A new European directive concerns the exposure of workers to risks arising
from vibration. It sets strict parameters and will give employers a kick start
in how to deal with or renew provisions for the prevention of these types of
injuries, by Linda Goldman and Joan Lewis
Work-related upper limb disorder is back in the occupational health
headlines. Hard on the heels of the UK miners winning their case for
compensation for injuries to their limbs resulting from exposure to vibrating and
pounding machinery, a European directive on the very topic was adopted in June
this year.
The directive regulates the minimum health and safety requirements regarding
the exposure of workers to the risks arising from physical agents (vibration).
Full details are available on the HSE website1 and it is expected that it will
be in force in the United Kingdom by 2005.
It sets strict parameters for dealing with a specific aspect of work-related
upper (and indeed, lower) limb disorders. The consultation period will start
shortly and should give employers a kick-start in dealing with or renewing
provisions concerning prevention of these types of injuries.
It is time to take a fresh look at some of the legal factors involved.
A new slant on an old subject
Repetitive limb movements are associated with muscle and joint strains, some
of which result in long-term or permanent injury. The most extreme form of
repetitive movement is that of vibration.
People who use vibrating or pounding instruments are liable to suffer from
hand-arm vibration syndrome, also known as white finger, for obvious reasons.
The condition which, in its mildest form, has an acute phase where circulation
to toe(s) and/or finger(s) is halted temporarily as peripheral capillaries shut
down. The recovery phase is marked by an acutely uncomfortable sensation of
pins and needles. In its most serious form, the recovery period is delayed and
may result in an escalating series of problems ranging from loss of grip and,
in its worst form, gangrene.
The Health and Safety Executive reports that more than one million UK
workers are at risk due to exposure to vibration from the equipment they use at
work. The vibration may be subtle, as in the form of dental drills, or violent
with the catastrophic effects reported by miners in a long-standing series of
cases. Detailed information can be found on the white finger website2.
Were it not for the potentially devastating effects of this painful
condition, it would be on a lighter note that The Guardian newspaper recently
reported that a 15-year-old Liverpool boy is a victim, having sustained his
injuries playing computer games3.
Vibration white finger is one of the multitude of disorders that affect
people involved in the use of machinery or equipment, which either requires
repetitive movements on the part of the operator or subjects the limbs of the
operator to transmitted movement.
The legal framework
People who suffer workplace injuries as a result of their employer’s
negligence look for compensation from the wrongdoer. Under some circumstances,
the State intervenes to administer punishment if injury is caused, or could be
caused, by a faulty work procedure.
Civil law has long imposed a duty of care on employers to ensure the health,
safety and welfare of their employees in the workplace, and a correlative duty
on the employees not to undertake tasks or go about their jobs in such a way as
to court risk.
The common law duty, supported by the criminal law in the form of the Health
and Safety at Work Act 1974 and European-derived regulations, ensures that any
employer who fails to provide a safe system of work and safe equipment will be
liable to his employees who suffer injury as a result of that failure. The risk
of injury must be reasonably foreseeable and, these days, should have been
identified in a suitable and sufficient risk assessment under the Management of
Health and Safety at Work Regulations. A risk that is not identifiable after a
proper risk assessment may not have been reasonably foreseeable. The crucial
factor is whether the employer knew or ought to have known of the risk and took
reasonably practicable preventive steps.
There is a correlative duty on the employee to take care of his own safety
and that of his fellow workers. This means that an employee should not
undertake work that amounts to a risk, particularly if he has been forbidden
from doing a particular activity. For example, in 1953, Mr Stapley lost his
claim for damages against his employer, Gypsum Mines Ltd, because his injuries
were sustained when he disobeyed an order to evacuate a mine whose roof was
about to, and did, collapse.
It follows that employees who work in excess of a work schedule, which might
otherwise have prevented them developing a work-related disorder, may have some
difficulty in establishing that their employer is liable. However, employers
will be liable if they have encouraged the breach of the rules, say by allowing
a flexi-time person to work through designated breaks so that person can leave
work early.
New diseases for old
The condition of writer’s cramp has been known since man first took up the
quill. Then came a work system involving rapid input of data into computers and
a more intensive use of keyboards than was ever known in the typewriter age. In
the 1980s an epidemic of a condition known as repetitive strain injury – RSI –
swept Australia. It was characterised by its lack of connection with any
formal, orthopaedic diagnosis and its generally poor prognosis.
The constant feature was pain, although the site of the symptoms varied. In
the 1990s, there were signs that the UK workforce would succumb. The main
victims were young women working at data-input keyboards. The occupational
health profession was and remains concerned about dealing with diffuse symptoms
arising from similar work processes involving upper limb and hand activity, in
particular.
The feature of RSI was that it did not fit into the categories known to
medical science including syndromes named after tennis and golf but more likely
to be encountered in the workplace than on the playing field.
Before the main impact of risk assessments and industry getting to grips, as
it were, with the Health and Safety (Display Screen Equipment) Regulations,
there were alarming signs of employers being unable to recognise that human
joints and muscles needed as much loving care as the machinery that was causing
injuries. Equally alarming was the financial impact of the increasing volume of
litigation.
The general flavour of the cases that have come to court is that a standard
textbook condition is needed for a claim to succeed. After that, causation must
be proved on the balance of probabilities. In Sony v Rugamer the courts
recently decided, although the House of Lords has yet to make a final decision
in the matter, that psychological overlay (which may be a feature of
intractable ‘RSI’ cases) is not a clinically recognised illness.
Prevention
The foundation of prevention is risk assessment. The HSE is increasingly
prosecuting people who have failed to carry out this essential duty. A
conviction in the criminal court is likely to increase the injured person’s
chance of success in their civil claim and will affect insurance premiums.
The Vibration Directive will place a greater and much needed emphasis on
prevention. The recent cases brought by sufferers from asbestos-related
disease4 have created a landmark precedent. In people who have been exposed to
risk by several employers, who have brought their cases before the court,
liability has been shared by all those who might have been liable. Previously,
the victim had to show which phase of work caused the problem and name the
specific employer who was directly responsible for the current medical
condition.
Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is the senior consultant and director of Advisory, Consulting &
Training Associates and Virtual Personnel, employment law and advisory service
consultancies and licensed by the General Council of the Bar in employment
matters under BarDirect.
1. www.hse.gov.uk/hthdir/noframes/vibrat.htm
3. www.shopping.guardian.co.uk
4. www.bbc.co.uk/l/hi/health/1991023/stm
A framework of prevention
A famous case in 1993 concerning a group of chicken pluckers who contracted
tenosynovitis was Mountenay (Hazzard) and others v Bernard Matthews (1993).
The judge set out the following guidelines for employers to
follow to reduce the risk as far as reasonably practicable:
– Warn of the risk
– Enable employees to make an informed choice as to whether
they will take the risk
– Advise employees to take medical advice at the first sign of
aching wrists or hands
– Provide mechanical assistance for squeezing movements
– Gradually introduce new employees to repetitive working movements
– Rotate duties
That case was 10 years ago. What seemed like stunning insights
into prevention are now commonplace. The approach to the European Vibration
Directive should be followed in the same constructive light. Better to err on
the side of caution – saying you are sorry is very expensive these days.
Casewatch
Pollitt v The Post Office (2001)
A keyboard user performing data input on postcodes, about as
repetitive a strain as there can be, failed to persuade the court that the
employer was liable for the condition, described as RSI even though he had been
treated by neuroplasty for relief of his symptoms.
Provided there is a recognisable diagnosis, the plaintiffs are
likely to be successful, as was seen in the Bernard Matthews case. However, in
Mughal v Reuters, about 10 years ago, the judge said that the term RSI had been "subjected to a semantic and
logical demolition", but continued to use it because the term had
"achieved a life of its own".
Tovey v Inland Revenue (1996)
Kathleen, a typist, settled her case against the Inland Revenue
for £82,000. She developed intractable RSI which prevented her from working,
although her work had been carried out under supervision.
Mulligan v Midland Bank (1997)
Michelle Mulligan, a bank clerk, successfully sued the Midland
Bank after developing tenosynovitis due to repetitive strains induced by
excessive amounts of typing. She was awarded £155,000 to cover loss of earnings
and an award for the pain and suffering caused by her injury.
Rance v Lomax Sayers Ltd (2001)
The claimant handled plant pots in the course of his work,
lifting them and moving them. He was diagnosed with tendonitis, lateral and
medial epicondylitis and ganglion. His claim succeeded.
King v Coopers and Lybrand Ltd
(2001)
The claimant complained that she suffered diffuse pain caused
by excessive typing on a computer keyboard but her claim for compensation
failed.
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The University of Loughborough has
a register of all the recent cases on www.lboro.ac.uk-db/sumjudg.htm but does not show the amounts of damages
awarded in the successful cases. Where damages have been awarded in public, it
may be possible to find the information from the court or the local newspapers.
