In a recent case involving manual handling by a council worker, the defendants relied upon the claimant having been properly trained, in particular a kerb laying course, a conversation between the claimant and his manager, tool box talks, and a meeting with another manager.
The Judge analysed all of these and rejected them, saying that the kerb laying course did not begin to be adequate training from a health and safety perspective, the conversation with the manager was one where the manager “tore a strip off” the claimant about lifting kerb stones alone but this was not reinforced training systematically given and did not begin to discharge the duty; the tool box talks were notes read out to men at the start of the day and was not a proper discharge of duty; and the meeting with the other manager was not directly relevant.
Godden -v- Leicestershire County Council. Leicester County Court, 16 May 2007.
Limitation decisions, rather like buses tend to come along in groups. The next batch has arrived.
a) In Moore -v- Secretary of State for Transport and the MIB, the case involved a Francovich claim for damages based on defective implementation of Directive 84/5. The claimant suffered spinal injuries in a car accident caused by an untraced driver and had been awarded compensation by the MIB under the Untraced Driver’s Agreement. He appealed to the Arbitrator who increased the award although not to the extent that the claimant sought.
The Arbitrator found that the claimant had overstated his case, partly on the basis of video evidence and also on the basis of a medical report. After receiving the video, the medical expert revised his report twice re-dating the third report to the date of the original report. The claimant’s case was that the effect of this re-dating, when read together with a letter from the expert referring to his original report, was that there was scope for confusion on the part of the Arbitrator about the extent of exaggeration.
He submitted that his right of action in respect of Francovich damages only accrued when the Arbitrator’s award made it clear that he was not going to recover interest or costs; if the government had properly transposed the requirements of the Directive into English Law he would have recovered more in damages as he would have been made aware of any matters that might be used against him and would have been given the opportunity to comment on them and, in particular, he would have been provided with the medical expert’s letter.
Mr Justice Eady on 20 April 2007 held that all that the Arbitrator was doing was apply the relevant law and practice at that time. The cause of action for Francovich damages depended upon the supposed defects in that law and practice. The cause of action accrued on the date the claimant was injured by the untraceable driver, since it was then that he was disadvantaged by the defects he alleged rather than on the later date when he was denied the compensation he sought. Therefore all his claims were statute barred and would be struck out.
b) In Malpass -v- Corus UK Limited, a hand-arm vibration syndrome case. The claimant had tingling in his fingers from as long ago as the 1980s but the symptoms were episodic and he suffered no lasting complications. It was not until December 2004 that he experienced a new phenomenon of constant pain, whiteness, numbness and increased tingling. The worsening of the symptoms resulted in his discussing his problems with colleagues for the first time, seeking immediate advice from his GP and contacting his union.
A complicating feature arose in 2000/2001 when the claimant suffered from a nerve palsy, the symptoms of which were numbness and tingling in his fingers. He was treated by a rheumatologist for 18 months until he improved and was discharged. The claimant said that he told the rheumatologist that he used vibratory tools at work but still the treating consultant found no evidence of an upper limb disorder. It was not until a medical report in November 2005 that the claimant was told he had vibration white finger.
The defendants contended that the claimant had “knowledge” for the purpose of Section 14(3) of the Limitation Act as long ago as the 1980s and certainly since 2000 when he underwent the treatment for nerve palsy. They also argued that it would not be equitable to exercise discretion under Section 33.
The Judge accepted that the problems in 2004 were of a different type and magnitude and it was only then that the claimant realised that he had a “significant” condition to justify instituting proceedings. The claimant could not have had knowledge in 2000 if he did not have an injury that was symptomatic and significant at that time. If the medical expert did not think the claimant had a condition that was significant and attributable to work, then why should the claimant?
The case was therefore in time. The Judge addressed the Section 33 argument saying that, as the defendants were aware from 1976 of the dangers of using vibratory tools, and there was no evidence of the claimant being warned of those dangers or any steps being taken to reduce the risk of injury, the cause of the action was a continuing one and any prejudice to the defendant would have already have arisen. The Judge did not accept that the defendants would be prejudiced in any way and he would therefore have been inclined to allow the claim to proceed under Section 33 in any event.
c) However, in a deafness case of Roper on 27 March 2007, the Judge at Luton County Court dismissed the claimant’s case. The claimant had been involved in noise tests since about 1981. He had used hearing protection after 1974. He was a lifelong union member involved in noise testing and moves to have ear protection. He had gone on health & safety courses. He had had some hearing loss including tinnitus from 1986.
The Judge held that the claimant’s date of knowledge was 1991 at the latest. As a result of his union activities he had developed skills and knowledge that would make him aware of noise induced problems. In respect of discretion, he held there was no real explanation for the delay, it would be a difficult process to analyse systems of work in the 1970s and the claim therefore failed