Quarterly Unison Report (Personal Injury) July - September 2013

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1 Quarterly Unison Report (Personal Injury) July - September 2013

2 PART 1 OVERVIEW We are pleased to provide a further report for Unison Personal Injury referrals, on this occasion, for the period July to September We have provided within this third report of 2013 details of some of the most noteworthy cases which have settled in the quarter along with case statistics and an analysis of same. We have also noted recent legal developments which may be of interest to you in Part 4. PART 1 HEADLINE STATISTICS PART 2 DETAILED STATISTICS & ANALYSIS PART 3 NOTEABLE CASES PART 4 - RECENT DEVELOPMENTS 4.1. You ve Been Served Tennis Player Sues Club After he Slips on Court 4.2. Under Par Risk Assessment Results in Successful Claim for Golfer 4.3. The Enterprise and Regulatory Reform Act 2013 Destroying 25 Years of Good Work 4.4. A Victory for Common Law Page 1

3 PART 1 HEADLINE STATISTICS The headline statistics for July to September 2013 are as follows:- 226 cases opened; 99 successful cases concluded; 863, obtained in damages; 8,720 average award in each case; 287,781 average damages per month; 42% of cases unable to proceed; 162 wills prepared; 92 members were given general free legal advice; 4 members sought conveyancing advice or assistance. Of those 226 Personal Injury cases opened, 152 were for female members and 74 for male members. The age brackets for those referrals are as follows:- Under 16 years 2 cases years 3 cases years 12 cases years 51 cases 50+ years 158 cases Page 2

4 PART 2 DETAILED STATISTICS & ANALYSIS Referrals: - There were no referrals recorded from the Electricity, Transport/Water, Gas, Voluntary or Frizzell sections. Page 3

5 These stats may be more easily viewed on a chart:- Assaults civil Contact with Hot Substance Contact with Sharp Objects Exposure to Chemicals Infectious disease Lung disease Manual Handling Lifting Manual Handling Other Needlestick Noise Ind Deafness Other Road Traffic Accident These statistics signify a very successful quarter. We concluded 99 successful cases this quarter and secured damages of 863,345.84, an average of 8,720 per case. A total of 226 new cases were opened, an increase from 175 last quarter. As usual the majority of these new cases were in relation to accidents at work and for female members over the age of 50. It is important that union representatives remain vigilant and encourage employees to report accidents and near misses in the hope of avoiding any other similar incidents. This is particularly important given the changes brought in by the Enterprise and Regulatory Reform Act 2013 as discussed in the article at 4.3 below. The number of referrals for road traffic accident cases increased to 29 this quarter, a significant increase from 14 last quarter. Members should bear in mind that their family members are also entitled to assistance if they are involved in road traffic accidents. By pursuing a claim with Thompsons members and their families guarantee the best possible service and ensure they receive 100% of the damages awarded. Other firms and claims management companies will take a deduction of the overall damages awarded. Page 4

6 Your members continue to make good use of their entitlement to free legal advice with 92 members requesting advice during this quarter. Likewise members continue to avail themselves of the free will service. During this quarter 162 members requested a free will. In addition 5 members sought advice in relation to conveyancing issues. It is encouraging to note that more and more members are taking advantage of the benefits extended to them as a result of their union membership. Page 5

7 PART 3 NOTEABLE CASES (Cases have been anonymised as members have not provided their permission to publish the case details) 3.1 Member Injured in Riot Pursues Successful Claim We were instructed to investigate a claim for compensation arising out of an incident that occurred in the course of your member s employment on 30 March 2008 when she was employed in a residential children s unit as a social care worker. At the time of the incident your member was working on the football field with the residents of one unit when the residents of another unit broke away from their social care worker and joined the residents on the football field. The residents began to arm themselves with broken goalposts and shards of plastic from the damaged plastic wall as weapons and also began to set fires. Your member had previously received death threats from the residents and was in fear for her life. The staff was subjected to extreme violence which your member witnessed however the manager of the unit refused to call the police. By the time the police were called a full scale riot was in process and a large fire had broken out. Your member was eventually rescued hours later and the situation was calmed. As a result of the circumstances she faced, your member suffered a severe psychological injury. A claim was intimated to her employers. Liability was not admitted so a court action was raised in the Court of Session in Edinburgh. The employers continued to deny liability however they failed to provide a substantial defence. This case settled at a meeting a few weeks before the final court hearing in the sum of 30,000 which was a very good result. 3.2 Successful Claim to MIB When Negligent Driver Could Not Be Traced Your member came to us following an accident out with the course of his employment on 20 October He was involved in an RTA while driving a Kawasaki Ninja Motorbike along the A70 just outside Coylton Village. As he proceeded to overtake a car, the car also pulled out and drove your member off the road. He sustained an injury to his neck and a concussion. The accident was reported to the police. Page 6

8 Your member was unable to provide any details for the car which was involved in the accident. We obtained the police report and the police report also had no details of the car involved. The police report contained witness details and we wrote to the witnesses but they again were unable to provide any details of the driver or the car which was involved in the accident. A claim was intimated to the Motor Insurers Bureau as the driver could not be traced. They carried out their investigations, including speaking to witnesses and sending your member for a medical examination. They advised that they were willing to offer 3,250 in settlement of your member s injuries. The offer of 3,250 was discussed with your member and he advised that he was incredibly happy with this amount. He therefore advised us to accept this offer in full and final settlement of his claim. Your members should remember that we can assist them following a road traffic accident even if the driver is uninsured or cannot be traced. In circumstances like these we will pursue a claim against the Motor Insurers Bureau and ensure the best possible settlement for the member. 3.3 The Impact of Needle Stick Injuries Your member was involved in an accident in the course of her employment with Glasgow City Council as a housing support officer on 6 September On that date she was accompanying a service user to the sexual health clinic for treatment. Once at the sexual health clinic one of the nurses invited your member into the treatment room. She advised your member that the treatment was finished however when your member reached the treatment room she discovered that the treatment was not yet finished. The nurse was in the process of taking blood from the service user and after she had done so she accidently stuck the used needle in your member s left knee. As a result of this accident your member had very real concerns that she had contracted HIV or Hepatitis C. The service user was being tested for both at the time of the incident. Your member suffered from stress and anxiety until she received the results of her test. Thankfully your member did not contract any blood borne diseases however she did continue to experience anxiety and feelings of anger following the accident. Page 7

9 Liability was quickly admitted by the health board that employed the nurse. The health board put forward an initial offer of 1,250. We advised your member that we thought this offer was too low. The health board then confirmed that they were prepared to increase the offer to 2,500 without the need to obtain a report from a Consultant Psychiatrist. Your member was pleased to accept this offer as she did not want to attend a Consultant Psychiatrist for the purposes of a report. This accident was easily avoidable. The nurse should not have called your member into the treatment room until the treatment was finished and obviously should not have accidently jabbed your member s left knee with a needle. Unfortunately needle stick injuries continue to happen to healthcare workers and members should remember that even if they have not sustained a physical injury they are entitled to compensation for the stress and anxiety they experience. 3.4 The Effect of the Enterprise and Regulatory Reform Act 2013 Your member is employed with Glasgow City Council and works within a home for the elderly. She was injured on 18 July At the time of her accident your member and her colleague were carrying out filing duties in the office. As her colleague opened the top drawer of a four drawer metal filing cabinet, the cabinet tipped towards the colleague. Your member immediately attempted to assist her colleague and in doing so was injured by the tipping cabinet. Your member sustained an injury to her left forearm and chest. The cabinet was not fitted with any device or locking mechanism to prevent it from tipping. Despite the straightforward nature of the injury and the fault that attaches to the employers under the Provision and Use of Work Equipment Regulations 1998, the legal advisors acting for Glasgow City Council would not enter in to settlement discussions. A court action was therefore raised. A medical report confirmed that your member sustained contusions to her arm and chest wall. She was absent from work for 4 months and during that period while receiving her basic earnings lost out on overtime. Page 8

10 Once a court action was raised the other side put forward a formal offer of 4,000. On our advice your member rejected that offer and following further negotiation an increased offer of 5,000 was accepted. Your member was pleased with the result. This is an example of how useful the strict liability provisions under the Provision and Use of Work Equipment Regulations 1998 were before the enactment of the Enterprise and Regulatory Reform Act As a result of the Enterprise and Regulatory Reform Act 2013 which came into force on 1 October 2013 workers will no longer be able to rely on breaches of the health and safety regulations when pursuing civil claims. If members are employed by emanations of the State such as local Councils or the NHS they will however be able to rely on the EU Directives from which the Regulations stem. If this accident had occurred after 1 October 2013 it would have unfortunately been more difficult to establish liability. In future similar cases it will be even more important to obtain copies of the accident report forms, information from witnesses and information regarding other similar accidents, near misses or complaints. It has never been more important that these occurrences are properly documented. Page 9

11 PART 4 RECENT DEVELOPMENTS 4.1. You ve Been Served Tennis Player Sues Club After he Slips on Court As all tennis and Wimbledon fans will know some of the world s best tennis players were knocked out in the early rounds of this year s Wimbledon tournament and many of those players were seen slipping repeatedly on the Court. Thankfully no serious injuries were sustained however the same cannot be said for the pursuer in a recent Scottish case, Mr Glennie, who broke his ankle whilst playing tennis and blamed moss on the court of his local tennis club. In this case the tennis club presented evidence that the court was inspected daily and tick sheets were completed as proof. The club argued that had moss been found the court would have been closed to members. It was also established that the courts were inspected weekly for moss and treated annually for moss. Mr Glennie on the other hand gave evidence that there were two or three patches of moss which were 12 inches in diameter. He did not however complain about the moss until some time after the accident and did not bring it to the attention of staff when waiting for the ambulance. The court therefore did not believe Mr Glennie s account and his case failed. The Judge specifically commented that a tennis court is noted to be inherently slippery and this is a risk of which the user, a competent tennis player and club member, would be aware. Claim, set and match! This case demonstrates the need for contemporaneous evidence such as accident report forms, photographs and witness evidence when bringing a case under Occupier s Liability (Scotland) Act In order for a claim to be successful the pursuer must be able to establish that the accident happened in the manner in which he/she claims it did and that the accident was reasonably foreseeable and therefore that it should have been prevented. Members should remember that their Union and Thompsons can support them with any type of personal injury claim and not just accidents at work. This includes sports related injuries and occupier s liability claims. Page 10

12 4.2. Under Par Risk Assessment Results in Successful Claim for Golfer A golfer, Anthony Phee, has won a court action against the operator of a golf course and a fellow golfer after he was struck by a ball on the course. Another golfer hit a bad shot and shouted fore as a warning, however Mr Phee was a novice and did not realise what this meant therefore he did not react quickly enough. The ball struck him in the eye and resulted in him losing the sight in his eye. The judge in this case found that the golfer was over confident in his shot and should not have taken the shot when people, including Mr Phee, were walking close to the tee. The court also concluded that the golf club had failed in the duties they owed to Mr Phee as they ought to have placed warning signs within the area where he was standing warning him of the dangers of that particular area of the course. The club failed to adequately risk assess the course. The court rejected the argument that Mr Phee was partly to blame for failing to duck accepting that the he was a novice who only had a second to react to a term that he had not been made familiar with. The judge at first instance held the golfer was 70% liable and the club was 30% liable for the injuries Mr Phee suffered. This was appealed by both the club and the golfer who both sought to have some of the blame placed upon Mr Phee. The appeal court was of the view that no blame rested with Mr Phee and in fact the lion s share of the blame rested with the golf club. They apportioned 20% of the liability to the fellow golfer and 80% to the golf club. This case highlights the importance of carrying out risk assessments and will no doubt serve as a warning to golf clubs in the future. Union member ought to remember that their union legal scheme extends to accidents out with work and if they find themselves in situation where they have been injured through the fault and negligence of someone else they should contact Thompsons for help and advice. Page 11

13 4.3. The Enterprise and Regulatory Reform Act 2013 Destroying 25 Years of Good Work We have previously reported on the effect of the Enterprise and Regulatory Reform Act This Act came into force on 1 st October 2013 and dramatically changes the law in relation to accidents at work. This Act deprives workers of the right to pursue civil claims based on breaches of the various workplace health and safety regulations which have been in place for over 25 years. This means that in many cases victims of injury will only be able to rely on the common law. Unfortunately this Act heralds a new era and eliminates rights workers have enjoyed for the last 25 years. In anticipation of the changes we at Thompsons have been thinking about how to successfully pursue cases, as we have in the past, despite the Government s attempts to reduce health and safety standards. We have also been thinking about how Union members and reps can assist. When relying on the common law the most important thing is establishing foreseeability on the part of the employer. This means that it is essential that all near misses and accidents are recorded in the accident book. All complaints should also be formally logged. This ensures that we can prove prior knowledge on the part of the employer and therefore show that the employer could and should have done something to prevent the accident. Additionally reps should ensure that there is a union presence at all health and safety meetings and minutes are recorded and kept for future use if required. We are likely to need reports from liability experts in many cases to be able to prove that the standard which should have been met has not been. It is useful for them to have information relating to previous accidents and complaints. Union reps will also be able to assist by providing copies of any available risk assessments. In some particular circumstances the EU Directives from which the Regulations derive may still be applicable. Any employee of an emanation of the state such as NHS and Council employees will still be able to rely on the EU Directives, which generally although not entirely offer the same protection as the Regulations. Additionally, the Regulations will still apply to pregnant and nursing mothers. At Thompsons we shall be making use of EU law not previously required wherever applicable. Page 12

14 Whilst the changes mean that we can no longer rely directly upon breaches of the Regulations, these Regulations have been in place for over 25 years and have set the standard for health and safety within workplaces. It is this standard which should remain and will be referred to when intimating future claims in an effort to ensure that the risk of accidents within the workplace does not increase. In all cases members ought to remember to report their accident at the earliest opportunity and seek advice from their Union and Thompsons as to whether or not they have a case as soon as possible. Cases will likely take longer to pursue and investigate following the changes and members ought to be aware that they only have three years from the date of accident within which to make a claim therefore the more time available for investigation the more successful a case is likely to be A Victory for Common Law A very recent decision by Lord McEwan has strengthened the position of Scottish workers and will assist in ensuring that employees health and safety remains paramount even now that the Enterprise and Regulatory Reform Act 2013 has been brought in to force. In the recent case, Tracey Kennedy, a home carer employed by Cordia (Services) LLP slipped on an icy path while walking into a housing estate in Glasgow during the severe winter of 2010 as she attended the home of a terminally ill patient. Due to the nature of the service required she could not re-schedule the visit and described walking across the path like walking across a sheet of glass covered by snow. The path had not been gritted. The Judge in this case decided that Cordia failed in their duties under the Personal Protective Equipment at Work Regulations 1992 as they did not provide suitable PPE for a situation where they could not control the risk of slipping on ice by means which were equally or more effective. The Judge found that cheap over the shoe attachments which would have prevented the accident were being used by other employers and local authorities and could have been provided in this case. The court also held that Cordia had failed to undertake a suitable risk assessment and rejected the argument that the employee could have chosen not to go out in the treacherous weather conditions. Page 13

15 The Judge in this case noted that everyone has to live and work during poor weather conditions but that Safety is to be levelled upwards in Winter conditions. His findings were based upon the employer s breach of duties under the Personal Protective Equipment at Work Regulations 1992 however it was noted that Ms Kennedy s case would still have succeeded under common law as the poor conditions posed an obvious and continuing risk. This decision is particularly significant since the Enterprise and Regulatory Reform Act 2013 came into force on 1 October 2013 meaning victims of injury in Scotland will now need to rely heavily upon the common law to establish negligence. Employees will no longer be able to rely on health and safety regulations to bring civil claims for injury where the injury has been caused by their employer s breach of the regulations. This case highlights the need for employers to adequately assess all risks faced by their employees and take action to prevent injury without using poor weather as a get out of jail free card. Page 14

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