RSI-LITIGATING IN THE UK by Graham Ross, solicitor Ross & Co, Liverpool Head of ALeRT (Allied Lawyers Response Team) CONTACT:- 0151 284 8585 / fax 0151 236 6035 e-mail gross@alert.u-net.com web site http://www.alertuk.com INTRODUCTION WHO IS LIABLE? EVIDENCE REQUIRED WHAT TO RESEARCH EXPERTS REQUIRED TIME LIMITS CONSENT TO INJURY/FEAR OF DISMISSAL COSTS AND FINALLY, BEWARE OF... INTRODUCTION So far as the law is concerned, claims for RSI and related conditions are no different to other occupational injury claims. They are pursued under a combination of claims of common law breach of an employer's duty of care (negligence) and breach of particular statutory duties. The common law claim will be the same for all employer defendants, being that if the employer has actual or constructive (ie he ought to have known) knowledge that the working practice/environment presents a risk of injury, then he owes a duty to take whatever steps a reasonably prudent employer would take to remove or reduce that risk and to warn his employees accordingly. Breach of statutory duty will be similar so far as it requires a duty toprovide a safe system of work, but individual statutes and regulations may apply according to the nature of the work done by the Plaintiff. Although there are usually these two aspects of the claim they form one and the same "case". There is a danger for health & safety advisors to simply cover the specific statutory requrements/regulations, eg for the provision of ergonomic equipment/furniture, without covering the common law. The regulations may well say that equipment and employee work and break schedules must be up to the statutory standard by a certain date, yet that does not mean that employers cannot be sued prior to that date under common law (or breach of their general statutory duty to provide a safe system of work) for actual RSI damage suffered by their staff. Since such claims depend on the extent to which the employers have knowledge of the likely risks in the equipment and working arrangements, the problem is that the very existence of the specific regulations, albeit with a forward date for introducing the safer equipment/furniture that may not by then have come round, can, nevertheless, go to prove that they have the necessary knowledge. In other words, it is no use employers saying that specific statutory regulations give them until next year to bring in some safer equipment, if they know an employee is presently being damaged by the existing equipment. It is important to note that not only can you claim for an injury wholly caused by the working practice, but also for the exacerbation of an injury that had itself been caused by other factors not the responsibility of the employer. In this regard, you can only claim for the increased injury that would otherwise not have been caused. This will apply whether the employer knew of your previous injury and ignored the potential special risk an otherwise safe working practice brought to yourself, or, whilst unaware of your previous existing injury, knew he was requiring a risk practice that in general terms was unsafe. As in all personal injury claims, the employee has to be able to prove causation, ie that the injury was caused or exacerbated by the conduct complained of (ie the bad working practice) and that he/she would not have sufferred the injury but for that conduct. WHO IS LIABLE? 1. There are four possible claims that need investigating in each case:- a. Liability of the employer:- i) In allowing a risk of RSI to be run by an employee after the date that the employer had knowledge, actual or constructive, that the working practice presented a risk of injury in general or, in that the employee was, in fact, being injured by his work. ii) In failing to warn the employee. iii) In failing to bring into effect practices that would diminish the risk of RSI after acquiring knowledge, actual or constructive, of how such risk can be minimised. b. Liability of the doctor, specialist or GP, who may have been consulted during the period that the damage began to manifest itself, in failing to recognise the link with the working environment, if made aware of it, resulting in continued suffering and a poorer prognosis, whether by failure to treat adequately and/or failure to warn against continued exposure. c. Liability of the manufacturer:- i) In failing to design the product in such a way as to minimise the risk of injury from repeated use. ii) In failing to warn against continued use over long periods of time. d. Liability of the vendor of the equipment in failing to warn and advise on good practice. Note that claims under b,c and d above are useful to consider in situations in which claims against the employer are weak for lack of full knowledge by them as to the dangers. EVIDENCE REQUIRED 1. A good description of the working practice needs to be set out in writing with a comparison with:- (a) previous practices in the same workplace. (b) varying practices in other areas of the workplace or other workplaces run by the same employer. (c) varying practices in the industry at large. (d) statutory and regulatory requirements. (e) requirements previously set out by employee representatives, eg unions. There needs to be focus on:- i) The frequency of the repetitive movement. ii) The musculo-skeletal movement in the repetitive action. iii) The musculo-skeletal load in the repetitive action. iv) The degree of pressure on the employee to retain or increase a certain rate of movement and, in particular, whether this is dictated by other factors outside his/her control, eg the speed of a conveyor belt. v) Ditto as to pressure from the employer to increase output/speed of output. vi) Length and frequency of breaks from the repetitive movement and to what extent these are under the control of the employee. vii) Length and frequency of rest periods and to what extent these are under the control of the employee. viii) The extent to which risk reducing equipment (eg a wrist rest) is provided but not used by the employee. If not used, why, and the extent to which the employer was aware of the lack of use. 2. A full history of employment. 3. A full relevant medical history with links to the employment history. 4. Details of to what extent the employee continued with the working practice that was thought to cause/exacerbate the injury and the reasons why (eg fear of losing job). 5. Drawing/photographs if possible. If possible, photos should be processed with a date stamp. 6. Names and addresses of the manufacturers of all equipment and details of any relevant warnings given to purchasers of their equipment. 7. Names and addresses of other employees who may have sufferred similar injury. 8. Names and addressese of other employees, present or former, who may be able to confirm evidence of the working practices, actions of the employer etc 9. Names and addresses of witnesses, eg family and friends, who can attest to the extent of injury as it developed. 10. All correspondence between employee(s), their representatives and the employer over relevant issues. 11. Details of the extent to which the injury has lost the employee income and reduced the position of the employee in the job market. 12. Details of the extent to which the employee's life outside of work has been affected, eg loss of ability to pursue hobbies, pastimes, creative pursuits etc. 13. Details of all cost incurred as a result of the injury, eg increased travel costs, purchase of special equipment, cost of medical treatment / physiotherapy etc 14. Occupational Health records from the employer to include all reporting of injury/illness. These will be applied for by the employee's solicitor. 15. Details of all warnings, whether notices, letters, or verbal warnings, given to the employee over the dangers of the working practice. 16. Medical records. These will usually be obtained by the solicitor, but all patients are entitled to copy records under the Access to Health Records Act. WHAT TO RESEARCH (Much of this will be obtained by the solicitor as part of the normal investigation of the case) 1. Constructive and actual knowledge of that section of the medical profession specialising in the relevant damage field (eg rheumatology, orthopaedia etc) as to the link between certain conditions and the relevant working environment or equipment. 2. Ditto as to practices that can be introduced to minimise the effect of damage. 3. Constructive and actual knowledge of the medical profession at large (to embrace GPs). 4. Ditto as to methods of mitigation of damage. 5. Constructive and actual knowledge of employers of the potential of the working practice to cause damage and as to methods to minimise damage 6. Constructive and actual knowledge of those matters by manufacturers of the relevant equipment. 7. Constructive and actual knowledge of those matters by the vendors of the relevant equipment. 8. The progress of the particular type of injury in general terms, with particular reference to the effect of continued repetition of the stress once the injury has begun to manifest itself in the context of the overall prognosis (eg at what point does repetition of the stress lead to the damage becoming irreversible). 9. Warnings actually given by manufacturers and vendors of the relevant equipment. 10. Worldwide litigation. EXPERTS REQUIRED 1. An experienced medical expert to advise in the case on causation of damage. Requirements would be someone who:- (a) specialises not only in the field of injury, but in RSI as a cause of that injury. (b) has had experience not only in providing medico-legal reports to a solicitor but has had to support such reports in court. (c) has not been seen to be too close to the controversial aspects of RSI, eg if he/she has written a major book, they can be criticised in court for not being sufficently impartial. This is not a problem with less controversial injuries, but it as well not to have your expert face such criticism. 2. An experienced medical expert to advise on potential negligence liability of any treating doctor for not warning the employee of the danger of continuing the working practice. Requirements would be someone:- (a) who practices at the same level as the doctor complained of, ie GP if complaining of lack of warning and/or referral by a GP (b) has had experience not only in providing medico-legal reports to a solicitor but has had to support such reports in court. (c) practices out of the area in which the doctor complained of practices. 3. An experienced Health & Safety ergonomics expert to advise on industry working practices/standards, regulations and as to what failings have been found in the working environment alleged to have caused the injury. 4. An expert in the design and packaging (warnings/labelling) of all relevant equipment. TIME LIMITS Court action must commence by the third anniversary of the employee having knowledge of all of the following:- 1. That he/she has sufferred a significant injury. As RSI can gradually develope, this knowledge will not have been gained simply on the first occasion of pain but only when it has become "significant" and, in this context, regular. This is a matter of interpretation but, for example, if the pain is sufficient to require medical attention, then it will be difficult to dispute the knowledge has been acquired. 2. The identity of the proposed Defendant. This is usually the employer, so such knowledge will have been gained at the outset. It matters not that the employee does not know the true and full name, which can happen in large, eg multi-national, organisations, so long as he/she knows the trading or general or commonly used name and that the true name could easily be ascertained. In medical negligence cases, it may be either the GP (which he/she will know at the outset) or the name of the Health Authority/Trust,if the complaint is against a consultant. Once again it matters not that the employee does not know the true and full name of the Health Authority/Trust so long as the general name of the hospital is known, which would be , of course, impossible to dispute. If the claim is against the manufacturer/vendor, then, although the employee may not actually know the name,it would be difficult to establish that he/she could not easily have found out by enquiry and, thus, knowledge will likely be imputed from day one. 3. Those facts on which the claim is to be based. It is not necessary for the employee to know that the Defendant has been negligent or in breach of the law, merely that he/she knows of such acts by which it is claimed damage has been caused. This will mean that he /she must know that the injury may have been caused by the working practice. Thus, simply to know that one is injured to a significant degree, will not start the clock running until you have knowledge that it may have been caused by your work. Please note that the time limit requirement is not satisfied merely by instructing a solicitor within the three years, but by issuing court proceedings. Because of the amount of work that will be required to investigate whether or not there is a case in the first place to justify the issuing of proceedings, solicitors should be instructed as early as possible. Proceedings can be issued at the last minute "protectively" to avoid being time barred, but this is not recommended as you then become liable to various strict court time limits, such as for the service of the court papers and a medical report and, if you have to withdraw at a later stage becaue you have no case, you could become liable to the Defendant's costs. IT FOLLOWS FROM THE ABOVE, AND PARTICULARLY BECAUSE OF THE GRADUAL WORSENING OF INJURY, THAT ANYONE WHO THINKS THEY MAY HAVE SUFFERED RSI SHOULD CONSULT WITH A SOLICITOR AS SOON AS POSSIBLE, IF ONLY FOR ADVICE. What if you are over the three year limit? You should still instruct a solicitor to look into the matter. Firstly, there may be an argument to support a claim that time has not really expired. More importantly, the court has the power to exercise discretion to allow a case to proceed notwithstanding that the time limit has in fact expired. In exercising discretion, the court will take into account:- i) whether the evidence to be put forward by the Defence is significantly dependent on oral evidence. The main reason why time limits are imposed is to not prejudice Defendants who are reliant on the memory of witnesses, whch are likely to fade as time passes, as opposed to documentary evidence. ii) whether the employee, whilst being late, did take action speedily as soon as he/she became aware of the three elements of knowledge as set out above. iii) whether the Defendant witheld valuable information from the employee that significantly adds to the strength of the case or is a important element in its investigation. iv) whether or not the Defendant indicated in correspondence that it would not be necessary to issue court proceedings in order to obtain compensation from them, or indicated that they would not object to a delay beyond any three year time period up to an agreed extension thereof, whether specific or general. In assesssing discretion, little regard will be given to any delay that was the fault of the solicitor rather than of the client. The courts argue that, if the solicitor has been at fault, the client has recourse in suing the solicitor for negligence. CONSENT TO INJURY/FEAR OF DISMISSAL A major problem with all occupational injury/illness claims is the fear employees have that, if they make a claim, they will run the risk of losing their employment. This is particularly a concern with RSI since, by the very nature of the injury, even a change in working practice may no longer be "safe" for that employee so that an employer could argue that, once he has been made aware of an injury, he might be more at fault for allowing the employee to continue in work. As a result , many employees "soldier on" fearful of prejudicing their job. This creates a legal problem known as "volenti non fit injuria" which means you cannot sue for an injury to which you consented. If you know work is making you ill and you decide to carry on and say nothing to the employer, even if he ought to have known of the risk and be generally liable in law, he has a potential defence. This is by no means an absolute defence and courts would likely be more sympathetic to an employee in such a situation, possibly holding that the consent to further injury was not given fully and freely,but more under the duress presented by the fear of losing the job. However, the more "responsible" the employer and the less the degree of knowledge and culpability of the employer, the harder it might be to challenge a volenti defence. If the employer is a large corporation with a very good record of employee care who would be able to provide suitable alternative employment at no loss of income then they would be treated more sympathetically by the court than a small firm with bad administrative and employment practices. Once again the message is to take confidential legal advice as soon as possible whether or not you have decided to make a claim. COSTS Legal Aid is available subject to means. Most firms of solicitors can make an application on your behalf. If a trade union pays legal fees then Legal Aid will usually not be granted. Many firms these days will come to a "no win/no fee" arrangement. This means that there is no charge if you lose the case, but the normal charge based on an hourly rate is increased by an agreed percentage (the "success fee") if you win. That increase is assessed in accordance with the risk of losing the case, so that the lower the chances the higher the "success fee".The increase cannot be more than 100% so that the maximum charge is twice the normal fee. Although, on a success, it is usual that the Defendant pays the Plaintiff's costs, these will only be the normal costs and will not include the "success fee", which, therefore, will come out of the compensation. However, most solicitors comply with Law Society guidelines and impose a "success fee" cost ceiling of 25% of the amount of compensation recovered, thus guaranteeing clients at least 75% of the costs. It is usual that, even in a "no win no fee" arrangement the client will still have to pay the expert's fees and other disbursements. It is not considered appropriate for the expert witnesses to work on a contingency since the court might take the view such a vested interest in the outcome discredits the strength of the evidence. Many solicitors will not agree ot take on a case under "no win no fee" without first having an initial investigation carried out to assess the strength of the case. This work will be charged usually by an agreed arrangement and will include obtaining medical records and an initial medical opinion on the cause and extent of the injury. This is often an advisable course of action since it will ensure a more accurate assessment of the success fee than could be made without any investigation having been carried out. AND FINALLY, BEWARE OF... 1. There are special difficulties in establishing the extent of injury in RSI cases resulting from the fact that diagnosis of the injury is, by and large, reliant on a subjective element. A broken leg can be proved objectively by visualisation on X-Ray. RSI depends, to a degree, on the expression of pain and discomfort by the employee. However, it is not advisable to try to "play up" injury as that runs the risk of being considered unsympathetically by the experts and by the court, resulting in a claim with some merit being thrown out as unreliable. There have , however, been recent developments that suggest that some improved form of Magnetic Resonance Imaging may be better able to identify the extent of damage otherwise not easy to diagnose. We are investigating this matter. 2. You will be required to be examined by a medical expert acting for the Defendants. Although an independent doctor, this expert is bound to feel it a duty to look as critically at your claim as possible. That is what he is being paid for.Traps wil be set in the interview to try to establish any playing up of the injury. Any lack of honesty wil rebound on the employee. However, there should be no timidity in stating firmly the extent of the pain and suffering and to not be put off by any psychological pressure on you to minimise the suffering in order to avoid being seen as a "weak" person. You should also not be drawn into discussions of the history of events in the workplace as opposed to the history of your health. 3. Insurance companies are increasingly using secret video recordings to try and prove the falseness of claims. Employees should not, for example, claim they can no longer play in goal in a Sunday football team if this is not true since they may check out the team's games and a video could destroy your case. Without suggesting employees with claims should be constantly on their guard for video cameras, which could make a visit to Alton Towers a somewhat neurotic experience, nevertheless be aware and, primarily, be honest. I hope this paper is of help. By its nature it can only be of general application and you should not take any decision on any claim you have by what is written here, but must take direct personal advice from a solicitor. Graham Ross 13-05-97