructed. FW’s work was to complete the inner parts. This involved not only putting in the generating machinery but also providing all the ancillary pipework, floors, galleries and steel stairways around the generating plant. E, an employee of the company, fell from some steel joisting. If this had been a “building operation”, scaffold boards should have been provided. E claimed compensation for breach of statutory duty on the basis that the whole work was a building operation.
The court ruled that there is no hard and fast definition of “building” or “building operation”. It is clear that the word “building” encompasses a wide range of structures. Each case has to be judged on its own facts. But an employee who is contributing to, or taking part in, the construction of part of a building is engaged in building operations.
Open-air structures without roof or catwalk
McGuire v Power Gas Corpn Ltd (1961)
P Ltd was building a plant for the conversion of oil to gas by a catalytic process. The plant covered an area of 80 square feet and was 30 feet high. Besides the actual containers in which the conversion took place, the structure supported stairs, gangways, catwalks, ladders, stanchions and pipes. There was no roof and it had no sides. It did not resemble a conventional building in any way. M fell from the structure and claimed compensation for his injuries.
The court made the following points:
A structure containing plant may still be a building notwithstanding that it is an open air structure without roof or walls. The word “building” is not restricted to conventional forms of building.
After termination of employment
Fadipe v Reed Nursing Personnel (2005)
F raised health and safety concerns during his employment with R. He was dismissed and when he applied for a new job, R supplied a reference which stated that although F’s work had been satisfactory, it would not give him any further work. F complained to an employment tribunal that R had subjected him to a detriment for having raised health and safety concerns. His complaint was rejected on the basis that the alleged detriment had occurred after the end of F’s employment with R. F appealed on the ground that the relevant statutory protection extended to former employees.
The appeal was dismissed. A person who had raised health and safety concerns while still an employee was not protected from the former employer’s detrimental acts committed after the employee had ceased to be employed.
Jayne v National Coal Board (1963)
Safety measures in mining regulations were subject to the qualification that a lesser standard was acceptable if the normally required standard was “impracticable”.
A miner had been injured during underground shot firing. It was argued that, in contravention of the regulations, the shot firer had not personally checked that all men were clear of the danger areas. In defence of the employer it was argued that this was “impracticable”.
The court found that where legislation is made subject to the qualification that a lower standard is acceptable when circumstances make normal compliance “impracticable”, the employer is under a severe burden of proof. The word “impracticable” does not mean “physically impossible” but it does pose a high standard of proof that there were very good reasons for not taking precautions.
IN THE COURSE OF EMPLOYMENT
Tanker driver throwing down lighted match
Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942)
A petrol tanker driver lit a cigarette and threw the lighted match on the ground near the nozzle of the hose from which petrol was being pumped. The petrol ignited and caused a serious explosion. It was argued that he had not been acting n the course of his employment when he threw down the match. The House of Lords disagreed and ruled that he had been acting in the course of his employment.
Employee slipping on lubricant
Davidson v Handley Page Ltd (1945)
Just before her lunch break Ms D went to a water tap to clean her teacup. In the vicinity was a tank which contained lubricant for lathes. There were slatted duckboards on the floor. The area was slippery because of spillage of lubricant on the duckboards. As she was reaching for the tap, Ms D slipped and was injured. She claimed damages from her employer, alleging negligence arising from its failure to keep the area free from slippery substances. The employer argued that its liability ceased the moment an employee stopped actual work. It accepted liability for injuries which occurred while the employee was carrying out the employer’s work, it denied liability for any injuries which occurred while the employee was not working.
The court commented that the defence, if accepted, would give rise to extraordinary results. For example, if two employees were coming down from a scaffold, one to get a bag of nails and the other to go to the latrines, under this argument the one going to the latrines would not be protected. This was unacceptable to the common law.
The employer’s duty to take steps for the safety of its employees applies both during periods of actual work and while employees are carrying on activities incidental to their work.
These case summaries have been prepared by employment lawyers based in Clifton, Bristol.