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Personal Injury Update

Published September 2014

Personal injury cases / incidents / regulatory developments and prosecutions

MATERIAL RISK CREATED BY EMPLOYEE

Polyflor Ltd v HSE – Broken arm injury [2014] EWCA Crim 1522

In February 2013, Polyflor Ltd ("PL"), was convicted of failing to ensure the health and safety of its employees, contrary to section 33(1)(a) of the Health and Safety At Work Act 1974 ("the Act"). This was despite a careless action by the injured employee. PL appealed the conviction but it was dismissed on 18 July 2014.

Facts: An employee broke his arm which had become caught in a machine he was checking for a blockage. Access to the rollers in the machine was prevented by guards when running normally, but to clear any blockage, the guards had to be removed.

The employee had been given permission to work without the guards, but he admitted he had been "foolish" in the way he had used a spanner whilst the machine was running. It became caught and he could not let go in time.

PL argued that the HSE's evidence did not support the prosecution: if someone is going to do "something stupid", as noted by an HSE expert, there is little that can be done to prevent an injury. The accident was, therefore, the employee's fault, not caused by any breach of duty by PL.

PL argued that as a result there was no case to answer. HHJ Hale considered the submission but took the view that the case should be put to the jury. There was a risk to an employee working on the unguarded machine.

PL were convicted and fined £7,500 plus £34,000 costs. They appealed on the basis that HHJ Hale had used the wrong test and the case should not, therefore, have been left to the jury.

The Appeal panel disagreed with PL's submission that no material risk had been established by the prosecution (the HSE). The prosecution "only had to adduce some evidence of exposure to risk ….[to show that] an employee was …exposed to a possibility of danger. Once that is established the onus shifts to the Appellant to show, on a balance of probabilities that it did all that was reasonably practicable to ensure its employee was … not exposed to such risk".

The outcome may have been different if PL had adduced some evidence that they had considered other ways of resolving problems with this machine, even if ultimately there were few other alternatives. The judgment noted that "a jury is more likely to be persuaded that an employer has probably done all that could reasonably have been done to obviate an obvious risk if it adduces a positive case that other options have been considered .."

Whilst this case was prosecuted by the HSE, it could equally be applied to an Maritime and Coastguard Agency ("MCA") scenario where criminal sanctions are sought against port authority employers/owners for unsafe working environments in UK ports involving, for example, injuries to stevedores.



WORK STRESS CLAIM

Emilia Olulana v Southwark LBC [2014] EWHC 2707 (QB) – 19 June 2014

This case involves a council employee, but the issue of work stress triggering, or exacerbating, a mental health disorder is relevant to the shipping industry as a whole.

The claimant was a senior account manager, employed in three different departments from 1999 until she left almost a decade later. She was hard-working but did not excel in her role. This led to frustrations including a suspension in 2003 for incorrect working. At that time she began to experience delusions which were symptoms of a mental illness. The claimant was not aware of this and believed at that time that she was capable of work.

As a first step it was crucial to establish the employee's underlying condition and identify the trigger for the injury/illness. The facts as to what the employer knew, or ought to have known, could then be applied. Only after that could decisions be made by the court as to whether the illness was "materially contributed to by events that were mainly stress".

The key test in considering whether an employer has been negligent, set out in Stokes v Guest Keen & Nettlefold (Bolt & Nuts) Ltd [1968] 1 WLR 1776, is essentially:-

"…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; …..He must weigh up the risk in terms of the likelihood of injury occurring and potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve".

In short, if the employer cannot demonstrate that he met these standards, then he will be negligent.

Whether the injury/illness was foreseeable is important and depends on what the employer knew or ought to have known. However, the judge relied on guidance in Sutherland v Hatton [2002] EWCA Civ 76 which states that the "employer is generally entitled to take what he is told by the employee at face value".

The first significant entry in the claimant's occupational health notes was in 2009. There is reference to "the stress of trying to cover so many duties is beginning to have an effect on her health." However, the claimant maintained that all was well but from January 2010 to 2012 her delusions and sense of persecution were increasingly worse at work and at home.

The judge found that the employer was not aware that their employee had a mental illness and when she started to have difficulties, referred her directly to occupational health. She was reviewed and they liaised with her GP. He held that they had taken 'exemplary' care of her.

Held: The claimant did not prove, on the balance of probabilities, any causative factor and therefore the claim failed.

Our assessment of this case is that the defendant's success hinged on a good audit system which demonstrated that they had identified and discharged their duty of care to the claimant. Effective retention of evidence is crucial in these cases as is seeking early and specialist legal advice from the start, particularly if a civil claim for damages is anticipated.



AMENDMENTS TO UK MERCHANT SHIPPING REGULATIONS TO IMPLEMENT MLC FOR SELF-EMPLOYED SEAFARERS

The Merchant Shipping (Maritime Labour Convention) (Health and Safety) (Amendment) Regulations 2014 is a new provision which will come into force on 13 October 2014. It is one of a series of instruments which is gradually bringing UK law into line with the Maritime Labour Convention 2006. According to the explanatory memorandum, this regulation "extends health and safety duties to self-employed seafarers, introduces new duties to report occupational diseases to the Secretary of State".

The employer pleaded guilty to breaching Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 ("PUWER") by failing to provide any safety guards on the industrial-size 'rig saw' the worker was using to cut logs in one of the mills on 12 June 2012.There is also a requirement to take account of published statistics on health and safety when conducting a risk assessment and also makes a small amendment to the criteria for the creation of a safety committee on UK ships. It is not anticipated that these amendments will have a significant practical impact on ship owners, or even most seafarers, as they mainly reflect current best practice.

To access the full Statutory Instrument (SI: 2014 No.1616) please click here.



OTHER ARTICLES IN THIS ISSUE

Mesothelioma Act 2014 update

The Maritime Labour Convention 2006: one year on and is the pressure building for PSC?

Part 36 offers: pitfalls for defendants

Recent personal injury cases / incidents /regulatory developments and prosecutions






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