£3.625mn Damages for Batched Brain Operation

A woman who was left severely brain damaged and wheelchair-bound after a neuro-surgeon attempted to remove a brain cyst with a pair of medical tweezers expected to receive £3.625mn in damages.

The 49-year-old former care home worker was admitted to the neurosurgery unit after a CT scan revealed she had a benign colloid cyst on the brain. According to her lawyer, the surgeon not only accessed the cyst "using the wrong surgical approach but attempted to biopsy the cyst by tugging at it with rongeurs (medical tweezers). In fact the cyst was attached to a vein and as a result caused a large brain hemorrhage."

As a result of the surgical errors, she is now completely paralyzed and her left side, has severe memory loss, mental impairment, is partially blind and has no sense of smell. After initial reluctance to admit any negligence, the hospital admitted liability after independent medical experts Confirmed that her injuries arose because of the way her brain operation was carried out.

The settlement of £3.625 million consists of a lump sum of £1.325 million and a £120,000 annual payment guaranteed for life.

HSE Report into the Cost of Occupational Asthma

The Health and Safety Executive has published a report into the cost of occupational asthma in Great Britain. The HSE commissioned Metroeconomica Limited, 'the Institute of Occupational Medicine (IOM), and the University of Aberdeen to develop detailed estimates of the cost of occupational asthma in Great Britain.

The report was commissioned in order to help to raise awareness among employers, workers, and policy-makers as to the potential gains to be realized from adopting measures to reduce the incidence of occupational asthma. In 2000 the Health and Safety Commission (WSC) published a long-term {10-year) occupational health strategy for Great Britain, setting an ambitious target for occupational asthma of a reduction of 30% in newly incident easts by 2010.

The report found:

• The 'average' worker suffering from occupational asthma is estimated to lose between 3, 5 and just over 4.5 work days per year. A worker with milder or mote severe occupational asthma is estimated to lose close to two and 10 work days per year respectively.


• The total number of newly reported cases of occupa¬tional asthma in Great Britain in 2003 was 631, of which 442 were male workers and 189 were female workers.


• The total lifetime costs to society of these new cases of occupational asthma are estimated to range from about £3.4mn to £4.8mn per year over the lifetime of the disease. If comparable numbers of new cases were diagnosed in 2004, 2005, 2006 and so on, this would give rise to additional streams of lifetime costs of similar magnitude.
  


• Allowing for the fact that the number of new cases of occupational asthma diagnosed in 2003 is under-reported by up to one-third,the total lifetime costs to society could be as high as ,£95.6mn to £133.5mn.
  


• The estimated total lifetime costs to society are made up of costs incurred by the individual, employers and the state ('taxpayers'). The largest cost burden falls on the individual worker (who incurs about 49% of total costs),followed very closely by- taxpayers (who incur about47% of total costs).In contrast, employers of workers diagnosed with occupational asthma in 2003 only incur about 4% of total costs.
  


• There appears,therefore, to be little incentive for employers to reduce the incidence of new cases of occupational asthma in Great Britain, despite the fact that significant benefits would accrue to the rest .of society: benefits to the state and employees could be as high as £69,7mn and £96.3mn over the lifetime of those workers diagnosed with the disease.

Employment Law

Quantum Claims have a dedicated Employment Team . Two of our Team, Frank Lefevre and Christine McCrossan are accredited by the Law Society of Scotland as Specialists in Employment Law.

Cost

Funding an employment claim can be very expensive, a very daunting prospect for an employee who has just lost or possibly going to lose his or her income.

As Quantum Claims operate on a "no win no fee" basis there are no cost issues to consider and should a claim not succeed the employee is no worse off financially.

Quantum Claims cover every type of employment dispute. The following types of claim are heard by Employment Tribunals. Professional and competent representation will greatly increase the prospects of bringing any claim to a successful conclusion.

Unfair Dismissal

When an employee is dismissed he/she may have a right to pursue their former employer for a claim for unfair dismissal.

At Quantum Claims we carefully assess each individual claim. Unlike some Trade Unions we do not reject claims on the basis of an assessment that they have less than a 50% chance of success. Each case is considered on its own merits. We will

not take poor cases to Tribunal but we are not afraid to fight hard cases in this ever developing area of law.

Unfair Selection for Redundancy

Redundancy situations are commonplace in today's working environment. However the employer has a duty to embark on a fair process when deciding as to who they select for redundancy.

On many occasions the procedures adopted by employers are flawed and give rise to a claim for unfair selection for redundancy.

We have many years of experience in dealing with this type of claim and have a high success rate.

Unfair Constructive Dismissal

On occasion an employee will leave his/her employment as a result of the behaviour of their employer. If the employer has breached the terms and conditions of the employee's Contract of Employment then the employee may have a claim for Constructive Dismissal.
These types of claims are often very difficult to progress successfully but our skilled Team deal with them on a regular basis with a high rate of success.

Discrimination Cases

Perhaps the most significant development in Employment Law has been the continued evolvement of Discrimination Law. Whilst Sexual and Racial

Discrimination legislation has been in place for several decades there is now protection for employees who are discriminated against on the grounds of Disability, Sexual and Religious orientation.

Any claim involving discrimination requires specialist advice which is what we at Quantum Claims are able to provide.

Equal Pay

The general principle of equal pay is easy to state. Men and women should receive equal pay for equal work and for work of equal value. Put another way there should be no sex discrimination in relation to pay.

This is another area of Employment Law where specialist representation can assist in bringing a claim to a successful conclusion.

Breach of Contract

An employer who withholds wages, fails to pay the minimum wage, does not pay an employee the correct amount of notice pay on termination of employment, or does not grant an employee four weeks annual leave may be in Breach of Contract. There are remedies available to employees where Contracts of Employment are breached by the employer.
Employment Tribunals can hear claims up to a value of £25,000. We deal with these types of cases on a daily basis and are able to provide sound advice for any employee who may have a claim.

Disability Discrimination Case

An employment tribunal has ruled that an employer directly discriminated against the blind employee when they dismissed her without investigating whether any reasonable adjustments could be made.

The woman was employed as a receptionist/nursing assistant at a veternary centre. Following a stroke, she lost the sight in both eyes.When the centre was informed of this, they dismissed her as they believed that she would no longer be able to carry out her duties, particularly those of nursing assistant. They did not meet with her or consider whether any adjustments could be made before taking the decision to dismiss her. She brought claims for unfair dismissal and disability discrimination.

Sickness not Equated with Disability

A person dismissed purely on account of sickness was not discriminated against on grounds of “disability” in the meaning of, and therefore did not come within the scope of, Council Directive 2000/78/EC on equal treatment in employment and occupation.

The Grand Chamber of the Court of Justice of the European Communities so held on a reference for a preliminary ruling by the Juzgado de lo Social No 33 de Madrid, Spain.

The Court said that “disability” in the context of the Directive referred to a limitation resulting from physical, mental or psychological impairments which hindered participation in professional life over a long period of time.

“Sickness” could not be equated with “disability”.A person who had been dismissed solely on account of sickness therefore did not fall within the Directive.

One in 10 Employees Injured at Work

One in 10 people has sustained an injury in the work place in the past five years, according to new research from AXA Insurance. AXA’s Study revealed that whilst employee injuries ( are most likely to be caused by work related accidents (81%), for example, using machinery and tripping over, 8% of work related injuries sustained by employees resulted from physical assault either by a customer or collegue.

Suprisingly, the professional services industry, which includes lawyers , consultants and accountants, experienced the highest level of physical assault with as many as 15% of employees working in the sector being assaulted by a customer.

The study also revealed that employees who work for large companies (250 employees or more) are almost twice as likely to suffer an injury whilst working compared to those employed by small and medium sized companies (10 – 250 employees).

Like SME’s, smaller businesses (one to nine employees) also had a better record for workplace accidents and injuries when compared with large companies – 17% of small business employees have suffered injuries at work compared to 47% in large companies.

Workplace accidents account for the most injuries at work and one third of all injuries are the result of falls or trips. Strains and sprains are the most common result of an accident – 34% of workplace accidents resulted in these types of injuries.

The AXA study also found that employees aged over 50 are most likely to fall whilst doing their job (47%) compared to 28% of 18 – 29 year olds, and nearly one in 10 of those injured UK employees (9%) complain of Repetitive Strain Injury (RSI) or other injuries caused by the working environment.

Most common accidents and resulting injuries sustained in the workplace:
How accident / injury happened	Percentage of people who have suffered this in the past five years
Fall, slip or trip	33%
Kitchen accident	19%
Lifting	11%
Inappropriate working environment	9%
Industrial machinery accident	6%
Vehicle road accident	4%
Contact with dangerous substances	3%
Most common injuries sustained	Percentage of people who have suffered this in the past five years
Musculoskeletal disorder (back pain, strains and sprained muscles)	34%
Cut(s)	28%
Burn(s)	21%
Broken bone(s)	11%
Loss of mobility	6%
Headaches	4%
Knocked unconscious	3%

Quantum Claims Client Testimonial

Dear Sirs,

I had no particular desire to gain financially from my fall but when the party involved gave no assistance indeed no sorry words, nor phone call next day when I returned from hospital, as to my well-being, my only option for redress was a letter to Quantum Claims. There my wish was granted as not only did I get my grievance aired to my satisfaction in the courtroom but also the £3000 came in handy for the electric bed and other help aids I now have.

Thank you Quantum Claims.

Philip G. Taylor

Summary of the Key Points on Stress at Work Cases (Taken from Hale LJ’s judgement)

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do.The ordinary principles of employer's liability apply.

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components:

(a) an injury to health (as distinct from occupational stress) which

(b) is attributable to stress at work (as distinct from other factors).

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known Individual than in the population at large. An employer is-usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

(4) The test Is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee. Is the Workload much greater than is normal far the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs, or are there signs that others doing this fob are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job at the same department?

(b) Signs from the employee of Impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has goad reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the casts and practicability of preventing it, and the justifications far running the risk.

(9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the Interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

(10) An employer can only reasonably be expected to take steps which are likely to do some good; the court is likely to need expert evidence on this.

The Court of Appeal on Employee Psychiatric Injury

The Court of Appeal stated that an employer will escape liability for an employee's psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. The Court proceeded to consider the circumstances in which ir can be said to be reasonably foreseeable that a psychiatric injury will occur. They stated that there are no occupations so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

In the Court's view, tie answer to the question of foreseeability will depend upon tiie relationship between the particular demands of a job and the particular characteristics of the employee concerned.With this in mind, the Court listed a number of factors chat were relevant to the issue of foreseeability. These factors were split into two groups, one relating to the demands of the job and the other to the employee's circumstances.

The first group included the following considerations:

• The nature and extent of die work done by the employee
• Whether the employee's workload is much greater than is normal for the kind of job which he or she performs
• Whether the employee's work is particularly intellectually or emotionally demanding
• Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs
• Whether there are signs that others doing the same job are suffering harmful levels of stress
• Whether there is an abnormal level of sickness or absenteeism in the employee's job or department.
• The second group of factors reflected the Court's view that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant:
• Whether there are signs from the employee of impending harm to health
• Whether the employee has a particular problem or vulnerability
• Whether the employee has already suffered from illness attributable to stress at work
• Whether there have recendy been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

The Court went on to state that an employer will be entided to assume that an employee can cope with the normal pressures of a job unless he knows of something specific about the job or the individual concerned that should make him consider the issue of psychiatric injury. As for the question of how much an employer is expected to know about an individual employee's circumstances, the Court stated that an employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employee at face value.

In conclusion, the Court stated that a duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

Duty to take steps

The Court then moved on to warn against the assumption that an employer will always be in breach of his duty of care if he fails to take steps to prevent an employee from suffering a reasonably foreseeable psychiatric illness. A number of factors must be considered before one can conclude that an employer is under a duty to take steps. These include the magnitude of the risk of psychiatric injury occurring; the gravity of the injury which may be suffered; the cost and practicability of preventing such injury -particularly in view of the employer's resources; the effect that any steps taken would have upon the employer's other employees; and whether such steps would actually prevent the injury occurring.

The Court had two further comments about the steps that an employer might be expected to take. First, they stated that an employer who offers a confidential advice service, including counselling or treatment, is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear. Secondly, they stated that one step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the Court's view, an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.

Causation and damages

Even where an employer has breached the duty of care owed to an employee, and where the employee has suffered psychiatric injury, the employee in question still has to demonstrate that the breach of duty has caused or materially contributed to his or her injury.

The Court went on to note that, unless an employee's psychiatric injury is indivisible from the employer's breach of duty, where a psychiatric injury has more than one cause, the employer should only pay for the proportion of the injury attributable to his breach. The Court further noted that an assessment of damages will take account of any pre-existing disorder or vulnerability which, the employee had, and the possibility that the employee would have suffered a psychiatric injury notwithstanding the employer's breach of duty.

The Court summarised their guidance, listing 16 key principles, which we reproduce in the box on page 5. Then, having set out the relevant law, the Court of Appeal moved on to apply that law to the facts of the four cases in question.

The Hatton case

H taught in a comprehensive school in Liverpool from 1980 until 1995. In 1989, following the break-up of hex marriage, she took two months off work with depression, hi January 1994 she took a further month off after she was attacked in the street. In April 1994 she was sent home for the rest of the term when her son was admitted to hospital. She saw a stress counsellor in August 1994 but did not mention this to her employer. In October 1995 she was signed off work with depression, never to return. At no stage had H complained to her employer about her workload, which in any event, had been no more burdensome than that of any other teacher in a similar school. The county court found H's employer liable in respect of H's psychiatric injury and awarded H damages of over £90,000.

The Court of Appeal overturned the county court's decision. They held that H's employer had not been under a duty to take steps to prevent H suffering a psychiatric injury because it had not been reasonable foreseeable, by reference to H's workload and pattern of absence, that she was likely to suffer such an injury as a result of occupational stress. In the Court’s view H's employer could not have been expected to examine further the causes of H's absences when H attributed them to problems at home. The Court added that, in any event, the county court judge had not identified a specific breach of duty which had contributed to H's psychiatric illness.

Employers Liability for Stress Injury at Work

Over recent years Quantum has received an ever increasing number of enquiries regarding stress injury and/or harassment at work , often relating to unrealistic work expectations and excessive working hours.

Although it is an area which often crosses over into employment law, and in particular constructive dismissal, in a number of instances civil cases have been pursued and more recently have achieved some success by way of Court Judgment.

An employer is under a duty to take reasonable care to ensure that his employees do not suffer injuries at work. Where an employer breaches this duty, and an employee suffers a reasonably foreseeable injury as a result, the employer will be liable to the employee. In 2002 a number of cases proceeded through the Court of Appeal in England, which by way of Judgment produced guidelines which were able to be referred to when considering the merits of a potential claim.(Sutherland)

The Court focused on the key issues of when a psychiatric injury can be said to have been reasonably foreseeable; what an employer can reasonably be expected to do to prevent such an injury; and the difficulty of ascertaining the cause of such an injury.

The Appeal Court also helpfully provided a summary of the key points to be considered regarding stress at work cases, which we would detail as follows.

The principals or guidance as detailed above were revisited following the Court of Appeal Judgments in the cases Hartman –v- South Essex Mental Health and Community Care NHS Trust ET SEQ, heard in 2005.

Generally speaking, the principles/guidelines as detailed above were followed, although some concern was expressed regarding the fact that the said guidelines are not intended to cover all the facts of all cases which arise, and that the main difficulties with such cases were with regard to establishing “foreseeability” from an employer’s perspective.

The existence of foreseeability must depend upon what an employer knew, or what reasonably he should have known, about his individual employee. Thereafter the employer can only reasonably be expected to take measures which are likely to do some good, and expert evidence is required in this regard.

Following the “Hatton” cases it was expressly submitted and recognised that claims for psychiatric injury arising from stress at work could be the “next growth area”. Following the “Hartman” cases despite the difficulties and further explanation of the test to be applied, there was the potential that this could still be a possibility.

More recently, as stated initially in this article, there have been further Court Decisions which have found in favour of the pursuer.

In Tracey Ann Dow –v- Intel Corporation, the employer appealed against the High Court’s finding that it had been negligent in dealing with an employee who suffered a breakdown due to overwork.

It was found that the employee was acknowledged to be a very good worker. The employee had made written and verbal representations to managers about lack of resources and excessive hours she was working. The court found that the injury to health was foreseeable, the employer negligent and damages of £134,000 were awarded.

The employer argued that the court placed too high a burden on it because the period between the date upon which ill health became foreseeable and the date upon which ill health occurred was very short. The employer maintained that procedures had been put in place quickly but in this particular case it was adjudged that acting quickly was not enough, immediate action was required. Another argument related to the employer’s view that his provision of a counselling service for use by employees was sufficient to discharge his duty of care (reference to Sutherland –v- Hatton).

The court said that provision of such a counselling service was not of itself a panacea by which duty of care could be discharged. Provision of a Counseller may assist but if the real problems relates to impossible workloads then the courts will not accept that just providing counselling deals with the reality of the situation.

The above case followed Tina Marie Hiles –v- South Gloucestershire NHS Primary Care Trust (2006) where the claimant relied on incidents where she exhibited signs of distress as evidence of foreseeability – and won damages.

In the case of Clark –v- The Chief Constable of Essex Police (2006) a Police Officer alleged that he experienced sustained bullying, harassment and intimidation from fellow Officers, one of whom was his Line Manager over a number of years. In addition, he was demoted and eventually retired from active service on medical grounds, suffering from Post Traumatic Stress Disorder, depression and shingles (brought on by the stress). The key issue in this case was foreseeability. The Judge concluded that on the evidence it was foreseeable that the acts of the Chief Constable’s employees could lead to mental and physical distress and the Officer was able to overcome the foreseeabilty test set out in Sutherland –v- Hatton. The Chief Constable was therefore liable to the Officer for his injuries, there was no reduction for contributory negligence because the court considered that the Officer had done all he needed to do to mitigate his loss by raising his concerns with his superior Officers.

A further potentially significant development occurred following the House of Lords Judgment in 2006 in the case of Majrowski –v- Guy’s and St Thomas NHS Trust.

William Majrowski worked for an NHS Trust as an Audit Co-ordinator and claimed that he had been bullied by his Manager. Mr Majrowski said that he was criticised for his timekeeping and his work, that he was isolated and that his manager was abusive towards him in front of his colleagues because he was gay.

The distinctive aspect of the case was that Mr Majrowski did not relay upon the common law arguments, but on the Protection from Harassment Act 1997.

The Defendant argued that the Protection from Harassment Act was never intended to be used as such a weapon i.e. in relation to civil/reparation cases. Its intention was to provide protection from anti social behaviour.

However the Act was drafted sufficiently widely to be able to cover bullying at work and the House of Lords upheld that there was no reason why the statute should not be applied to the workplace. Section 1 of the Act states that a person must not pursue a course of conduct that amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. There must be harassment on at least two occasions to breach Section 1. Although intended predominantly as a criminal statute, Section 2 of the Act provides for civil claims for damages where the Act has been breached. Harassment is not defined in the Act – it need only amount to “alarming the person or causing the person distress”, and speech alone is sufficient. Also, the harassment does not have to be institutional either. In Marjowski the allegations were made against the claimant’s Line Manager personally. The claimant successfully argued that his employer was vicariously liable for the Line Manager’s breach of the Act.

Although the case involved bullying/harassment, potentially again the lines crossed in relation to such acts and harassment at work due to overwork. Potentially it was anticipated that this Judgment would result in stress claims being based on the Protection from Harassment Act 1997 and that the tests laid down in previous cases, quite possibly with the express intention of restricting the number of stress claims, has been replaced by the strict liability of this statute.

Further developments are awaited in this area, and we will look to provide updates to this article as and when they occur.