Needlestick injuries, trivial or traumatic?
The Court of Appeal has ruled in favour of a UNISON member in a long-running dispute over the seriousness of needlestick injuries. Oonagh McClure of Thompsons McClure explains the legal arguments
As Sean Fryers removed a yellow clinical waste bag from a bin at the Royal Victoria Hospital in Belfast, he felt a sharp pain in his leg. The bedside hygiene operative had been pricked by a used needle that had been thrown into the bag.
His leg was bleeding and so the duty nurse squeezed the wound to make it bleed more and then rinsed it repeatedly and dressed it.
Mr Fryers was referred to the occupational health unit where he was given the first of a series of three hepatitis B jabs, was advised to avoid unprotected sex with his partner and told to contact the department if he felt he needed further advice or counselling.
The hospital was unable to trace the needle to any particular patient or to rule out the possibility that Mr Fryers had been infected with hepatitis or HIV. As a result, he became very distressed and anxious and developed a psychiatric disorder.
Although the Royal Victoria had a clear and strict policy on the disposal of used needles in allocated sharps boxes, as well as a policy on what to do in the event of someone coming into contact with a contaminated needle, it denied liability for Mr Fryers’ injury.
Thompsons McClure, instructed by UNISON, was therefore forced to issue court proceedings against the hospital.
This should have been a straightforward needlestick claim. The NHS Trust was clearly negligent in failing to dispose of the needle safely and properly. It had therefore exposed Mr Fryers to a foreseeable risk of injury and was in breach of its statutory duty under Section 2 of the Occupier’s Liability Act(NI) 1957 and Regulation 9 (iii) of the Workplace (Health Safety and Welfare Regulations) 1992.
In its defence, the trust used the decision in Rothwell and Others – the pleural plaques test cases – in which the House of Lords upheld a Court of Appeal ruling that pleural plaques were symptomless and therefore not compensatable.
The Law Lords also confirmed that a psychiatric condition developed by a pleural plaques sufferer because they were worried about developing an asbestos related disease in the future could not in itself create a compensatable injury and neither could the risk of the sufferer actually developing such a condition be added to the other factors to effectively add up to or complete an injury that was compensatable.
And so the defendants in Mr Fryers’ claim said the needlestick injury was so trivial that it was not compensatable and the anxiety brought about by his fear of contracting an illness in the future and the risk of that happening did not amount to a compensatable injury.
But Mr Fryers had sustained an injury that could be seen and felt and which was bleeding and was made to bleed further. He required immediate medical attention and a course of treatment.
There would be serious consequences if the needle was contaminated with a blood borne virus. However, the County Court judge was persuaded by the trust’s argument and dismissed the case. Mr Fryers appealed to the High Court and although he was successful and compensation was agreed at £3,000, the issue of whether a needlestick injury should itself be compensatable remained.
Breach of contract
This is because, before the appeal and with the pleural plaques test cases in mind, Mr Fryers’ claim had been amended to include a breach of contract. Put simply, the contract between employer and employee, written or implied, included responsibility for the employer to safeguard the safety of their employee in the workplace.
The High Court agreed with the lower court that the trust was not negligent in relation to Mr Fryers’ injury, but did find that it was in breach of the contract of employment. The judge accepted that there was an implied term that the employer would safeguard the safety of its employees.
He also said that, although the House of Lords had previously dismissed the possibility of claiming damages for mental stress and anguish in a commercial contract case (Addis
-v- Gramophone Company Ltd), Mr Fryers’ claim was not a commercial contract case. It was a contract created with health and safety in mind.
The court in the case of Jarvis -v- Swan Tours took the view that, although a contract breaker is not in general liable for distress, frustration, anxiety or aggravation caused by the breach, this rule is not absolute.
This was particularly true if the very object of the contract is to provide “pleasure, peace of mind and freedom from molestation”.
So the trust had breached its contractual duty of care to Mr fryers, which included a duty to protect him and give him peace of mind. The High Court said he should therefore be entitled to compensation for the damage caused.
Not surprisingly both parties sought leave to appeal to the Court of Appeal (CA) in Belfast. It was important to establish that the judge was right to dismiss Mr Fryers’ claim that his employer was negligent and whether it was right that the employer was in breach of contract.
The CA confirmed the principle that, before a person could establish a viable claim for personal injury, they must establish that the injury was more than trivial. But it decided that Mr Fryers’ injury was not trivial.
The court said is was a serious injury reflected by the trust’s own policies and was not harmless.
The injury had bled and required immediate treatment and follow-up blood tests and assessments, and so Mr Fryers had suffered a physical injury and was entitled to damages.
The Rothwell decision was not relevant to this case and, if the physical injury was foreseeable, then damages for the resulting psychological condition – which everyone agreed had developed as a result of the original injury – should also follow.
As a result it was unnecessary for the CA to deal with the breach of contract point.
In reaching their decision, the Court of Appeal judges stressed that context was everything.
Had the needle been sterile and outside the hospital environment, then it may well have been right to regard the injury as trivial.
A prick from a clean needle in a shop or a sewing needle in a domestic situation is unlikely to be anything other than trivial.
But this was a used needle in a hospital. For this reason the 1996 case of Page -v- Smith would have applied even if it had been found by the court that there was no physical injury.
The Trusts’ failure in Mr Fryers’ case to dispose of the needle appropriately created a foreseeable risk of injury and it was irrelevant whether that injury was physical or psychiatric.
However, given the High Court’s finding of a breach of contract, it would seem sensible to include a breach of contract in all work-related compensation claims.