European Physical Agents (Noise) Directive

These Regulations are about protecting workers from exposure to noise, which is still a problem in many industries. It was estimated that these Regulations will extend protection to around one million new workers, in addition to the same number protected under current law.

The main changes from the existing Regulations are the reduction by 5 decibals (dB) of the exposure levels at which action has to be taken. The new exposure levels will be 80dB and 85dB with a limit of 87dB on personal noise exposure. This will mean that some employers who already take action to control noise may have to do more, according to the HSE (Health & Safety Commission). For most employers the new Regulations came into force in February 2006.

The HSE says that the limitation on personal noise exposure now allows hearing protection to be taken into account. In addition, where noise exposure varies from day to day, it can be averaged over a week rather than over 8 hours. And the original requirement for health surveillance at 80dB has been qualified so that it only applies where there is a risk to health.

No- Win No Fee Frank is Champ of the Underdog

Who do you prefer in the morning? The energetic ranting of Radio 1’s Chris Moyles or the more sedate Irish lilt of Radio 2’s Terry Wogan?

The dilemma can provoke heated debate, particularly across the generation divide. Whatever your preference, not many people would be willing to come to blows over it. Yet that’s exactly what happened in a council building in Aberdeen, when two employees literally butted heads over the issue in 2004.

When the dust settled both employees were sacked but one eventually got his job back appeal. Considering the returning employee (who incidentally, favoured Wogan) was the perpetrator of the head butt, it says a lot for the man who successfully fought his corner, Aberdeen solicitor Frank Lefevre. Yet its just one of the many seemingly lost causes Frank has taken on and won.

High-profile

Apart from a brief stint as an advertising copywriter, he has been a solicitor for nearly 50 years, specialising in court work. In those years he’s fought a number of high profile cases including acting for survivors and families of victims of the Piper Alpha and Lockerbie disaster and those affected by the Braer oil spill off Shetland. But more than the landmark cases the 72-year-old won, he’ll perhaps be best remembered for what he’s done for the legal profession. In 1988 he became the first lawyer in Britain to take on cases on a “no-win, no-fee” basis when he set up Aberdeen-based Quantum Claims, which now has five offices across Scotland. It was a move that sent shockwaves through the stuffy world of the legal profession. “When I started doing them it was big news, almost a revolutionary idea,” says Frank. “I was involved in a civil case here that meant having to work with an American legal firm. That company took cases on no-win, no-fee and I thought it might just work here.

“I was frustrated with the length of time it took things to come to fruition in the legal system here. I hoped this might inject a bit of urgency but it was a big risk.” A chance meeting at a wedding, however, ensured the fledgling venture had all the publicity it needed. “I was introduced to the editor of The Times and my business was mentioned to him. Within days a story about it was on the front page.” In no-win, no-fee cases a fee is only payable if there’s a favourable result. If the client wins or settles, the solicitor’s fees are usually based on a percentage of the award. Frank goes on, “The public’s initial reaction was great and I was inundated with calls from people eager to pursue civil cases, but a lot of them were not cases that could be taken forward.

“In the first few months I’d have people who were 30 telling me that when they were three their granny dropped them on their head so could I sue her for them. “Of course I couldn’t but I’d always write them a long letter back telling them exactly why I couldn’t take on the case.

“It would take me an age but I always thought that if they ever did have a legitimate reason to contact a solicitor they’d automatically think of me.”

Suspicion

The legal profession viewed Frank’s venture with suspicion and he was soon embroiled in a feud with the Law Society of Scotland. They issued a simple ultimatum – drop no-win, no-fee or they’d revoke his right to practice law. When he refused to budge the Law Society took him to court and the case rumbled on for two years – with Frank emerging victorious. But Quantum Claims’ business model did open the floodgates for many opportunists. As many companies try to settle cases before they reach court with potentially large settlements, many soon saw neon pound signs. “There were plenty of opportunistic companies that tried to cash in and many of them have since gone out of business,” says Frank. “I think the fact we were the first company doing it and are still going speaks volume of our professionalism.

“I’m often called things like an ambulance-chaser but that’s par for the course. My main priority was always winning the respect of the public. After that the respect of my peers will follow.

“It’s amazing how perceptions change over the years. Long after the dust settled on my battle with the Law Society I was appointed to their council.”

Quantum Claims has handled around 50 000 enquiries and made settlement of around £50 million, including 16 different claims for the Piper Alpha disaster netting claimants almost £2 million. Frank’s never been busier and any talk of retirement is summarily dismissed.

In fact, he’s now branching out into songwriting and charity work. Frank has written a dozen songs he hopes famous Scots will record for a CD to raise cash for his soon-to-be set up kids charity Quines And Loons – Kids Wherever.
“We’re at an early stage but we hope to have it finished soon with a few well-known Scots and some English artistes making appearances too.”

Quines And Loons is planned as an umbrella charity, with each performer picking a children’s charity to share a slice of the profits. Frank’s own children play a big part in the law business. Three of his and wife Hazel’s children work with Quantum Claims. So Paul is a director and both daughters, Tracy and Julie, work there. Julie’s partner, John, is also a director. And last, but by no means least, is Managing Director, George Clark, who Frank says is very much a part of this family business. The Lefevres also have three grandchildren. Professionally, Frank was reinvigorated by a House of Lords ruling last December in the case of an offshore scaffolder who, getting out of his bunk bed, slipped on the ladder and fell, badly injuring his back. H was awarded a “substantial six-figure sum” yet at time the case seemed a lost cause. A civil court and the Court of Session had rejected the claim so it headed to the highest court in the land, the House of Lords. “It’s probably the biggest case I’ve ever won,” Frank proudly admits. “I’ve been to the Lords three times before and lost every time.”

Foolproof

“We’d already paid more than £100,000 in legal costs. If we’d lost in the Lords we’d have been looking at a deficit of around £300,000.” Given the Quantum Claims is saddled with the costs if they lose, you’d think Frank would have some secret, foolproof selection process for picking cases. But you would be wrong. “Some companies only take on cases after they calculate exactly what percentage chance they have of winning but that’s not me.”

“It’s more a gut feeling. If you have a sporting chance I’ll take the case.”
And with a proven heavyweight hitter like Frank in your corner a sporting chance may be all you need.

Personal Injuries or Death — Measure of Damages

D, aged 23 at the time of the accident on 27 May 1997, sought damages for serious multiple injuries sustained when his motorcycle collided with an articulated lorry driven by W which was straddling both sides of a carriageway as W was performing a right turn manoeuvre into a minor side road. W blamed D for the accident, maintaining that the road ahead was clear when he began to turn right and that D was driving at a speed at which he could not stop safely within his range of vision. D's motorcycle was a 600 cc fitted with a "performance" exhaust which made it more noisy than normal. D had no recollection of events on the day of the accident, but said that his normal speed on the road was 60 mph.

Decision: granting decree, that D had proved W had performed his right hand turn manoeuvre when it was not clear or safe for him to do so. D was not a reliable source of evidence as to how the accident occurred, but the evidence of F, who, at the time of the accident, was standing at her front gate which directly faced the road, chatting to C, that W drove his lorry across the path of D’s oncoming motorcycle was unshakable, and the fact she did not think the speed of the motorcycle was excessive was not challenged in cross examination. W had failed to prove excessive speed on D's part and while he may have exceeded 60 mph when overtaking the cars on the straight stretch of road before the gradual left hand bend leading to the locus of the accident, W had failed to prove such speed was excessive or in any way inappropriate. Further, C's assessment of D's speed was based largely on the noise of the motorcycle which an unreliable indicator was given the performance exhaust system. In any event, W had further failed to prove a causal connection between D's speed and either the occurrence of the collision or the severity of his injuries. Agreed damages of inter alia £80,000 for solatium; £80,000 for past wage loss (both awards with interest to the date of decree); £400,000 for future wage loss; £35,000 for pension loss; and £90,000 for past and future services, with interest to me date of decree where relevant, were awarded.

Employers' liability – and their duty to keep floors and passages free

After slipping on coolant fluid, M sought damages of £4,500 from his employer L, a bus company, in respect of a minor hand and wrist injury sustained at work. M, a new employee, who was an experienced mechanic bul had not previously worked with buses, slipped and fell on coolant fluid which had been spilled on a board laid across a pit. M submitted that (1) the accident occurred when he was working alone and unsupervised on 14 April 2002; (2) the coolant was spilled by the previous fitter, who had left insufficient drainage receptacles to catch the fluid when he disconnected a hose from a bus s coolant system; (3) L had breached regs 12(3), 5(1) and 13(1) of ihe 1992 Regulations. L submitted that (1) the accident had occurred earlier than M claimed: M's GP had recorded it together with another accident but had entered only 11 April in his records; (2) the coolant was spilled by M,who failed to use drainage receptacles to catch it; (3) L had done all that could be reasonably expected, by providing receptacles, absorbent granules and cleaning equipment for the inevitable spillages, entrusting the work to an apparently experienced mechanic and having a system whereby at weekends, fillers cleaned up spillages themselves; (4) given M's sole fault, L could not be found liable in damages; and (5) M's contributory negligence should he addressed ai a high degree, possibly 100 percent.

Decision: Granting decree in M’s favour for the sum of £1,125 that (1) the accident occurred on 14 April 2002. L had founded solely on the appearance of the GP's records, but the GP was not led as a witness at the proof and the only relevant averment in the joint minute was that the records were what they bore to be. Accordingly, the records themselves were not admissible evidence of the accuracy of their contents where the joint minute was silent on the matter, Lenaghan v Ayrshire and Arran Health Board, 1994 SLT 165, followed. (2) On the balance of probabilities, M had spilled the coolant and at the material time there was no receptacle in place lo catches it as it emerged after the disconnection of the hose. (3) A breach of reg 12(3) had arisen: L's arrangements for such work were less than satisfactory and they had failed to convince the court that the offending spillage and the resulting accident could not reasonably practicably have been avoided; and subject to contributory negligence, L were liable in damages lo M for the accident which he sustained.

Observed, that had it been necessary to consider regs 5(1) and 13(1) neither would have been held to have been breached. (4) In the whole circumstances M had to bear the major share of responsibility for what had happened and contributory negligence should be, assessed at 75 per cent.

Employers' liability - Manual handling operations

A process worker - H, a process worker (aged 47 at proof), raised an action of damages against G, her employer, for personal injuries, namely an aggravation of carpal tunnel syndrome in her left wrist, which she claimed was caused by the trussing of chicken carcasses. The action proceeded lo proof, at which it was established that this process consisted of lifting the carcass from a hook, placing it on a workbench, tying the wings and legs with trussing siring, and placing the carcass onto a conveyor belt. H developed carpal tunnel syndrome in her right hand in 1994 and visited her doctor before March 2001 when she noticed similar symptoms in her left hand. H had an operation on her left hand in March 2001 and was off work for around 16 weeks, during which lime she required help from her family in carrying out personal and household tasks for around seven weeks. H argued that the entire operation of trussing was a single manual handling operation as it involved one relatively short movement, thus invoking the 1992 Regulations. G argued that the process in which H was involved was not a manual handling operation, and that in any event she had failed to prove that the operation had caused an exacerbation of her symptoms.

Decision: Dismissing the action, that (1) on the evidence heard, there was a sufficient causal link between H's work on the trussing line and the exacerbation of her symptoms. (2) When M’s services claim was a small part, his injuries were set forth as were the various tasks which he could not now do, three women were identified as his helpers at various times and a jury would be able to apportion any award among them.

Limitation of Actions

This was a court action raised after expiry of limitation period -Court power to override time limit - [Prescription and Limitation (Scotland) Act 1973 (c 52), s 19A] – Tamburrini (T), a serving soldier between June 1995 and December 2003, raised an action of damages against A, the Advocate General for Scotland as representing the Ministry of Defence, in respect of (a) an injury sustained to his hand and (b) hearing loss allegedly from his exposure to excessive noise levels as a result of live firing exercises. Ts action in respect of his hand injury was proceeding to proof in January 2007 and his action in respect of hearing loss came to a preliminary proof on the question of time bar. It was agreed that the triennium period in respect of the deafness action expired on 18 October 2005 in terms of s 17 of the 1973 Act, and T moved the court to exercise its discretion in terms of s 19A. A submitted that they would suffer prejudice where: they would lose the statutory right to Ts claim being time barred; while there would still require to be a proof between the parties in respect of Ts hand injury, the inclusion of the deafness action would render it both more complex and expensive; the deafness action was based on the failure to have a safe system of hearing protection, monitoring and assessment of risk and while preliminary work had been done, further investigation would be required; and in any event, T had an alternative remedy in that he had a reasonable prospect of success in an action against his solicitors, who had failed to return the summons for calling with the result that the instance fell.

Decision: Granting the motion, that the court's discretion should be exercised under s 19 A and T should be allowed to bring the action notwithstanding that it was time barred under s 17 given that there was to be, in early course, a diet of proof between the parties on the hand injury action and there was a likelihood that some evidence in relation to the issue of deafness would be included in that proof, along with the considerations that this could not be said to be a stale case, the Ministry of Defence were well aware of the allegations and had prepared defences, and there was no significant practical prejudice to A, all of which tended to tip the balance in favour of exercising discretion in Ts favour.

Quantum Claims were subsequently able to settle the case on behalf of the client, by means on negotiation.