The Claim for Personal Injuries - Essay Example

Re: JOHN GRANT ADVICE I am asked to advice Claimant Mr. John Grant in the claim for personal injuries made against factory owners, McFaralane Contracts Ltd, and of the employers Rattle Engineering Ltd. In view of potential limitation problems, I am asked to advice within the next two weeks. Likewise, I am tasked to advice Mr. Grant as to whether he may seek to have the limitation period extended in view of the dilatory conduct of his previous solicitors. I am also asked to advice specifically on the following matters: a. Specific questions that may be put forth to Industrial Safety Engineer, Bernard Copeland, to render his expert opinion on where responsibility attaches; b. The necessity of including Mr. Ashford’s comments to the effect that he was probably rushing and a bit careless at times, despite client’s assurances that such a viewpoint is completely unfounded and unwarranted. Summary of Facts 2. Claimant Mr. Grant is employed as a General Labourer by Rattle Engineering Ltd. to carry out repairs to general machinery. Most of the work is done at the factory premises of other companies. In August of 2003, said employer was hired by McFarlane Contracts Ltd to carry out work at its factory premises at Stone Road, Sizewall Industrial Estate, Liverport. Rattle was engaged to perform repair work on machineries which made steel sleepers. Claimant was tasked to be a part of a group of four to perform the project, under the supervision of Mr. Joseph Ashford, (JA) the foreman who had a mobile office at the site. 3. When Claimant arrived at the factory, he saw that lorries were delivering the equipment and parts that Rattle needed. JA told the men to park the lorries at the parking depot while he asked Jim Smith (JS), the factory manager employed by McFarlane Contracts to show where the materials were to be unloaded. JS instructed that the materials be unloaded at the forecourt. The next job was to move the materials from the forecourt to the back of the premises through a conveyor belt. Claimant’s job was to carry the steel nuggets to the conveyor belt. Another person was tasked to take the nuggets out of the conveyor belt upon reaching the back of the premises. 4. Around 12:20 pm. Claimant was still doing the job assigned to him. As he bent down to lift another steel nugget, he lost his balance and his foot slipped on the oil. His legs went from under him and he landed on the ground, on his bottom. His right forearm was crushed between the concrete forecourt and the nugget, with the weight of the latter bending his hand backwards. The right side of his head hit the concrete surface. He was taken to St. Mark’s Hospital Ottershaw thereafter and was diagnosed as having a head injury, a scaphoid fracture of the right wrist and a soft tissue injury to his back, which accelerated and aggravated a previously asymptomatic pre-existing condition. He was dismissed from employment eight weeks after the incident. Summary of Advice 5. It is my opinion based on the available evidence that Claimant Mr. John Grant is in a good position to prosecute his claim. McFarlane Contracts Ltd. may be held liable under the Workplace Regulations Act of 1998 for failing to provide precautionary measures to ensure that workers are not to injure themselves in the course of their work. This includes making sure that the floor is slip-resistant. However, since the evidence on where the oil on the floor came on is controverted and has yet to be ascertained, there must be an expert assessment on that to determine the full scope of McFarlane’s liability. That said, McFarlane should still have provided devices for workers’ safety, convenience and comfort, such as a portable hoist. Moreover, McFarlane can also be made liable under the Occupiers’ Liability Act of 1957. On the other hand, Rattle cannot absolve itself from liability by the simple expedient of claiming that the conditions of the workplace is entirely under the control of McFarlane. As the employer of Claimant, it has a duty of care towards him and one of this duties is to provide a “safe system of work.” Moreover, Rattle is liable for dismissing Claimant because he incurred an injury while in the course of performing work-related duties. This amounts to illegal dismissal and is a violation of labor law. Defendant Knowledge 6. Based on the evidence, it is clear that McFarlane, through its foreman JA, knew that there was an oil leak, and small patches – “one or two” were on the floor during the time of the incident. It is likewise clear that McFarlane knew of the importance of a portable handheld hoist, for the safety of its workers. 7. On the part of Rattle, it was apprised of the nature of work of Claimant and the tasks for which he was employed. It is, therefore, incumbent on the company to provide adequate safety systems and to educate their employees on proper safety precautions. As the company is engaged in this business, it is presumed to know the law governing this, and the law pursuant to Manual Handling Operations 1992 is that when an employee has to lift from ground level, the safe lifting weight is between 5 kg. to 10 kg. Liability of McFarlane 8. McFarlane is liable under the Workplace Regulations Act of 1992, for failing to provide precautionary measures to ensure that workers are not to injure themselves in the course of their work. McFarlane cannot argue that it is not the employer of Claimant and Rattle should be made liable because the 1992 Regulations apply not only to employers but also to “persons in control”, and a Claimant may proceed against either or both. Regulation 5 (1) requires the achievement of an end result, ie the workplace and its equipment maintained in an efficient state. If there is an oil leakage in the area, this constitutes a clear danger to the workers and is most assuredly a violation of Regulation 5(1). Especially considering that the job description involved the lifting of heavy steel nuggets, the oil spill is an accident waiting to happen and it is not difficult to imagine the injury likely to be caused to a hapless worker because of it. The declaration of the foreman that “there may be one or two patches left” reveals that safety standards are treated in a cavalier manner at the company and the company does not go out of its way to provide a safe environment for its workers. 9. The oil spill is also applicable to Regulation 9, which deals with Cleanliness and Waste Materials. The scrap metal in the area may also be said to be a violation of said Regulation. While it may be true that the requirement for workplaces etc. to be kept "sufficiently clean" allows flexibility in matching compliance measures to the risk and to the industry standard, what this can only mean is that if one is operating an area where men are expected to lift heavy equipment and items, the floor must be kept impeccably clean, as this is not only an issue of hygiene, but also an issue of safety. 10. McFarlane is also liable under the Manual Handling Operations Regulation of 1992, the pertinent provisions of which reads as follows: 4.(1) Each employer shall – (a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or (b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured – (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of schedule 1 to these regulations and considering the questions which are specified in the corresponding entry in column 2 of that schedule, ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable,…" 11. It is clear that the management did not take appropriate steps to reduce the risk of injury to those employees. If they had taken the appropriate steps, then they would have made sure that the floor was oil-free and that all the necessary precautions were in place. There would also be no scrap materials on the floor. The fact that the engineer saw scrap materials on the floor is telling of how management perceives safety standards prescribed by law. Their bare statement that no such scrap metals were on the floor during the time of the incident that resulted in Claimant’s injury is a self-serving assertion and has little evidentiary value. 12. Lastly, McFarlane is liable under the Occupiers’ Liability Act. The Occupiers’ Liability Act of 1957, which came into force on January 1, 1958, has created significant changes and has made important inroads in the area of law that governs liability incurred for injuries sustained in premises considered dangerous or perilous. It provides a set of specific statutory guidelines to supplant common law rules to regulate the liability of an occupier towards his invitees, licensees and contractual visitors. The most significant change in the act is that it imposes on an occupier of the premises a “common duty of care” to all his lawful visitors, except insofar as he is free to and does extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement or otherwise.” It also applies to a person who enters the premises in order to fulfill a contractual right. 13. It is clear in this case that Claimant was in the premises of McFarlane to fulfill a contractual right, and this is the contractual right of employment. Hence, it cannot be gainsaid that the Occupiers’ Liability Act of 1957 applies. According to the 1957 Act, the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there (s2(2)). 14. An important case of recent vintage that interpreted this provision is the decision of the House of Lords in Tomlinson v Congleton Borough Council [2003] All ER 554. The case held “that it would be extremely rare for an occupier of land to be under a duty to prevent people form taking risks that were inherent in the activities that they freely chose to undertake. (It) emphasised that the duty to protect against obvious risks (or self inflicted harm) only existed in cases in which there was no genuine or informed choice, such as in the case of employees, or those with some lack of capacity such as children who would not recognise the danger. This case, while it ruled against the claimant, is relevant for our purposes because it emphasizes that the duty to protect against obvious risks exists in the case of employees. Liability of Rattle 15. Even though Rattle was not at the site of the incident, as an employer of Claimant, it can be made liable. As discussed earlier, liability can attach either or both to the employer or the “person in control.” The applicable case is Wilson & Clyde Coal Co Ltd v English [1978] AC 57, which is the seminal case that illustrates the three-fold duty of the employer. An employer is mandated to provide: a. a safe place of work b. a safe system of work c. effective supervision d. proper plant and materials e. competent staff. 16. It is clear that Rattles did not provide effective supervision to its employees and this resulted in the accident of Claimant. In the case of O’Neill v. DSG Retail Ltd. EWCA Civ 1139, “the employer must ask himself whether the tasks involved, for example, holding or manipulating loads at distance from trunk or unsatisfactory bodily movement or posture, especially twisting the trunk, stooping, reaching upwards, or excessive movement of loads, especially, excessive lifting or lowering distances, or excessive carrying distances.” The company Rattle in this case, performed no such self-inquiry, and was in fact “not big on safety.” 17. Rattle also did not provide a safe system of work pursuant to the Manual Handling Operations Regulation of 1992. It should have provided a manual of safe practices and should have educated its workforce, given that the area of work the company is engaged in is risky and hazardous. The company should have taken the necessary precautionary measures. Not having done so, it may be held liable. 18. Lastly, Rattle can be held liable for Unfair Dismissal, because it terminated Claimant because of his confinement brought about by the injury. It is an uncontroverted fact that the injury had resulted from work-related actions and therefore, it was certainly not fair that he would lose his job on top of the physical injury he has been made to suffer. CAUSATION 19. While Claimant may be able to establish a causation between the breach of duty of the defendants and his injury. Unfortunately such causation is not indubitable and Claimant still has to present further evidence. 20. One issue that Claimant has to reckon with is the issue of contributory negligence. This may be theoretically raised by the Complainant. This factor is based on the legal provision which states that: "…Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, acclaim in respect of that damage shall not be defeated if the fault of the person suffering the damage, but damages in respect of the damages recoverable thereof shall be reduced to such an extent the court thinks fit just and equitable having regard to the claimants share in the responsibility for the damage…" (Law Reform [Contributory Negligence) Act 1945 s1) Fault is defined as "…negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this act, give rise to the defence of contributory negligence…" (Ibid, s4). 21. This would be relevant on the question of “twisting when lifting the nuggets.” Claimant has to resolve this in order to refute the possible defense of contributory negligence. 22. Another important issue is Claimant’s previously asymptomatic pre-existing condition. This may be considered an intervening cause and be used as a defense by the Defendants. Claimant, however, may argue that the condition would not have been aggravated had it not been for defendant’s breach of duty. That breach of duty is still the proximate cause. Loss of Chance 23. Considering that this is Claimant’s job and this is how he earns his keep, there is clearly a loss of chance involved. The injuries he has sustained will hamper his performance of his livelihood and will severely impact on his earning capacity. It is equitable to take this into consideration. Extension of Limitation Period 24. If the dilatory tactics of previous counsel were of such a grave nature that they resulted in a violation of claimant’s due process, then the limitation period must indeed be extended. However, there is no indication in the facts of hand of the nature of the dilatory tactics of previous counsel. 25. It must be kept in mind that the raison d’etre behind the Statute of Limitations is to encourage Claimant’s to enforce their claims in a speedy and expedient manner so that the evidence is still readily available and there is a reasonable proximity of time to the date of the incident. The defendants, like claimant, also has a right to due process, and the Statute of Limitations serves to protect their interests as well, in that they have a right not to vexed forever or be vulnerable to suit for an unreasonable period of time. QUESTIONS TO ASK EXPERT WITNESS 26. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether or not the evidence indicates a deviation. 27. In this case, the following questions may be posed to the engineer: a. The weight of the steel nuggets that Claimant was asked to carry (this is relevant on the question of liability under the Manual Handling Operations Regulation of 1992. The weight must only be 5-10kg.) b. The condition of the premises vis a vis industry standards. c. The permissible work load per employee vis a vis industry standards. CONCLUSION 28. The conclusion that can be drawn from the narration of facts is this: at face value, the claimant has a cause of action. However, this cause of action is inconclusive and more evidence has to be presented. What is indubitable is the liability of Rattle for unfair dismissal. The fact of Claimant’s dismissal remains uncontroverted. Read More