Contents
Bullying and harassment stress claims: Impact of the Protection from Harassment Act 1997 2
Carbon monoxide poisoning claims: A review 5
Impact of the new Noise at Work Regulations 2005 9
Developments in HAVS claims 12
Call centre claims: A focus on NIHL and acoustic shock 14
Secondary exposure asbestos claims 17
Case by case: Applying the Hatton principles 19
Carpel Tunnel Syndrome and vibration exposure 22
Apportionment of HAVS claims 23
Bullying and harassment stress claims: Impact of the Protection from Harassment Act 1997
Introduction
Bullying or harassment stress claims are often seen as distinct from the usual work overload stress claims with an assumption that if there is a proven allegation of 'bullying' or 'harassment' then such behaviour is itself determinative of liability.
However, the same principles of liability which apply to work overload claims as set out by the Court of Appeal (CA) in Hatton v Sutherland & Others [2002] EWCA Civ 76 (generally re-affirmed by the House of Lords in Barber v Somerset County Council [2004] 1 WLR 1089) and recently followed by the CA in Hartman v South Essex Mental Health & Community Care NHS Trust [2005] EWCA Civ 6, also apply to bullying claims, namely did:
§ the alleged conduct by the alleged 'bullying' employee, give rise to a foreseeable risk of mental illness in that particular claimant at that particular time?
§ it in fact cause the claimant subsequent mental illness?
In other words the claimant still has to overcome the high evidential hurdles of foreseeability and causation to succeed. These hurdles serve as control mechanisms presently limiting success of stress claims - whether they arise from work overload or some form of bullying/harassment.
In the last few years it has become increasingly common for bullying claims to be framed not only in common law negligence but also in statute under the Protection from Harassment Act 1997. This act was originally conceived as a method of combating stalking but undoubtedly has a wider application. Under the Act a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other.
As well as harassment under the Act being a criminal offence punishable by imprisonment and/or a fine the perpetrator of such conduct can also be civilly liable in damages for any anxiety caused by the harassment and any financial loss resulting from the harassment.
There is no statutory definition given for harassment but it is generally considered to be conduct which is calculated to cause alarm or distress and which is oppressive or unreasonable.
The likely applicability of the Act to bullying claims and possible advantages it offers to claimants, was recently addressed by the CA in two separate decisions in Banks v Ablex Ltd [2005], EWCA Civ 173, 24 February 2005 and in Majrowski v Guy's & St Thomas's NHS Trust, [2005] EWCA Civ 251, 16 March 2005.
Banks v Ablex Ltd
The claimant was a factory supervisor who alleged she developed a depressive disorder after being subjected to harassment from a fellow employee between February 1998 - 14 October 1998 and in particular an incident on the 14 October where the conduct was:
Loud and aggressive swearing and abuse accompanied by gesticulating and finger pointing such as to cause the claimant distress, alarm, anxiety and psychiatric injury.
At first instance the judge had found that the alleged perpetrator of the harassment had outbursts but these were not targeted against the claimant as opposed to anyone else, or indeed inanimate tools and machines.
On appeal the claimant's two principle submissions were that:
§ If the judge had examined the evidence regarding the events before 14 October with sufficient care he would have found that it amounted to harassment - even if there was no proven intent to harm and the claimant was not always on the receiving end.
§ Alternatively the conduct on 14 October in itself amounted to harassment for which the defendant was vicariously liable.
The CA held there was no evidence that events described prior to the 14th could be described as harassment and the conduct on the 14th could not satisfy the requirements of the statutory tort as:
A course of conduct must involve conduct on at least 2 occasions… and… the same person must be the victim on each occasion when harassment is alleged to have occurred.
The claim was dismissed and the judgment provides an excellent review as to the requirements for bullying claims to succeed in common law negligence. However, whilst the CA considered in part the issues of what behaviour can constitute a course of conduct and harassment to satisfy the Act, it did not consider the primary question of whether an employer can be civilly liable for a statutory tort committed by an employee under the Act. That question however, was addressed by the CA in Majrowski which handed down judgment on 16 March 2005.
Majrowski v Guy's & St Thomas's NHS Trust
Mr Majrowski was employed by the trust as an audit co-ordinator and alleges that he was bullied, intimidated and harassed by his female departmental manager. At first instance the court found as a preliminary issue that the Protection from Harassment Act 1997 did not give rise to vicarious liability on the part of his employer, and struck out the claim for damages against the defendant on 24 February 2004 as disclosing no reasonable grounds for bringing a claim.
The CA by a majority of 2:1 reversed this decision with both Auld LJ and May LJ finding that an employer could be civilly vicariously liable under the Act with a dissenting judgment being given by Scott Baker LJ. In Auld's leading judgment he concluded that although the principle mischief at which the Act was directed was the practice of stalking, this did not prevent it from applying in an employment situation. Although it was recognised that the claimants did not need to prove foreseeability of harm or a recognised psychiatric condition (which gives rise to a risk that EL insurance policies will not cover claims under the Act and that limitation was six years) Auld LJ still felt that there were sufficient safeguards for employers as:
i) There had to be a course of conduct ie more than a single act.
ii) The conduct had to be of such nature and extent to be defined as harassment.
iii) There had to be a sufficiently close connection between the work and the alleged harassment such that it is just and reasonable for vicarious liability to attach [see Lister v Hesley Hall [2002] 1 AC 215 and Bernard v Attorney General of Jamaica (Privy Council Appeal No. 30 of 2003).
Although May LJ agreed that employers could be vicariously liable, he indicated that the objections of Scott Baker LJ (set out below) and his concerns that the floodgates for claims would be opened 'are powerful concerns, some, but not all, of which I share'. May LJ felt that the tests for vicarious liability and harassment provided sufficient control mechanisms for claims, particularly when one considered that any interpretation of what behaviour constitutes harassment has to coloured by the fact that it is of a serious nature which can be punished by imprisonment and/or fine.
The dissenting judgment of Scott Baker LJ is worth consideration. He had recently given judgment in Hartman v South East Essex Mental Health and Community Care NHS Trust which gave further guidance on applying the principles set out in Hatton v Sutherland and he concluded that an employee already has a considerable bundle of rights against his employer. By allowing vicarious liability under the Act, this would amount to a considerable extension of the employer's liability and that it cannot have been within the intent of parliament to create such a substantial extension of those rights by a 'side wind'.
Comment
The judgment as it stands will cause significant concern to defendants and insurers. The Act goes a considerable way towards side stepping the control mechanisms established in Hatton v Sutherland on stress cases and allows a claimant to recover damages without the need to prove foreseeability or recognised psychiatric condition and extends limitation to six years. Defendants may also find that they may not be able to claim an indemnity under their employers’ liability policy if the claimant does not establish a recognised psychiatric condition.
It seems unlikely that the just and reasonable test of vicarious liability can provide any serious control measure as to application of the Act and it is difficult to see many workplace bullying claims where it could not potentially apply.
Claimants will still have to establish a course of conduct which was calculated to cause anxiety or distress and that the conduct was oppressive and unreasonable such that it constitutes harassment. The courts will need to bear in mind the fact that harassment is a criminal offence under the Act and conduct must be sufficient to result in the possibility of imprisonment or a fine, but it remains to be seen how narrowly the courts will interpret harassment.
If the CA decision in Majrowski remains then it can be envisaged that allegations under the Act will become common place in bullying claims. There is still ambiguity as to what is meant by harassment and it may be that the burden placed upon claimants in proving such behaviour will be a high one such as to act as an effective control mechanism for claims. Whilst it is premature to say this decision will open the floodgates to claims there is a real risk that courts at first instance may apply a liberal interpretation of what constitutes harassment and will be inconsistent such that further guidance is required from the CA. The danger is that if this single control mechanism is not an effective one then floodgates may certainly be opened. At the very least it must be anticipated that the decision will fuel future litigation. Whether it improves claimants' prospects of success remains to be seen.
The NHS Trust is applying for permission to appeal the decision to the House of Lords.
Vanessa Latham
Solicitor, BLM London
Carbon monoxide poisoning claims: A review
Introduction
Carbon monoxide (CO) is a colourless, tasteless, odourless and non-irritant gas which if inhaled is acutely toxic. As a result, CO poisoning is a major domestic health hazard and a leading cause of death by poisoning throughout the world.
Only very small amounts of CO are produced by gas appliances, such as fires and boilers, which have been correctly installed and maintained because they burn gas completely. However, dangerous levels of CO can be released if the gas burns incompletely which is known as incomplete combustion.
How such claims arise
CO poisoning claims often arise in the context of rented domestic properties when tenants allege that they have been exposed to CO fumes from a defective gas appliance at the rented property and the landlord (and those who installed or serviced the appliance) being in breach of statutory duty and/or negligent.
As such it is generally a PL rather than EL insurer who deals with claims.
The law
Landlords' obligations are imposed by:
§ Gas Safety (Installation & Use) Regulations 1998 and the Approved Code of Practice and Guidance.
The guidance defines the term 'landlord' widely and includes not only private landlords but also housing associations, local authorities, along with those who provide bed and breakfast and holiday accommodation.
Regulation 36 sets out the main duties and in particular, states:
Every landlord shall ensure that there is maintained in a safe condition - (a) any relevant gas fitting; and (b) any flue which serves any relevant gas fitting, so as to prevent the risk of injury to any person in lawful occupation of relevant premises.
A landlord is further obliged to ensure that each gas appliance and flue is checked within 12 months of being installed and thereafter at intervals of 12 months. The gas safety check should only be carried out by a Corgi registered gas installer. The landlord must keep records of the inspection for two years and ensure that it records a variety of information including the name and signature of the person who carried out the check along with any defects found and remedial action taken.
§ Section 4 of the Defective Premises Act 1972.
The 1972 Act obliges a landlord to take such care, that is reasonable in the circumstances, to ensure that a tenant is reasonably safe from personal injury or from damage to their property from any defect. However, the landlord does not have to have actual knowledge of the defect, to be in breach of duty if he ought to have known of the defect.
Any breach by the landlord of the 1972 Act will result in him being in breach of duty not only in respect of his tenant, but also the tenant's family and other parties, such as lawful visitors to the property.
§ Section 11 of the Landlord and Tenant Act 1985.