If an employee contracts a disease or a condition (an occupational illness) which has been caused by the environment in which they worked, they may be able to bring a personal injury claim. Like in any other personal injury claims you need to be able to show that the defendant (in this instance your employer) owed you a duty of care, the defendant breached that duty and that the breach has then caused loss which is reasonably foreseeable.
Duty of Care
Within the work place the employer is under a duty to take reasonable care of his employees’ health and safety. This means in practice that the employer needs to provide health checks if dealing with hazardous work, supplying safety equipment (gloves, masks, ear defenders etc) to protect employees from injury and medical equipment to mitigate any potential injuries. The care that has to be provided is reasonable and not absolute. There are three particular areas which should be considered in particular when looking at the next area which is a breach of duty.
Breach of Duty
As mentioned above there are three main areas which should be considered when looking if the duty has been breached, they are competent staff, adequate plant and a safe system of work. The two most relevant points to consider when looking at occupational illness is that of adequate plant and safe system of working.
This means anything used in the course of work. From the large machinery to basic equipment. The employer has to take reasonable steps to provide adequate equipment to do the job and then maintain it. If you suffer an occupational illness because the equipment is inadequate then the employer may be liable.
If you work with asbestos and the employer fails to provide the correct ventilation equipment and you suffer from mesothelioma because of it they will potentially be liable for the illness caused.
If they do provide adequate equipment they do have to ensure that it is kept in good working order. The court will consider current practice when looking at what is considered adequate maintenance. They will consider depending on the equipment inspection and service records, reports of defects, replacing worn out parts, steps taken to repair equipment and cleaning rotas as well as anything else which applies to the individual case.
The duty with regard to adequate plant also applies to provision of safety and protective equipment. So as in the above example if they don’t supply you with the correct masks to protect you from asbestos they may have breached their duty.
Safe System of Working:
This is a very wide duty and again the Courts will consider the facts of each case. They cover things such as the layout of the plant, the order work is done in, the method that it is done, provision of instructions and provision of proper warnings and notices. So continuing with our asbestos example if the employer was to fail to provide proper warnings about the risks of working with asbestos or fails to supply proper instructions with how to deal with it then it’s possible that the employer may be liable.
How reasonable does an employer have to be?
In avoiding liability for occupation illness you must consider what steps would be considered reasonable. The first thing that should be noted is that it is not an absolute duty of care but in general a high standard is required. The Court will consider certain factors when considering whether the steps the employer took was reasonable. This includes the cost and effort of adopting precautions to overcome the risk and the seriousness of the injury risked, current trade practice, knowledge of the risk and existing disability of the employee. Obviously the greater the risk the greater the level for what is considered reasonable. In the case of asbestos and mesothelioma then the employer is likely to be found to have a high burden when it comes to protecting his employees from the risks.
Remoteness of Damage and Causation
The final factor that has to be considered to establish your employer is liable for the damage is that the damage or illness that you are suffering from was foreseeable. You can recover for damage which is reasonably foreseeable or damage can be shown to flow directly as a consequence of the breach.
Causation is normally fairly clear cut in standard work accident claims. However problems can emerge when considering occupational illnesses. Especially if you have worked for two or more companies who may have exposed you to the risk of the illness you are now suffering from.
Fairchild v Glenhaven Funeral Services
Fortunately a 2002 House of Lords case has clarified the matter somewhat. They held that if there has been employment with more than one employer and:
(a) both employers had a duty to take reasonable care to prevent the Claimant from inhaling asbestos dust, and
(b) both were in breach of that duty, and
(c) the claimant did subsequently suffer from mesothelioma
then the claimant was able to recover from both employers. All the Claimant had to prove was that a defendant had materially increased the risk of injury/illness
So even if you have worked for several employers and they have breached their duties then you may be able to claim for the suffering you have experienced.
On top of a common law claim for personal injury there are a whole raft of statutes which are in place to protect employees from the risk of harm. There are too many to list here but if you have suffered an illness due to your employers negligence we can consider the statute in more detail then.
What other occupational illnesses are there?
We have already mentioned mesothelioma which is caught from asbestos strands however there are obviously other occupational illnesses which you could be suffering from due to your employer’s breach of duty. Some of these are listed below:
- Occupational Asthma
- Asbestos-related conditions
- Repetitive strain injury
- Occupational cancers
- Vibration white finger
- Skin conditions
- Occupational Deafness
It is often very difficult to establish that the working environment is the cause, or a major cause, of the industrial illness. In order to establish the cause of the illness, we employ a team of technical and medical experts well versed in the chemical causes of industrial disease.
If you feel you have suffered from an occupational illness because of the behaviour of your employer then please do not hesitate to contact us on [phonenumber]. One of our professional team will be able to discuss the details of your case with you and advise you of the feasibility of taking your case on on a no win no fee basis.