Health&Safety. news. substance. Standing up for you Spring 2014 issue 017

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1 Health&Safety news Spring 2014 issue 017 n Vicarious liability Recent benchmark cases have implications for the way the law is interpreted Pg 2, 5 n Accident and illness abroad The problems faced by those who suffer outside the UK Pg 7 n Difficulty hearing The law relating to noise at work Pg 11 n Water as a hazardous substance The threats faced by firemen and others when working and training with water Pg 14 Standing up for you

2 Vicarious liability Simon Dewsbury explains the implications of a benchmark case that redefines the law for those indirectly responsible for death or injury Vicarious liability and vulnerable service users The Supreme Court decided that they could impose non-delegable duty because of the particular circumstances of the case. THE SUPREME Court has ruled in favour of a 10-year-old who suffered brain damage after an accident during a swimming lesson. Although the tragic case of Woodland -v- Essex County Council (2013) does not relate to employment, it is of relevance because: n it considers the concepts of nondelegable duties and vicarious liability and makes an important extension of the law in this area n it may well affect employers who have chosen to contract out services that involve vulnerable or dependent users of their services. Annie Woodland was a 10-year-old pupil at a junior school in Basildon. She had swimming lessons in normal school hours with the rest of her class. The class teacher was there but a swimming teacher was teaching the swimming and there was a lifeguard in attendance. Annie got into difficulties and was found hanging vertically in the water ; she was resuscitated but suffered a serious brain injury. Annie s parents thought the swimming teacher and lifeguard were at fault in allowing this to happen and wanted to sue. However, although this was a school swimming lesson, the education authority employed neither the swimming teacher nor the lifeguard. The school had contracted with a small company, Direct Swimming Services, who had in turn hired both the swimming teacher and lifeguard. A major difficulty for Annie s parents was that, even if they could successfully sue the swimming services contractor, it was uncertain whether the business had sufficient money to pay any Judgment and did not have adequate insurance cover either. If the swimming teacher and lifeguard had been employed by the education authority (who did have adequate funds and insurance cover) then Annie s parents would have a clear claim against the authority. This is because of the doctrine of vicarious liability. The law of negligence is generally faultbased but if an employee injures someone by their negligent act, then this doctrine makes the employer liable for the fault of the employee. The courts have long ago decided that, in employment cases where an employer has a duty, it is non-delegable. This means that the employer cannot delegate its duty to another, including an independent contractor or an employee. Classic examples include the early employment case of Wilsons and Clyde Coal Co Limited -v- English (1938) AC57; in that case the House of Lords held that the employer had a duty to provide a safe system of work and that the duty was not delegable. Annie s representatives argued that this was a similar situation and that the education authority could not delegate its duties to look after Annie to outside contractors. This was an attempt to extend 2 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

3 Vicarious liability the law of non-delegable duties and for much of the case it looked as if they were not going to succeed (and therefore risk not recovering compensation even if Annie had been injured by negligence). Both the trial judge and the Court of Appeal found against them. However, in the Supreme Court there was a unanimous judgment in Annie s favour (although this was on a preliminary legal point and, 13 years after the accident, the issue of who was actually to blame still has to be decided!). The Supreme Court decided that they could impose non-delegable duty because of the particular circumstances of the case. They held that: n there is a duty because of the relationship between the defendant and the claimant (as opposed to a duty arising from the negligent character of an act) n the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks and not simply a duty to refrain from acting in a way that foreseeably causes injury T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 3

4 Vicarious liability This is to be welcomed, not least because it makes it more difficult for public bodies to absolve themselves from core duties by contracting out n the duty is by virtue of that relationship personal to the defendant. Following on from this, the court found that the duty would not be delegable where: n The claimant is someone who is especially vulnerable or dependent on the protection of the defendant against the risk of injury (for example a patient, a child, a prisoner or a resident in a care home). n The relationship between the claimant and the defen dant puts the claimant in the actual custody or care of the defendant and which gives the defendant a positive duty to protect the claimant from harm. There will be an element of control over the claimant. n The claimant has no control over how the defendant chooses to perform his obligations to the claimant. n The defendant has delegated to a third party tasks that are an integral part of the defendant s positive duty towards the claimant and the third party is carrying out for the defendant its custody or care of the claimant and the element of control that goes with it. As can be seen, all these factors were present and were consistent with the longstanding policy of the law, which was to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of case by those with a significant degree of control over their lives. Basically, in this case Annie had to go to school, had to go to the swimming lesson and had no control over whom the Education Authority chose to look after her during the swimming lesson. The Supreme Court was careful to stress that this was not an open-ended liability and would not extend beyond situations where independent contractors were performing functions that the school has a duty to perform, generally in school hours and on school premises (although this of course was not on school premises). They would not be liable for negligence of contractors where the school s own duty was not to perform the relevant function but only to arrange for its performance. This would include use of independent contractors providing extra curricula activities, for example, school trips in the holidays. However, they could be liable if they were negligent in selecting the contractors (for example if they use an outside contractor who they knew was likely to be negligent). It does not extend to, for example, bus drivers, zoo or museum staff, even if the children were taken there in school hours. This is because those persons would not have control over the child. The court considered that they did not add significantly to the burden of public bodies; the issue was only arising because of the increasing tendency of those bodies to contract out what used to be their core activities. This is to be welcomed, not least because it makes it more difficult for public bodies to absolve themselves from core duties by contracting out. At the very least, they will want to make sure that any independent contractors carry proper and effective insurance. 4 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

5 Vicarious liability Judith Gledhill outlines another landmark case relating to vicarious liability Breach of duty AS WE go to press, Thompsons Solicitors has had a positive result in a case that further extends the law relating to vicarious liability. A full report will be available in the next edition of Health and Safety News. In the case of Susan Elaine Cox -v- Ministry of Justice, Court of Appeal 19 February 2014, Thompsons client, a POA member, was employed by the Ministry of Justice as a catering manager at HM Prison Swansea. She was involved in an accident when supervising prisoners who were unloading supplies from a delivery vehicle. As Mrs Cox bent down to clear up a spillage of rice, one of the prisoners dropped one of the 25kg sacks he was carrying onto her back and neck. This was despite Mrs Cox s instructions that the prisoners stop work until the spillage had been cleared away, which were ignored. A case was brought against the MoJ (the defendant), argued on the basis that the MoJ was vicariously liable for the negligence of the prisoner and that it was in breach of its personal duty to Mrs Cox to provide a safe system of work and appropriately trained staff. In the first instance, the trial judge dismissed claims on the basis that the work being carried out by the prisoner was not akin to employment, and therefore, unlike in regular employment, there was no voluntary or mutual relationship; the work was not undertaken for commercial advantage or to further a business undertaking. Therefore, the MoJ could not be held vicariously liable for the actions of the prisoner. However, leave was given by the Court of Appeal, where three panel judges unanimously agreed to overturn the original decision, finding in favour of the prison worker. The court found that there was vicarious liability because the key determining test was the nature of the relationship between the defendant and the wrongdoer (the tortfeasor, in this case the prisoner). Here the court was satisfied that the T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 5

6 Vicarious liability This landmark case sets a new precedent in how vicarious liability can be applied in situations that may not involve a typical employer-worker relationship relationship was akin to employment. The Court of Appeal Judge, McCombe LJ set out the criteria to be considered when examining the nature of the relationship between a defendant and the tortfeasor: n Does the defendant have the means to compensate the claimant? n Was the tort committed as a result of an activity undertaken on behalf of the defendant? n Was the tortfeasor s activity likely to be part of the business activity of the defendant? n Did the defendant, by employing the tortfeasor to carry on the activity, create the risk of the tort being committed by the tortfeasor? n Was the tortfeasor under the control of the defendant? It was found that the defendant had the means of compensating the client. By assigning the prisoner to the activity of transporting supplies, the MoJ had created the risk of a tort being committed by him. In transporting the supplies, the prisoner was performing a task that was essential to the running of the prison. And, in addition, it was obvious that the prisoner was under the control of the MoJ. The prisoners were bound to the defendant, not by contract, but by their sentences of imprisonment. While the prisoners were paid, the wages were nominal. Although there was not a normal employment relationship, the differences actually rendered the relationship between the prisoners and the defendant in the conduct of this activity closer than a normal working relationship. This landmark case sets a new precedent in how vicarious liability can be applied in situations that may not involve a typical employer-worker relationship, but where the relationship is akin to employment. 6 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

7 Accident and illness abroad Martyn Gwyther looks at the problems faced by people who are injured or suffer illness while they are outside the UK When accident or illness strike abroad SUFFERING AN injury or illness at work or anywhere else in the United Kingdom can be traumatic enough, but when that accident or illness occurs overseas the effects can be even worse. Not only might there be a language barrier to make communication with doctors difficult, but there may also be funding issues that need to be addressed before treatment can be provided. Other common complaints include concerns about treatment facilities and a real sense of fear and isolation that the lack of a support network can lead to. Even when these issues are overcome, there can still be logistical difficulties to face before returning home, such as securing a certificate of fitness to fly, or determining how to retrieve an abandoned car, motorcycle or caravan. And, let s face it, some insurers are better than others when it comes to offering any type of assistance with these kinds of issues. At the end of it all, the injured person could well be forgiven for simply wanting to put the whole affair behind them. But what happens if the incident or cause of the illness was not their fault? Just as with accidents and illnesses that occur in England and Wales, there are circumstances in which it may be possible for the injured person to pursue a claim for personal injury and other losses and expenses even though the events giving rise to the accident or illness have happened overseas. Work-Related Accidents Abroad Increasing numbers of people are now travelling overseas as part of their employment duties with British registered companies. There are many possible reasons for this including: n The development of the European Union providing unrestricted movement within EU countries and the improved rights to trade within that community. n British manufacturing success stories. n Improved transport links and cheaper transportation costs. n Development of international trading relationships and cross-selling of skilled and experienced designers, architects, manufacturers and tradespeople. In any event, large numbers of people now work for British registered companies but in circumstances in which they have to travel overseas to perform their contract of employment. When a person engaged in such employment is injured, do they have to pursue the claim overseas? Or might they be able to bring the action against their employers in England? It may be surprising but the answer to these questions has been evident for quite some time. In particular, the Law Lords in the case of Wilsons & Clyde Coal Company Limited -v- English (1937) 3 All ER 638 determined that there are certain duties that an employer cannot pass onto anyone else. Common complaints include concerns about treatment facilities and a real sense of fear and isolation T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 7

8 Accident and illness abroad These include the duties of providing: n a safe place of work n a safe system of work n safe plant and equipment n competent fellow employees While it is true that this is an old case, the law remains as true today and it is seeing a re-emergence to prominence due to recent legislation known as the Enterprise Act 2013 which, in section 69, precludes an injured party from relying upon the employer s breach of statutory duty as an automatic foundation for a personal injury claim. In the circumstances, if an accident occurs overseas as a result of a failure in any of the above matters then it is highly likely that a claim against the employer in England would have merit and ought to be investigated further. In fact, you might find it difficult to think of ways an accident, illness or disease can arise at work as a result of something other than a failure with the place of work, system of work, plant or equipment or neglect by a fellow employee. Holiday-Related Accidents Abroad According to the Association of British Travel Agents, around 80 per cent of the Case study A Unite member and Jaguar Land Rover employee was seriously injured while working at a vehicle testing site in Dubai. Brian Vaughan was a passenger in a car that was being driven at speed when it crashed into a sand dune. The collision resulted in Mr Vaughan suffering multiple fractures to his left arm, which failed to heal properly. Jaguar Land Rover accepted that the driver of the vehicle fell below the required driving standard and they admitted liability for the accident based on their responsibility for the acts of staff members. Mr Vaughan was eventually able to return to work, although his injuries meant he had to avoid strenuous activity and, therefore, he could no longer be engaged in the same kind of work he was used to. This is an example of how Thompsons, working in conjunction with Mr Vaughan s union UNITE, provided expert legal advice and assistance through their team of overseas injury experts and helped Mr Vaughan to secure compensation, even though the accident happened outside the UK. The compensation enabled Mr Vaughan to access private healthcare specialists who re-built his arm and organised rehabilitation. British population took a holiday in the UK or overseas last year and slightly more than one in five of those holidaymakers stipulated that an overseas holiday was a necessity that they could not do without. When you couple those statistics with Office of National Statistics (ONS) information that the British population is currently around 64 million, there could be as many as a whopping 13,377,000 overseas holidays sold to British tourists each year. Speaking simply, there are typically two ways in which British tourists book these holidays: n Direct with the accommodation or other 8 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

9 Accident and illness abroad service providers, whether by telephone or on the internet n As a package holiday or package deal through a travel agent or tour operator who is based in the UK. Once again, according to the latest published ONS statistics, around 40 per cent of these holidays are purchased as a package. When a holiday is booked directly with the accommodation or other service providers then it is likely that any claim that may arise as a result of an accident or illness would have to be pursued overseas. There is one possible exception to this rule, namely if the service has been purchased on a credit card, in which case the holidaymaker may secure some protection under Section 75 of the Consumer Credit Act 1974 by suing the credit card provider. However, for those travellers who booked a package holiday, if something goes wrong with one of the services that had been purchased as part of the holiday contract arranged by the UK-based travel agent or tour operator, then they will be entitled to bring their personal injury claim against the tour operator in England and Wales, due to the existence of the Package Travel, Package Holidays and Package Tours Regulations So, would this mean that English law applies to the whole of the claim? In part, English law does apply to these claims. Therefore, these claims are run on a fault-based system meaning that the responsibility rests upon the injured person to prove that the hotel or other service provider did something wrong, or that they failed to do something that they ought to have done and that this act or failure to act caused the injury. However, the courts in England and Wales are required to consider the standards by which a hotel or other service provider overseas ought to be judged when answering the question of whether they did something wrong, or whether they failed to do something that they should have done. In other words, should they be tested by reference to English standards, or the standard that exists in the country in which the accident occurred? One of the clearest examples of how this works in practice is the case of Wilson -v- Best Travel Ltd (1993) 1 All ER 353 where a holidaymaker was injured when he fell through a glass patio door while on holiday in Greece. The glass shattered because it was not safety glass and injuries were suffered as a result. Evidence was provided to the court in England to show that, in order to satisfy the relevant British Building Regulations for such patio doors, The courts in England and Wales are required to consider the standards by which a hotel or other service provider overseas ought to be judged T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 9

10 Accident and illness abroad The court was therefore left to determine whether they ought to apply the English standard, or the Greek standard when deciding whether the tour operator had done anything wrong the glass contained within the doorframe would have had to have been safety glass. Further, if the glass used had been safety glass, then the impact would have been insufficient for the glass to have shattered and the injuries would have been avoided. It is therefore easy to see why this claim was run. The defendant provided evidence that the Greek building standards were not the same as the British standards for this type of hotel and, in particular, there was no requirement to use safety glass in Greece. Instead, the type of glass used in this instance satisfied the local standards for the area in which the accident occurred. The court was therefore left to determine whether they ought to apply the English standard, or the Greek standard when deciding whether the tour operator had Case studies Food poisoning is a not an uncommon occurrence on foreign holidays. While it is often just a case of a few days upset, sometimes it can be much more serious. One example is that of Stacey Sewell who contracted salmonella, which led to long-term bowel problems, while on a package holiday in Gran Canaria. Ms Sewell was bed-bound for the whole of her stay and was hospitalised when her pre-existing colitis, which was being effectively managed with medication, flared up after her return home. This painful condition continued to be severe for more than a year. After this, Stacey was diagnosed with the additional problem of postinfective irritable bowel syndrome which had been caused by the salmonella, and which may require significant surgical intervention. Ms Sewell accessed Thompsons Solicitors through her union s legal service. Her holiday operator, Thomas Cook, admitted liability and settled the claim out of court for more than 22,000. It is also worth noting that not all holiday-related accidents happen abroad. Indeed, one case involved a GMB member who fell down a staircase while on her way to board an international flight. Sheila Gilling had to take nine months off work following the fall, which badly dislocated her shoulder, tore her hamstring and caused her to develop Post Traumatic Stress Disorder. The GMB s legal service instructed Thompsons Solicitors who pursued a claim against the flight operator, Thomson Airways Ltd, and settled out of court for 28,000. Thompsons were able to claim under the Montreal Convention, which covers accidents to passengers who travel, or intend to travel, internationally or within the UK, by air. done anything wrong and whether that wrongdoing, if one existed, led to this accident. Sadly for the injured party, the court concluded that it would be unfair to impose English standards on a Greek hotelier in such circumstances. As a result, the claim failed and no compensation was awarded. It is therefore crystal clear that legal representatives in such cases must consider not only the law that applies in England and Wales to determine what the injured party must prove in order to succeed in the claim. Often consideration has also to be given as to whether the standards that exist in the overseas country will have any impact on the prospects of success in the case and, if so, expert evidence may be required on those issues from agents who are based overseas. This means that this type of claim can be complicated and a referral to solicitors such as Thompsons Solicitors, who have a dedicated team of lawyers that specialise in this area of law, is advisable at the earliest possible stage. Other areas of overseas accident claims handled by our specialist overseas accident team include: n work-related accidents abroad n package holiday claims n accidents or illnesses occurring during international carriage by air (Montreal Convention claims) n accidents or illnesses occurring during international carriage by sea (Athens Convention claims) n road traffic accident claims within Europe or the wider European economic area n claims under the Consumer Credit Act 1974 n accident and illness claims in the United States of America n fatal accidents abroad n brain injury and spinal injury occurring overseas The vast majority of holidays, both at home and abroad, are enjoyable and uneventful. However when things do go wrong our specialist team of overseas accident lawyers are there to advise and support you. 10 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

11 Industrial deafness Jon Carlisle looks at the law relating to noise at work Having Difficulty Hearing? INDUSTRIAL DEAFNESS, or noiseinduced hearing loss as it is now called, is nothing new. The term cloth-eared was first used in the cotton mills of Lancashire at the time of the Industrial Revolution. In the opening section of the judgment of one of the first legal cases to consider noise deafness, Thompson & Others -v- Smith Shiprepairers (North Shields) Limited & Ors (1983), the judge, Mr Justice Mustill, stated: It has been known for at least 150 years that persons working in conditions with excessive noise are liable to suffer deafness. In 1886 Thomas Barr delivered a paper which described many of the most important features of what is now called noise-induced hearing loss. Since the beginning of the century, and probably long before, shipyards have been recognised as noisy places, where workers have tended to become deaf. Still with us Nor is it a term that is confined to the history books as a condition suffered by our grandfathers working in traditional noisy heavy industry. Workers such as gardeners, road workers, train drivers, workers involved in motor manufacture and vehicle repair, railway maintenance and in the paper industry, all continue to be exposed to potentially excessive levels of noise. Such levels put them at risk of developing hearing loss and tinnitus (a constant buzzing or ringing in the ears), which is, for many, a debilitating condition. Claiming Compensation The early claims for compensation for noiseinduced hearing loss were brought under the common law of negligence. Employers have a duty to keep their workers reasonably safe and to protect them from known hazards, including excessive noise. In noise damage cases, the duty of the employer was to provide appropriate hearing protection in the form of ear plugs or muffs and to reduce the noise given out by noisy machinery. Initially, it was widely thought that noise levels of 90db could potentially damage an individual s hearing. However, it has since been recognised that lower levels of noise exposure can damage hearing, particularly of those individuals who are susceptible to the damaging effect of noise. The Noise at Work Regulations It took some time for statute to catch up with, and improve on, the common law position. The Noise at Work Regulations 1989 were introduced and followed by the Control of Noise at Work Regulations These regulations require every employer who carries out work that is liable to expose employees to excessive noise to undertake an assessment of the risks to health and safety created by the noise in the workplace, and to estimate the likely exposure of their workforce calculated as an average daily or weekly exposure. If the noise levels exceed recommended limits, the employer must take steps to Employers have a duty to keep their workers reasonably safe and to protect them from known hazards T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 11

12 Industrial deafness Hearing protection that leaves the wearer in a silent bubble will often fail to provide any protection at all as the employee will fail to wear it reduce the levels of noise and, where appropriate, to provide adequate hearing protection. The regulations set three action values that require employers to take certain measures: 1. The Lower Exposure Action Value of a daily or weekly exposure of 80db (A). Likely to be exceeded if the noise level is intrusive but normal conversation is possible and lasts for six hours or more. 2. The Upper Exposure Action Value of a daily or weekly exposure of 85db (A). Likely to be exceeded if you have to shout to talk to someone two metres away and last for two hours or more. 3. The Exposure Limit Value of a daily or weekly exposure of 87db (A). Likely to be exceeded if you have to shout to talk to someone one metre away and lasts for more than 45 minutes. Where the exposure action values are likely to be exceeded, the employer has a duty to ensure that the risk of exposure from noise is either eliminated at source or, where that is not reasonably practicable, reduced to as low a level as reasonably practicable. Where the exposure is at, or above, the Upper Exposure Action Value the employer must establish and implement a programme of organisational and technical measures to reduce the noise level to as low as reasonably practicable. Recommended measures are likely to include changing working methods, introducing work equipment that emits lower levels of noise, improving the design and layout of workplaces, the provision of rest facilities and rest periods, the introduction of appropriate maintenance programs and the reduction of noise by technical means. Risk assessment, noise reduction, health surveillance and education are all key to preventing a workforce from suffering noise damage to the hearing. All too often the employer s approach to a noise problem is merely to provide hearing protection and put signs up in the workplace when for many years now the regulations have been clear that they ought to have been doing much more. Prevention of harm must be paramount and the regulations require employers to engage with the workforce and their health & safety representatives with Regulations 5(5) and 6(7) specifying that the employees concerned or their representatives shall be consulted on the assessment of risk and shall be consulted on the measures to be taken. Hearing protection Hearing protection is all too often provided as the answer to a noise problem when it should in fact be a last resort taken when an employer is unable to reduce the noise levels to below the exposure limits, or as an interim measure while control measures are being developed. Regulation 7 of the Control of Noise at Work Regulations requires an employer to make hearing protectors available on request to any employee who is exposed to the Lower Exposure Action Level and designate any area where the Upper Exposure Action Level is exceeded as a hearing protection zone where the use of the protectors is compulsory and enforced. Where hearing protection is required, careful consideration should be given to the type of protection offered in conjunction with the environment in which it is to be used. Hearing protection that leaves the wearer in a silent bubble will often fail to provide any protection at all as the employee will fail to wear it or keep removing it to converse with colleagues. Providing earmuffs in hot or confined work places is similarly useless since, for comfort or necessity, the workforce will regularly take the muffs off. Health Surveillance It must be remembered that no two individuals are the same. Some workers are more susceptible to hearing damage caused 12 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

13 Industrial deafness by noise than others, and the regulations are clear that noise prevention and protection is only part of the duties of the employer. Regulations 9 and 10 place a duty on the employer to provide regular health surveillance including hearing tests and to educate their employees on the risks from exposure to noise as well as the symptoms to look out for and where to obtain hearing protection, along with how to properly fit and use the protection. Steps to Take While the damage is done at the time of the exposure, it is irreversible and often not noticed by the employee until many years later when the added effects of the aging process, on top of the already damaged ears, brings about a noticeable hearing loss often giving, for example, a 55-year-old the hearing problems he may have expected to only experience at the age of 75. Because it is common that an employee may not be aware of a hearing problem for many years, this brings with it difficulties in pursuing claims for compensation as the employer may no longer be trading and it may not be possible to trace the insurance history of the company. The employers will always seek to refuse claims on the basis that the limitation period has expired. This is the three-year period within which to start court proceedings. The law says that you must start court proceedings within three years of the date from which you first notice your symptoms or ought to have thought these may be due to work. This does not run from the day that a doctor confirms that the problem is due to noise but will have started long before that. In many cases, those affected dismiss the problem assuming that it is just the effect of getting older. The courts in some recent cases have found that, once your family and friends start to complain the TV is too loud or that they are having to repeat themselves, you should be making reasonable enquiries into the problem and the time limit has started to run. It is therefore important that once someone is aware of a potential problem that they seek medical and legal advice quickly. The effects of noise damage can be significant upon the individual with many sufferers complaining that they struggle to hear conversation over any background noise, such as in the pub, causing them to become more socially withdrawn. Then there is the tinnitus, the effects of which can vary from a mild occasional nuisance that is noticeable only in quiet surroundings, to a constant loud ringing that prevents someone from sleeping affecting mood and concentration and, in extreme cases, driving sufferers to contemplate suicide. There is no cure. While digital hearing aids may help to improve the hearing and tinnitus therapy or using tinnitus maskers may help the sufferer cope better, each of these can come at a significant cost. Therefore it is paramount to ensure that employers comply fully with their duties under the Control of Noise at Work Regulations. Where they fail and employees suffer damage they should seek medical and legal advice as early as possible. The more time that passes the more difficult a claim will be to investigate and prove. The term cloth-eared was first used in the cotton mills of Lancashire at the time of the Industrial Revolution T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 13

14 Water safety Kevin Digby explores the risks involved in working with water Water as a hazardous substance The victims of both attacks appealed the court decisions that their employers were not vicariously liable for the assaults WIDESPREAD FLOODING in the south of England has brought into sharp relief the importance of the Environment Agency and the work undertaken by its staff. However, also highly visible in rescues, and playing a vital role, was the fire service. Firefighters are expected to participate in water rescue work and, as does any member of the emergency services involved, face significant risks to their own health and safety. Responsibility for waterways rests with local fire brigades. From rescuing a cow stuck in a dyke to helping those injured in an open water lake or dealing with flooding and other general swift-water rescue situations, the local fire brigade is expected to step in and that means firefighters have to be trained to be able to meet those situations. Training is classroom based but it also, crucially, has to be practical as well, simulating situations that could be encountered by firefighters when faced with an incident involving either (or both) still and fast-flowing water. A challenge for fire authorities has been to find appropriate venues that provide a suitable training environment for each part of the course. Some authorities have chosen to use natural watercourses in their own area whereas others have elected to send firefighters to man-made water centres such as the National Watersports Centre in Nottingham, Rother Valley in Derbyshire and Bala in North Wales. In some instances, fire authorities have used their own instructors to train firefighters, while in other cases they have contracted this out to third-party training companies. Contracting training out is legally acceptable so long as the training organisation selected has the necessary skills and qualifications to provide that training. While the facilities they offer and the skills of those doing the training are of course key, a deciding factor should be the quality of the water trained in, a major challenge for the course organisers (the brigades who deliver them or those with whom they have contracted for them to be delivered). Far greater risk Man-made swift water centres are usually fed by local rivers and are typically designed for canoeists and white water rafting, not for swift-water rescue training. The difference is that it is foreseeable that students swimming in the water are at far greater risk than canoeists of ingesting the water and that means water quality is a much more important factor. The nature of the training courses, particularly in the advanced stages, inevitably means that firefighters are immersed in the water for long periods of time and even the best swimmers will ingest water at some point. Open water contains dangerous waterborne organisms such as campylobacter, cryptosporidium, leptospira 14 T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S

15 Water safety the cause of Weil s Disease and Legionella (with some months providing significantly poorer water conditions than others). The risk for the firefighters who ingest the water is that they become ill. Reactions can include acute vomiting and diarrhoea and it has been known, in some instances, to lead to post-infective irritable bowel syndrome. Thompsons has fought several cases for firefighters based on allegations that the employing fire authority had breached their duties under the Control of Substances Hazardous to Health Regulations, by failing to prevent the ingestion of hazardous biological matter. The training venue can also be liable for failing to provide a safe environment in which to train, free from hazardous biological matter, or for breach of the Control of Substances Hazardous to Health Regulations as their own employees would also be exposed to the substances and this brings them under the remit of the regulations. There is no doubt that the courses and training are necessary and the fantastic work done by the local fire brigades in flooded areas this year (and for years before) has shown how vital the skills they learn can be. But injuring workers in the course of training is almost always avoidable. Whether it is a care worker injured in lifting training, a nurse injured while being taught restraint techniques, or firefighters ingesting untreated and inadequately tested water at a training centre, legal liability will follow. Basic steps in health and safety like risk assessments of when in the year the training should take place and water testing before it takes place should influence the decision about whether or not the training should go ahead. Firefighters are not alone in being exposed to bacteria in water. Other frontline services, such as utility workers, council workers and environment agency workers, may encounter similar risks particularly those working in refuse and sewerage. The mode of infection may be different through broken skin rather than ingestion but the risks of infection are as significant and shouldn t be underplayed. Protective personal equipment has an important role to play where attempts to prevent exposure to hazardous substances by other means has failed. T H O M P S O N S S O L I C I T O R S H E A LT H A N D S A F E T Y N E W S 15

16 Health and Safety News 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. Download this issue at To join the mailing list Contributors to this edition: Jon Carlisle, Simon Dewsbury, Kevin Digby, Judith Gledhill, Martyn Gwyther. Design: Front Cover: Rex Anderson Standing up for you

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