Personal Injury Law Review - Autumn 2007 - Issue 4 · 2017. 8. 8. · Personal Injury Law Review...

Personal InjuryLaw Review

AUTUMN 2007Issue 004

A smoking gunA look at the new smoking regulationsPg 4

Hitting the mark An overview of the law relating to violence at work Pg 6

Handy hints A review of the law on manual handlingPg 8

Time out An explanation of time limits in litigationPg 10

www.thompsons.law.co.uk

In the news

THOMP S ON S S O L I C I TO R S P E R S O NA L I N J U RY L AW R E V I EW2

The Corporate Manslaughterand Corporate Homicide

Act became law in July 2007after a difficult passage throughParliament.

The Act, which comes into effect inApril 2008, should make it easier toprosecute organisations which causethe deaths of workers. However, itwill still be necessary to show thatthe failure in health and safety whichcaused the death was down todecisions made at a seniormanagement level.

For a time it looked as thoughthe government would fail to get thenew law onto the statute books aftermembers of the House of Lordsvoted for an amendment on crownimmunity exemptions relating todeaths in police custody.

It was never intended that the lawwould cover deaths in custody. Butministers conceded to the

pressure from opposition membersof the Lords in order that the Actwould not be lost.

The family of 17-year-old DanielDennis from South Wales, who diedin his first week at work in April 2003when he fell through a skylight afterbeing sent onto a roof with no priorsafety training, had written to everymember of the Lords asking themnot to risk the Act for the sake ofdeaths in custody, no matter howimportant the issue.

Daniel's father Peter said: “We hopethat as a result of this new lawemployers will understand that theyare not above the law and that othertragic accidents will be prevented.”

Mick Antoniw, a partner atThompsons Solicitors who represents

the Dennis family said: “After a tenyear battle at long last the families ofthe victims of corporatemanslaughter, and the trade unions,have succeeded in achieving a lawwhich will play a key part inimproving health and safety andreducing deaths at work.The nextpart of the campaign is for legalduties to be imposed on directors ofcompanies with responsibility forhealth and safety.”

Deadly statistics

• The number of workers killed lastyear at work was 241, an 11 percent increase on the previous year,according to the Health and SafetyExecutive (HSE).

• Although there is an overall long-term downward trend in thenumber of worker fatalities, the rateof decrease has slowed over thelast 15 years and there has beenvery little change in the overall rateover the last five years.

• Of the main industrial sectors,agriculture and construction havethe highest rates of fatal injury.These two sectors account for 46per cent of fatal injuries to workers.

• Falling from a height continues tobe the most common type ofaccident, accounting for 19 per centof fatal injuries to workers in2006/07. Over the last decadethere has been a steady andsignificant reduction in fatal injuriesdue to this type of accident. Beingstruck by a moving or falling object,and being struck by a movingvehicle, are the next most commonfatal accidents.

To download the statistics, go to:www.hse.gov.uk/statistics/fatals.htm

Corporate manslaughter law victory

Thompsons Solicitors has calledon the government to increasethe amount of compensation forbereavement to the families ofasbestos cancer victims in EnglandandWales.

The firm is demanding equality for familiesaffected by asbestos in its response to aMinistry of Justice (MoJ) consultation onthe Law on Damages.

The consultation is aimed at improving thesystem for dealing with claims forcompensation for personal injuries anddeath.

The firm calls for the government to retainthe current practice, which requiresnegligent employers and their insurers topay compensation for bereavement. ButThompsons is calling for the fixedbereavement award of £10,000 in Englandand Wales to be increased in line withpayments made in Scotland.

Thompsons launched its Justice forAsbestos Families campaign earlier thisyear highlighting an inequality in the waycompensation for bereavement is awardedto families who have lost a loved one tomesothelioma, a cancer of the lining of thelung caused by asbestos.

In England and Wales the level ofcompensation is set at £10,000 by law andis only payable to the spouse but over theborder in Scotland payments up to £30,000have been made to bereaved widows.

Other family members in Scotland canalso receive compensation of between£10,000 to £15,000 each.

Thompsons’ campaign has already beensupported in parliament by a number ofMPs.

In its response to the consultation paperThompsons said that companies that havenegligently caused a death must be made

to “apologise” adequately and that theamount currently paid to bereaved relativesis out of date and is insulting to families.

The firm added that the level ofbereavement damages is too low and thedefinition of relatives who can claim is fartoo narrow and should be opened up toinclude other family members.

Head of asbestos policy at ThompsonsSolicitors, Ian McFall said: “This consultationgives the government another opportunityto look again at compensation forbereavement.

“We believe strongly that there is a powerfulcase for a change in the law to bringcompensation for bereavement into line withthe amounts currently paid in Scotland.”

To view Thompsons’ response to the MoJ’sLaw on Damages consultation go towww.thompsons.law.co.uk/ltext/dload/law-on-damages-consultation.pdf

T HOM P S ON S S O L I C I TO R S P E R S O NA L I N J U RY L AW R E V I EW

In the news

3

Stressed out

Calls for increase in compensationfor victims of asbestos cancer

The Court of Appeal has made itharder for claimants to succeedin stress cases. It decided inDeadman -v- Bristol City Councilthat an employee with 30 years'service who developeddepression after an allegation ofsexual harassment was madeagainst him, could not succeed.

Although the Court accepted that hisemployer had handled the investigationinto the allegation badly, it said that:• The obligation in the employer’s policy

requiring them to handle complaints ofharassment "sensitively" was notcontractual.

• They could not have reasonablyforeseen that Mr Deadman wouldsuffer “this particular kind of harm” as aresult of convening a panel of two,rather than three, as he was “of robustgood health” and had an excellentattendance record.

• The council could not have known thatan investigation might have beendamaging to his health, given MrDeadman’s demeanour and behaviourleading up to it and had not thereforebeen negligent to tell him of itsdecision "by leaving a bald letter on hisdesk".The content of the letter, not theway in which it was delivered, wasmore important.

PI claimsreform

The Summer 2007 issue of PILRreported that the government wasconsulting on reforming thepersonal injury claims process.

To view Thompsons' response tothe consultation go to:www.thompsons.law.co.uk/ltext/dload/response-case-track-limits-and-claims-process.pdf

Smoking regulations


On 1 July 2007, the Smoke-free(Exemptions & Vehicles) Regulations cameinto effect in England, making enclosedpublic spaces and workplaces smoke-free.

Tony Lawton, a personal injury partnerwith Thompsons, provides an overview ofthe main provisions of the new law.

Passive smoking

Even before the introduction of thelegislation, employers already had a duty ofcare under the common law to protecttheir staff so far as is reasonable.

Some employees had used this obligationto bring claims against their employersarguing that they were exposing them todanger, despite being aware of the risks ofpassive smoking. Many of these,particularly in the food, drinks andentertainment industry, habitually exposed

their staff to the dangers of cigarettesmoke on a large scale.

Thompsons successfully pursued a numberof claims on this basis for union memberswho were able to prove that they hadsuffered respiratory illnesses as a result ofbeing exposed to smoke at work. As thedangers of passive smoking have beenknown for several years, it is just aboutimpossible for a reasonable employer toargue that they were unaware of thedangers.

We have only succeeded, however, wherewe were able to show that the employercould – and should – have taken steps tosignificantly reduce the dangers fromcigarette smoke. Success is always subjectto proving the difficult issue that the illnesswas caused by smoking at work, whetherbased on negligence or a breach of thenew regulations.

Main provisions of the newregulations

The new regulations go further than thecommon law and, for the first time,impose a statutory duty on employers. Asa result, if they breach the legislation, theymay not only face a criminal prosecutionbut also a civil claim for compensationalleging that they were in breach of theirstatutory duty. That is in addition toallegations of negligence in common law.

The strength of the new legislation is that,subject to certain exemptions (see below),employers are under a strict liability toabide by them. That just means that theemployer is automatically to blame if theemployee can show a breach of the law.

The regulations state that premises mustbe smoke-free if they are enclosed orsubstantially enclosed and:

A smoking gun

A look at the new smoking regulations


Smoking regulations

5

• are open to the public• used as a place of work by more than

one person• a place where members of the public

might attend for the purpose ofreceiving goods or services from peopleworking there

“Work”, in this context, includes voluntarywork.

Exemptions in the law

Despite the legislation, many workers willcontinue to be exposed lawfully tocigarette smoke in the course of theirwork.This is because of the exemptionsset out in the regulations.

These allow hotels and boarding housesto have specified bedrooms that are notsmoke-free. And designated bedrooms andsmoking rooms for adults in care homes,hospices and prisons may also still not besmoke-free. Likewise, designated rooms foradults in accommodation in mental healthunits.

Those working in the tobacco industry willstill not have any statutory protectionagainst cigarette smoke in some places. Forexample, specialist tobacconists areexempt, as are designated smoking roomsin research and testing facilities where theresearch relates to the emissions fromtobacco or other smoking products.Designated rooms in an offshoreinstallation are also exempted.

The most interesting exemption is that of“performers”.The legislation says thatanyone participating as a performer in aperformance is not to be prevented fromsmoking if “the artistic integrity of aperformance makes it appropriate forthem to smoke”.

A “performance” is defined as including forexample “the performance of a play, or aperformance given in connection with themaking of a film or television programme”.Non-smoking performers on stage or on

set and backstage staff may thereforecontinue to have concerns if they areexposed to cigarette smoke withoutstatutory protection. It will be interestingto see how the courts interpret thisexemption.

Exemption, not absolution

Despite the exemptions, employers cannotsimply absolve themselves of anyresponsibility for the health of theiremployees from inhaling cigarette smoke,just because a part of the workplace fallsoutside the smoke-free protection.Although the employer will not be opento prosecution where the part of theworkplace is exempt, they still may have acommon law liability for negligence if theyhave not taken reasonable steps toprotect their staff.

So concerned employees should:• Make sure their employers are aware of

their concerns. Put them in writing, orensure they are recorded in minutes ofsafety meetings.

• Explore ways with their employer toreduce or contain the smoking, or findways of providing better means ofextraction.

• Make sure that their employer knowsthat, although they may not be in breachof the legislation, that does not absolvethem from their civil responsibility asthey still have a duty of care.

Still not easy to sue

A word of caution.Those exposed tocigarette smoke at work should be awareof some of the difficulties involved inpursuing claims for smoking, whetherbased on breach of the regulations ornegligence.

While Thompsons may be able to showthat there had been a breach or that theemployer was negligent, we still need toprove that they caused the illness in orderto succeed.That is not always easy.

People are exposed to cigarette smoke inmany places, not just at work. Proving thatit was the smoke at their workplace thateither caused the illness or materiallycontributed to it can be difficult, andwould be a matter for expert evidence.That requires a medical expert who isprepared to stand up in court and saythat, on a balance of probabilities, theillness was caused by the cigarette smokeat work. They then have to resist cross-examination by the employer who maywell have an expert medical witness whodisputes the claim.

While the legislation will make is easier toprove that an employer is liable, it will notmake it easier to prove that the illness iswork-related.

A final thought

However, it should be remembered thatthe main purpose of the legislation is notto make it easier for employees to litigateagainst their employers, but to provide aneffective preventive measure, which willremove the risks of passive smoking atwork. This should then reduce the risk ofillness to a large section of the workforce.Progress indeed.

Those exposed tocigarette smoke atwork should beaware of some ofthe difficultiesinvolved inpursuing claims forsmoking

Violence at work


A recent survey showed that more than athird of nurses working alone in thecommunity had been assaulted orharassed. But they are not the only ones.Local government employees, train driversand conductors, fire fighters, ambulancepersonnel and other workers all face risks.

Judith Gledhill, a personal injury partnerwith Thompsons, provides an overview ofthe legal duties of employers whose staffface violence at work on a daily basis

Basic obligations

All employers have a duty to look afterthe health and safety of their employees,to provide a safe place of work and toensure that their systems of work are safe.The Management of Health and Safety atWork Regulations also require employersto carry out a “suitable and sufficient”assessment of any risks to the health andsafety of their employees, and to identifyany measures they should take to complywith their health and safety obligations.

Risk of violence

But what should employers do if, havingdone a risk assessment, they discoverthere is a risk of violence to their workers?The aim of the regulations is preventionrather than cure, so employers should tryto avoid the risk completely in the firstplace.

If that is simply not realistic, they shouldmake alterations to the workingenvironment. For instance, by introducingpanic buttons and/or CCTV cameras.Perspex screens protecting employeesfrom members of the public might also beappropriate in some circumstances. Or theemployer may decide that their employees

should not work alone. If so, they shouldimplement policies to that effect andincrease staffing levels.

Patterson -v- Tees and NEYorkshire NHS Trust

In the case of Patterson -v- Tees & NorthEast Yorkshire NHS Trust, Mr Patterson (asenior psychiatric nurse) was assaulted bya patient with a history of violence.Thepatient had absconded from hospital and apress release was issued warning thepublic to take care.The patient saw thebroadcast, returned to hospital andassaulted a senior male nurse on the ward.

On starting work, Mr Patterson was madeaware of events earlier that day, but wasnot told that the patient had madeverbally abusive comments about him.Thepatient then attacked Mr Patterson andinjured him.

The trust argued that they were not liablebecause the assault could not have beenprevented, given the safeguards they hadput in place to protect staff.The trial Judgedisagreed, saying that the trust had been

negligent and in breach of its legalobligations as it had failed to warn MrPatterson about the verbal abuse.TheJudge also found that the trust had failedin its duty to continually risk assesspatients on an event-by-event basis.

The employers asked for leave to appeal,but the Court of Appeal refused sayingthat the trial Judge was entitled toconclude that the evidence of the patient’sbehaviour prior to the assault was enoughto find fault. Specifically, the court said thatif Mr Patterson had been made aware ofthe verbal abuse, he might well have takensteps to avoid any dealings with thepatient.

Smith -v-Welsh AmbulanceService NHS Trust

Employers also have to ensure that theyhave a strategy in place to addressworkplace violence, and that all employeesare properly trained in how to apply it.

In the case of Smith -v-Welsh AmbulanceService NHS Trust (see PILR June 2007)the trial Judge accepted that members ofthe emergency services would sometimesface risky situations. If that was the case, hesaid it was essential for control room staffto do a risk assessment and then make an“intelligent decision” about whether tosend in a lone worker or not.

In this particular case, the Judge found thatthe control room staff should have advisedMr Smith to wait until the police arrived.They had not been trained to do this,however, and could not therefore giveguidance on how to deal with such apotentially dangerous situation. Nor didthey know how to quickly do a riskassessment.That meant that paramedics

Hitting the markAn overview of the law relating to violence at work

The police saidpremises with lonewomen workerswere morevulnerable toattack


Violence at work

7

and other ambulance personnel were leftto make difficult decisions alone.

Other staff facing violence

Although cases involving violence to healthcare workers are on the increase, otherworkers are also at risk from violentassaults by members of the public.Takethe case of Collins -v- First QuenchRetailing Ltd. Miss Collins was themanager of an off licence store owned byFirst Quench. She was alone in the shop inJune 1998 when masked men burst in andput a knife to her throat. She was pushedinto a cellar and made to open the shopsafe. Understandably, she suffered a severepsychological reaction to the assault.

Miss Collins brought a claim, alleging thather employers had failed to provide herwith adequate protection, given that theshop had a history of serious incidents.Since 1977 there had been 13 reportedcrimes including four armed robberies. In1997, another employee had resigned afterbeing threatened by a violent customer.

Not only that, but she had already askedher employers to provide better securityin the form of screens and to ensure therewere two members of staff in the shop at

all times. Her employer did nothing,however.There was then another armedrobbery on 31 May 1998, but heremployers still took no action.

First Quench argued that the shop wasnot located in a high-risk area and that thenumber of incidents were not significantlyhigher than in other local shops.They hadfitted the off licence with panic buttonsand a CCTV camera, and had rosteredtwo staff to work evening shifts.Thesemeasures, the employer said, were enoughto protect staff from violent customersand robberies.

The police gave evidence at the trial,saying that premises with lone womenworkers were more vulnerable to attackthan those with at least two members ofstaff.

The Judge found in favour of Miss Collins,saying that lone workers were generallyeasier to attack than two or moreemployees. Having more than one personin the shop did not just act as a deterrentto robbers, but to all forms of physical oreven verbal attack.

He therefore decided that having twoemployees in the shop at all times was a

step that would have materially reducedthe risk of an attack and that theemployers could reasonably haveimplemented the change. As a result, FirstQuench was found to be in breach of theduty to take reasonable care to ensure thesafety of its employees.

Employer obligations

With violent assaults on working peoplebecoming more commonplace, it is vitalthat employers comply with their legalobligations and undertake detailed riskassessments. Once a risk is identified,employers must implement systems toreduce the risk to the lowest levelpossible.

Staff go to work to do their job, not toface abuse and violence. If employers paylip service to their legal duties, they runthe risk of their employees being injured,having to take time off work to recoverand in some cases not being able toreturn to work at all. Costly legalproceedings may then follow with theemployer or their insurer being ordered topay significant sums by way ofcompensation. In many instances, this couldbe avoided if the employer had just donewhat they were supposed to do.

Manual handling regulations


HandyHints

A review of the law on manual handling

The Manual Handling Regulations maynever make it onto the bestseller list, butthey should be compulsory reading for allhealth and safety reps.

According to the Health and SafetyExecutive (HSE), more than a third of allmusculoskeletal disorders (MSDs) that lastmore than three days are caused bysomeone handling an item at workwrongly.

Work-related MSDs affect one millionpeople in the UK, and overall they arethe most common form of ill-healthdisorders at work throughout Europe.Problems include back pain, work-relatedneck and upper limb disorders, includingrepetitive strain injuries, and lower limbdisorders.

So it's little wonder that this year’sEuropean Safety and Health At Workweek (22 to 26 October) called “Lightenthe Load” is dedicated to MSDs.

The aim of the campaign is to supportemployers, workers, safety representativesand other stakeholders in understandingtheir rights and obligations and, wherepossible, preventing MSDs.


The 1992 regulations (amended in 2002)define manual handling as “anytransporting, or supporting of a load(including lifting, putting down, pushing,pulling, carrying or moving thereof) byhand or by bodily force”.

The scope of the regulations makes clearthat manual handling injuries can occurwherever people are at work, and not just inobvious risk areas such as hospitals, factoriesor on building sites. They can happen inbanks, offices, shops and even at home.

Obligations of employers

The regulations require employers to:• avoid the need for hazardous manual

handling, as far as possible• assess the risk of injury that cannot be

eliminated



9

• reduce the risk of injury as far aspossible.

Obligations of employees

Employees are required to:• follow appropriate systems of work• make proper use of equipment that

their employer has provided• co-operate with their employer with

regard to health and safety• inform their employer if they identify

hazardous handling activities• ensure they do not put others at risk.

Risk assessment

But although employers are under a hugeonus to try to find ways of avoidinginjuries caused by manual handling, the lawrecognises that this may not always bepossible.The regulations therefore requireemployers to assess the risk and takesteps (such as providing training) toreduce the chances of injury to theiremployees.

So, for instance, employers must takeaccount of:• the physical suitability of the employee

to carry out the operation• the clothing, footwear or other personal

effects they are wearing• their knowledge and training• the results of any risk assessments

carried out under the Management ofHealth and Safety at Work Regulations(MHSWR)

• results of any health surveillanceundertaken under the MHSWR

• whether the employee is one of a groupof employees who are particularly atrisk.

If the employer does all that, employeesare unlikely to succeed in proving theirclaim even if they are injured, as the caseof King -v- Sussex Ambulance NHS Trustshows. Mr King was injured when carryingan elderly patient down steep stairs in acarry chair. The Court of Appeal said thatthere was nothing else his employer couldhave done to prevent the risk, other thanto ask a third party to intervene which, inthis case, was not practical.

Breaches of the regulations

But the same cannot be said of all NHSemployers. In Knott -v- Newham HealthCare NHS Trust, the Court of Appeal saidthat Ms Knott’s injury was caused byrepeated heavy lifting. Her employer hadbreached the regulations by, among otherthings, failing to provide a hoist or give herproper training. She was awarded over£400,000.

And in Wells -v-West Hertfordshire HA,the Court of Appeal found that Ms Wells’employer had failed to carry out the mostbasic of requirements under theregulations – to do a risk assessment.

Alternative ways of doing the job

If the employer has done a risk assessmentand identified a risk, they may then have tofind another way of doing the job.Take thecase of Mr Millward, a warehouse workerwho injured his back lifting a 17kg roll ofplastic pallet wrap from a pallet onto amachine on the shop floor. Theemployer’s defence was that they haddone a risk assessment and providedadequate training.

At trial, Mr Millward proved to the Judgethat his employer had not thought aboutwhether there was a way to avoid liftingthe rolls at all.The Judge accepted that theroll was heavy and that the employer hadnot mentioned this approach in theirdefence. He therefore found for MrMillward.

Likewise, the case of the railwaysupervisor who had to lift two cylindersand a trolley weighing about 150 kg byhand from track level to the platform.When doing so, he strained his back.

His employer said that, as he was asupervisor, his responsibility was to make adynamic assessment of the risk andchoose a safe method of work. They saidthey could not always provide liftingequipment when working nights on thissort of job.

The supervisor argued that the need to liftcould have been eliminated altogether byusing a road/rail vehicle, and pointed outthat his last manual handling training hadbeen 10 years before. The Judge foundthat, if there were better methods ofdoing the task, it was for the employer toprovide training in those methods.

Not all activities covered

It makes sense, however, that not allactivities fall within the regulations. In arecent Scottish case – Hughes -v-Grampian Country Food Group Limited– the Court of Session held that a processworker trussing chicken carcasses was notperforming a manual handling operation.

Having watched a video of the workprocess, which mainly consisted ofemployees working on carcasses on awork bench, or picking them up briefly toapply the trussing string before puttingthem back down, the Judge concludedthat, while manipulation was beingperformed, there was no transporting orsupporting of a load.

A Judge also found against an administrativeassistant in the case of Curr -v- CrownProsecution Service. As she walked alongthe road from her office to the local court,carrying bulky legal files, she slipped on apatch of ice and injured her knee. She saidthat the reason she fell was because thefiles were bulky and cumbersome and shefound it difficult to balance them in the icyconditions. The Judge, however, said that itwas an accident and that the bags hadnothing to do with her fall.

The court heldthat trussingchickens was nota manual handlingoperation

Time limits

THOM P S ON S S O L I C I TO R S P E R S O NA L I N J U RY L AW R E V I EW10

There are certain legal basics that tradeunion representatives and full-time officersshould know about. One of them is thetime limits for bringing court proceedingsfor different types of personal injuries.

Tony Lawton, a personal injury partnerwith Thompsons, explains what they areand why they are important.

Why are there time limits?

The first question is why the law has timelimits.The first, and most obvious, purposeis to avoid claims being made long afterthe event, when the person ororganisation has no chance of defendingthemselves properly, usually because

witnesses have disappeared or documentshave been destroyed.

Having said that, however, it is sometimesdifficult to ascertain a rational basis forsome of the time limits that exist. Forexample, employment law has a three-month limit for bringing a claim for breachof contract in an employment tribunal.Yet,the courts have a limit of six years for thesame claim.

Limitation Act

In the personal injury field, the law isgoverned by the Limitation Act 1980.Themain time limit is three years from thedate of the accident or the date from

when the “cause of action” arose.

This means that the claim form has to beissued in the court before the expiry ofthe three-year period. There is then afurther period of up to four months fromthe date of issue of the claim form inwhich to serve it on the defendants.

The position in respect of industrialdiseases is rather more complex. There isstill a three-year limit, but the three yearperiod begins to run from the date whenthe claimant knew or ought to haveknown that they had suffered a“significant” injury, and that the injury wascaused in general terms by some fault oftheir employer.

Time out

An explanation of time limits in litigation


Time limits

11

There is a mass of case law trying tointerpret what that means, but the bottomline is that, regardless of what medicaladvice the claimant may have had, thethree-year clock begins to tick from thetime when they believed that the injurywas caused by their work.

So, for instance, a worker exposed toasbestos dust 30 years ago will not haveto worry about time until they have beentold by a doctor that they have acondition that is likely to have been causedby asbestos dust, and the clock beginsfrom there.

Yet someone who has worked inexcessive noise for many years, hasnoticed some loss of hearing for manyyears, and has believed for many years thatwork is the likely cause, is likely to be outof time if more than three years haveelapsed since they formed that belief.

Other time limits

But that’s not all.There are other situationsto which different time limits may apply.For instance, a member may be assaultedat work either by a member of the publicor by a work colleague in which casethere is the likelihood of a successful claimto the Criminal Injuries CompensationAuthority (CICA).

However, the time limit for bringing theseclaims is two years not three. In the samesituation, the injured member assaulted atwork will also have a potential claimagainst the assailant, against whom courtproceedings must be commenced withinsix years.

Members may go abroad on holiday or onbusiness. If they are injured while travellingas a passenger on an aeroplane or a ship,any court proceedings would have to becommenced within two years. If they sufferinjury in a foreign country, and the onlyvalid claim is against a defendant in thatcountry, then they would need to find outthe time limits in the country where the

accident happened. Time limits around theworld vary enormously and some of themare a lot shorter than those that apply inthe UK.

Do time limits matter?

Most certainly.The limits are applied verystrictly, although the courts do havediscretion under Section 33 of theLimitation Act to allow a case to proceedeven though the three-year period hasexpired. This discretion is applied sparingly,however, and usually only if the claimantcan show that the employer has not beenprejudiced by the delay.

So, it’s crucial that trade union reps knowthe importance of time limits to be ableto advise members accordingly. But, overthe years, some have unfortunatelymisinformed members, for exampleadvising them to delay bringing a claim fora long period until after they haveoperative treatment.

Or in another example, advising a womanwith a repetitive strain injury that therewere no time limits applying to thosesorts of cases. Even after the member had

been to the Citizens Advice Bureau andbeen told there was a three year limit, theunion representative told her that “theyhave got that wrong!”

Union representatives must be aware that,if, as a result of their action (or inaction), amember fails to bring the claim in timeand as a result is unable to pursue it, thatmember will have a potential claim fornegligence against the union.This will bethe case whether the representative is afull time officer or a workplacerepresentative.

Advising members

Given the different time limits, it isobviously asking a lot of unionrepresentatives to know the details ofthem all. That is why, in reality, all theyneed to know is that they are importantand that the first question they should aska member is “when did it happen?” It isalso crucial that they advise members toobtain legal advice quickly.

And they should also advise members tobring claims quickly. Even if they are stillwithin the time limit, it is much moredifficult to pursue a case successfully ifthere has been a long delay before seekingadvice.

Memories fade, witnesses die, cannot betraced or leave the country; documentsmay be destroyed, relevant equipmentchanged or sold. It is an uphill struggletrying to piece together the evidence towin a case long after the event. It is fareasier to win a case when the evidence isfresh.

So, the message to all unionrepresentatives is clear. Be aware of thetime limits when advising members, andmake sure that they get legal advicequickly. Union reps often have a majorpart to play in assisting members to wintheir cases. An awareness of theimportance of time limits is thereforecrucial to the success of those cases.

It’s crucial thattrade union repsknow theimportance oftime limits to beable to advisemembersaccordingly

PILR aims to give news and views on developments in health and safety issues and law as they affect trade unions and their members.

This publication is not intended as legal advice on particular cases

To receive regular copies of PILR email: [email protected]

Contributors to this edition:Alison Clarke, Tony Lawton, Judith Gledhill

Editor: Jennie WalshDesign: www.rexclusive.co.ukCover picture: RexClusivePrint: www.dsigroup.com/talisman

Visit us at www.thompsons.law.co.ukEmail us at [email protected]

Thompsons is the largest specialised personal injury and employment rights law fi rm in the UK with an unrivalled network of offi ces and formidable resources.

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Personal Injury Law Review - Autumn 2007 - Issue 4 · 2017. 8. 8. · Personal Injury Law Review...

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Transcript of Personal Injury Law Review - Autumn 2007 - Issue 4 · 2017. 8. 8. · Personal Injury Law Review...