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FACTS
In the UK there are on average more than 300 workplace deaths annually Work related illness is costing more every year now up to 18bn around 2.1% 2.6% GDP
OVERVIEW
Different areas of liability note different objectives Civil claims Health and safety at Work issues Other criminal matters
OVERVIEW
TORTIOUS LIABILITY
VICARIOUS LIABILITY
CRIMINAL LIABILITY
VICARIOUS LIABILITY
Liability for the wrongs of employees
Forbidden acts
CIVIL LAW
Civil liability Negligence and occupiers liability Br of stat duty Breach of contract
Criminal Law
Criminal liability Corporate manslaughter Health and safety offences Other criminal offences
CIVIL LIABILITY
Negligence duty breach damage Occupiers liability breach of OLA frequently brought by employees Breach of statutory duty more complex but useful for employees. Other claims breach of contract of employment and common law duties arising from it
PRIMARY LIABILITY
NON DELEGABLE DUTIES COMMON LAW DUTIES STATUTORY DUTIES IMPLIED IN EMPLOYMENT CONTRACTS
Ultra hazardous activities To provide proper plant and equipment Activities on or near a highway Safety duties To provide safe systems of work and related training To ensure the health, safety and welfare of employees Mutual duty of trust and confidence To pay wages
Work Stress
"Physical, emotional and mental strain resulting from the mismatch between an individual and his/her environment", which results from a three way relationship between demands on a person, that person's feelings about those demands and their ability to cope with those demandsStress is most likely to occur in situations where: demands are high; the amount of control an individual has is low; and, there is limited support or help available for the individual.
Bynoe G. Stress in women doctors. Br J Hosp Med 1994; 51(6): 267-8
Evidence
In a 2005 survey of 209,000 NHS employees, 36% said they were suffering from work-related stress, the same percentage as 2004, but lower than the 39% in 2003. In the NHS there is a sickness rate of around 11.6 days per employee, higher than the 10.7 average for public sector employees.
Junior Doctors
2004 study 2,727 responded, Of 1,047 junior doctors who were considering staying in medicine but practising outside the UK, 41% gave the main reason as poor working conditions. 279 doctors were seriously considering relinquishing medicine altogether, 75% of whom gave working conditions as their reason.
UCL Study
Study over 12 year period, investigated the same doctors when applicants to medical school or medical students. Concluded that approaches to work later in life could be predicted by study habits and learning styles at the point of application to medical school, and final year of medical education. Differences of approach to work and individual perceptions of workplace ethos appeared to reflect stable, long-term differences in the personalities of the doctors themselves. (McManus, IC, Keeling, A, Paice, E, Stress, burnout and doctors' attitudes to work are determined by personality and learning style: A twelve year longitudinal study of UK medical graduates, BMC Medicine 2004, 2:29 )
Case Law
Johnstone v Bloomsbury Health Authority 1992 Junior hospital doctor brought a claim for work stress suffered because of long working hours
Sutherland v Hatton 2002 CA The ordinary principles of employers liability apply to work related stress claims Signs of stress in a worker must have been obvious to the employer An employer who offers a confidential counselling service is likely to have a complete defence to a stress related claim by a worker An employer can usually assume that an employee can withstand normal job pressures (unless he knows of a particular problem or vulnerability)
Hartman v South Essex Mental Health and Community Care NHS Trust etc CA 2005
Six cases heard together by the Court of Appeal reemphasise that liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury. It is foreseeable injury flowing from an employers breach of duty which gives rise to this liability. The mere fact that an employee suffered stress at work and that the employer was in breach of duty in allowing that to occur does not mean that the employer is liable to the employee.
New Development
An employer can be liable in respect of an act of harassment committed by an employee in the course of his or her employment in breach of Protection from Harassment Act 1997 s.1 and the victim will be able to recover damages from the harassor's employer (under Protection from Harassment Act 1997 s.3) for anxiety caused by the harassment, and any financial loss resulting from it, even if there was no negligence on the part of the employer; and More generally, an employer can be vicariously liable for breach of a statutory duty imposed on his employee.
WHICH STATUTES?
Not the general duties under the Health and Safety at Work Act 1974 Regulations made under the Act Other statutes and regulations e.g. COSHH look for precedents Note the importance of statutory interpretation here. Everything depends on wording of statutory provisions
SOME EXAMPLES
Look for use of must and should Look for reasonably practicable Compare negligence claims with breach of statutory duty claims to find advantages for claimants
QUESTION ONE
Nurse Jones, an SEN of ten years experience, worked for Barsetshsire NHS Hospital Trust. She says that she never attended a course on lifting and that she knew about how to lift patients because by experience and watching other nurses.
Continued
One morning she tried to life Fred Smith, a stroke patient weighing 12 stone to move him further up the bed and make him more comfortable. She did this single handed, and as she did so she hurt her back, and had to sit down for an hour to recover. The incident was reported to the sister in charge but she was to busy to enter it in the accident book
Continued
Nurse Jones returned to work the next day because there were staff shortages, but the pain become much worse and at the weekend she was forced to stay in bed. Specialist medical advice confirms a serious back injury and that she will not be able to continue nursing. She has retired on grounds of ill-health and receives a disability allowance of 125 a month and income support.
continued
After 2 years Nurse Jones decides to sue her employer for damages. The medical experts agree that the injury she sustained was inevitable because of generative changes in her spine, that she could have suffered the same injury during some other activity such as shopping, and that at best she could have expected three years free of pain.
Continued
1. Explain the legal basis of Nurse Joness claim. 2. How would you advise her to fund the claim? 3. Is the claim likely to succeed? 4. How much do you think she will receive by way of damages if the claim succeeds?
Tort claims
Negligent exposure to smoke Breach of statutory duty - COSHH Regulations under HSW Act
Employment law
Discrimination claims arising from failure to impose smoking ban Constructive dismissal claims arising from imposition of smoking ban Protection from Harassment Act 1997 claims Majrowski v Guys and St Thomass NHS Trust 2006
LEGAL OPINION
A factory operates a no-smoking policy and either require employees to smoke outside the premises or provide a smoking room where this is considered necessary. It requires its employees to smoke outside the premises and the hospital grounds, by standing the street
continued
The Union says that it is dangerous for them to stand in the street, especially at night because they risk being mugged, and argue that it looks bad for staff to be seen in the street smoking cigarettes. The factory owners seek your advice as to whether they should allow employees to smoke on hospital premises perhaps by providing a shelter in the grounds.