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Accidents at Work: the Safety System (2)

The National Industrial Safety Organisation (NISO)

NISO was founded in 1963. It is a voluntary body with membership consisting principally of private firms, trade unions and insurance companies. It is in receipt of an annual Government grant from the Department of Jobs, Enterprise & Innovation and has offices at A11 Calmount Park, Ballymount, Dublin 12.

The organisation runs courses and seminars on safety and health at work and has a library of booklets, leaflets and posters. These are supplied either free or for a small fee. It also has a catalogue of films and videos available for hire. Its website is at http://www.niso.ie/

Beaumont Poisons Information Centre

Because Toxicology   (the study of the effects of poisons on biological systems) is a specialised subject, the Dept. of Health has centralised services on this topic in the Poisons Information Centre in Beaumont Hospital in Dublin. The Centre answers written or telephone enquiries from other health workers or agencies or from members of the public. It does not provide a diagnostic or inspection service. The records of the Centre are not of great value as a source of information on the incidence of toxic events in Ireland. It is not a clearing house on such matters. The centre will become aware of an incident only in the event, usually, that a general practitioner or a hospital will seek advice on treatment where poisoning has been diagnosed. Its website is at http://www.poisons.ie/about.asp

 

Accidents at Work: the Safety System (1)

The Health and Safety Authority

The Health and Safety Authority is a recent newcomer to Ireland’s governance. It was set up in 1989 under the Safety, Health and Welfare at Work Act 1989.

Its predecessor was the Industrial Inspectorate section of the Department of Labour. The Inspectorate had a relatively narrow remit under the Safety in Industry Acts 1955-1980 and the Mines and Quarries Act 1965. It would have been inadequate for the work required to be done under the Safety, Health and Welfare at Work Act 1989, hence the establishment of the Authority into which the Inspectorate was subsumed.

The duties of the Authority are the administration of the Safety in Industry Acts 1955-1980 and the Mines and Quarries Act 1965, the provisions of the Safety, Health and Welfare at Work Acts 1989-2005, and providing an expert support centre of advice and information on Occupational Safety and Health. It is charged with developing safety training for everyone concerned with work in Ireland. In addition it will promote research and studies into the prevention of accidents and disease at work.

The Authority has a website at http://www.hsa.ie/eng/

Accidents at Work: the statistics

Despite limitations, the current best source of information on the rate of death and injury from occupation in Ireland is the Health & Safety Authority.

The major limitation is that employers are required to report incidents to the Authority only when injuries cause four or more days’ absence from work. There is also an underreporting problem.

In 2011, 54 workplace fatalities were reported to the Authority. In that year there were 6,956 cases of reported injury.

However, the figures compiled for 2010 are more significant because they are not limited to the reportable injuries. In 2010, there were 79,287 cases of occupational injury or illness. A little less than half of these were reportable to the Health & Safety Authority.

These figures do not include injuries sustained in road accidents; even when these happen in the course of employment they are rarely recognised as a work related accident.

Accidents at Work: the diagnosis

It has been known for a very long time that some occupations imply risk and cause injury to workers. Agricola (1494-1555) noted the incredible death rate in the Joachimstal silver mine in the Carpathian mountains. The silver was minted into “Joachimstalers” or “talers” from which the word “dollar” is derived. After Agricola, Ramazzini (1633-1714) noted and catalogued the illnesses associated with various occupations. H.A Waldron, in his book “Lecture Notes on Occupational Medicine” quotes a surgeon, Percival Pott in 1775:

“It is a disease which makes always its first attack on, and its first appearance in, the inferior part of the scrotum; where it produces a superficial, painful, ragged, ill-looking sore, with hard and rising edges: the trade call it the sootwart. I never saw it under the age of puberty, which is I suppose one reason why it is generally taken, both by patient and surgeon, for venereal; and being treated with mercurials, is thereby soon and much exasperated. In no great length of time, it pervades the skin, dartos, and membranes of the scrotum, and seizes the testicle, which it enlarges, hardens, and renders truly and thoroughly distempered; from whence it makes its way up the spermatic process into the abdomen, most frequently indurating and spoiling the inguinal glands: when arrived within the abdomen, it affects some of the viscera, and then very soon becomes painfully destructive.”

The illness was scrotal cancer and the victims were chimney sweeps. The cancer was caused by contact with soot.

The list of occupational illnesses referred to in the Occupational Injuries scheme of the Department of Social Protection is further evidence of the extent of the knowledge available about occupational disease. However, the medical profession in general is slow to attribute fault to occupation when diagnosing illness or even injury.

 

Information on Injuries at Work

There is now far more information published, than previously, on injury and death in the Irish workplace.

See HERE for the most recent statistics from the Health and Safety Authority.

However, there is a general problem in the medical profession as to what is information, in the sense of explanation.

What does it mean, for instance, to diagnose “tennis elbow”? It can only mean that the patient has been playing tennis excessively. Of course it, inaccurately, conveys the kind of injury suffered, but it does not explain it. Suppose, as is the norm, the patient does not play tennis at all, let alone excessively? How can it be defended as a diagnosis?

This problem may become acute in the completion of a death certificate. To record that a person died of a pulmonary embolism is of limited interest. Certainly, it may allay anxiety that the person may have died through an illegal act such as murder. However, it ignores the important question of the cause of the pulmonary embolism.

Some of this may be attributable to the imperfections in medical knowledge but mostly it is a failure to think with clarity. There is room for improvement on the part of the medical profession in ascribing causes to illness and death, which do not, in effect, do more than describe symptoms rather than pinpoint causes.

It is generally felt, amongst medical practitioners of occupational health, that general practitioners should consider occupational causes for illness in their patients systematically. That is, it should be part of the taking of a patient’s history that the occupation/s of the patient be noted and inquired into as a regular practice of every practitioner.

Injuries at Work and Social Class

Irish society is, officially, divided into social classes.

This happens in the Central Statistics Office. Class is based on occupation. As ever, notions like this easily go out of date. (Builders are in Social Class 1; time to revise that!)

What does not go out of date is an underlying feature of employment; the incidence of injury in work and its relationship with occupation and, therefore, social class.

Undoubtedly, the CSO has this information now (for years the State avoided collecting it) but it is not published. It should be.

There is no doubt that there is a relationship between occupation and injury and death. Common sense suggests it, but the State has acknowledged it in the Report of the Working Party on The General Medical Service.

Here are the social classes;

Social Class 1:

Higher Professional, Higher Managerial, Proprietors and Farmers farming 200 or more acres:- Builders and contractors self-employed, with employees; Publicans, wine merchants, off-licence proprietors etc. self-employed with employees; Legislative officials and Government administrators; Engineers; Architects; Medical Practitioners;

Social Class 2:

Lower Professional, Lower Managerial, Proprietors and Farmers farming 100-199 acres; Market gardeners and nurserymen holding land; Interior decorating consultants and designers; Publicans etc. without employees; Insurance Agents; Auctioneers;

Social Class 3:

Other Non-Manual and Farmers farming 50-99 acres; Foremen and supervisors of manual workers; Typists and key-punch operators; Warehouse and despatch clerks; Commercial travelers and manufacturers’ agents; Chefs and cooks; Photographers and camera operators

Social Class 4:

Skilled Manual and Farmers farming 30-49 acres; Fishermen etc.; Mine and quarry workers; Linesmen and cable jointers; Motor mechanics; Welders and cutters; Cabinet makers;

Social Class 5:

Semi-skilled Manual and Farmers farming less than 30 acres; Forestry labourers and workers; Turf workers, excluding bog labourers; Bicycle repairers and mechanics; Boot and shoe makers (factory); Knitters and knitting/hosiery machine operators; Makers of paper and paperboard; Dock labourers;

Social Class 6:

Unskilled Manual; Agricultural labourers; Groundsmen, gardeners (unskilled) and gardeners’ labourers; Bog labourers; Lorry drivers’ helpers; Messengers; Charwomen and cleaners;

Holiday Injuries; is it a Package Holiday?

A)            If an Irish tourist is injured by, say, a taxi in Rome, while crossing the street, any claim for compensation will have to be litigated in Italy. That, presumably, is the place where the taxi driver resides.

B)            If, as it might happen, the Irish tourist is injured in Rome by a hired car driven by a person from Ireland the claim for compensation may be taken in Ireland (being the place where the wrongdoer [or one of them] resides).

C)            If an Irish tourist is injured while driving a defective car hired by him in Rome (after he arrived there), due to the defect, any claim for compensation will have to be litigated in Italy. That, presumably, being the place where the car hire company resides.

Each of the cases above is an instance of the basic rule in EU law; the defendant is entitled to be sued in the place where he resides (or the place of the performance of the contract).

There are exceptions to the basic rule. The significant exception, for tourists (who are almost always “consumers”) arises where the tourist has booked a “package holiday”.

“Package [holiday]” is defined in Section 2 (1) of the Package Holidays and Travel Trade Act 1995.

“”package”, subject to subsection (2), means a combination of at least two of the following components pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation—

( a ) transport;

( b ) accommodation;

( c ) other tourist services, not ancillary to transport or accommodation, accounting for a significant proportion of the package;”

Section 20 of the Act makes the organiser liable for “the proper performance of the obligations under the contract”;

“20.—(1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.”

Normally, a package holiday is booked in the tourist’s home country. Even is this is not the case, where the organiser directed his “activities” to the consumer’s home state the consumer is, as an exception to the basic EU rule, entitled, in both cases, to litigate disputes arising, in the tourist’s home state.

Of course the dispute must relate to “the proper performance of the obligations under the contract”.

So, if a consumer of a package holiday is injured abroad, consequent on a failure to properly perform the obligations of the package holiday contract, the consumer may issue proceedings in Ireland seeking compensation.

What are the “the obligations under the contract”? Read the contract. That reveals the explicit obligations. In addition, it is implicit that the persons supplying the services will do so competently and with proper premises and materials. That means that injuries from food poisoning, or road accidents caused by the negligence of drivers or mechanics are all suitable to be litigated under the 1995 Act, conditional on those services causing the injury being part of the “obligations under the contract”.

It is often possible to buy “add-on” excursions when in the package holiday destination. By definition, these are likely to be outside the scope of the package holiday.

Medical Negligence and the Doctors’ bill

Medical negligence is a serious problem in Ireland. It needs to be treated in a serious manner.

In 2008 we posted some facts relating to such claims on our website. See the post HERE.

Not surprisingly, medical errors happen everywhere; they are not unique to Ireland. In the USA and the UK, the responsible authorities collect statistics to find out why those errors happen. Those statistics indicate the areas of risk where those errors occur.

Information like that is very valuable; it can result in precautions being taken to prevent such errors being repeated (if medical administrators are so minded).

In Ireland, the State Claims agency is responsible for defending claims made arising from such negligence, where the defendant is a State employee or is otherwise its responsibility.

It now appears, according to the Irish Times (HERE) that the State Claims Agency thinks medical negligence claims are rising in Ireland because patients need to generate new sources of income.

This is a repetition of the claim that Ireland has (or had) “a Compo culture”. The people who made that claim were either incompetent in their job or, simply, represented the unacceptable face of the insurance industry.

Personal Injuries Claims: The State’s gift to the Defendants

How can a defendant harass a plaintiff? By bringing a motion to court. The motion will seek orders within the terms of Section 10. Under Section 14 of the Civil Liability and Courts Act 2004 http://www.bailii.org/ie/legis/num_act/2004/0031.html#partii-sec14 a plaintiff must swear, serve and file an affidavit of verification of the pleadings served. This implies that no insufficiency of pleading, if it exists, can be defended. After all, what was pleaded must be true. Is the plaintiff playing fast and loose with the truth?

The upshot of all of this is clear. Before the plaintiff’s case comes on for trial, the plaintiff will have discharged his/her burden of proof. That burden of proof is not the usual proof on the balance of probabilities. It is proof beyond a reasonable doubt. This is uniquely the burden of claimants for personal injury. No other plaintiff must reach this standard of proof.

The Civil Liability and Courts Act 2004 was, clearly, calculated to benefit the defence interest in personal injury litigation. That it is not even handed is clear.

The consequences are also clear. The motions lists of the High Court and Circuit Court are  burdened with motions citing deficiencies by plaintiffs and seeking orders under Section 10.

More seriously, recognition of the need to settle personal injury cases has receded from the minds of the defendants. That need arises from the fact that modern life injures too many persons to allow them all a day in court. There are not enough judges or courts to meet such a burden.

We now know that some at least of the defence interests could not afford to pay the claims of insured defendants. Section 10 facilitated that irresponsible position and the State is fully responsible for bringing that about.

 

Injured? What to do. (5)

Suppose a plaintiff fails to comply with the pleading requirements of Section 10 of The Civil Liability and Courts Act 2004. What will happen to the plaintiff or his/her claim? The Section provides as follows;

“(3) Where a plaintiff fails to comply with this section—

a)              the court may—

(i)             direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii)           where it considers that the interests of justice so require, dismiss the plaintiff’s action,

and

b)             the court shall take such failure into account when deciding whether to make an order as to the payment of the costs of the personal injuries action concerned, or the amount of such costs.

(4) Where a plaintiff fails to comply with this section, the court hearing the personal injuries action concerned may draw such inferences from the failure as appear proper.”

These are very strange ideas. Remember that the plaintiff has pleaded the essentials of the claim; that the plaintiff was injured; that the injury is the fault of the defendant.

Prior to 2004, for not less than fifty years, plaintiffs were not required to give any further details on the issue of proceedings. The plaintiff was, however, obliged to give the details to the defendant before the trial. It was, (and still is), in the plaintiff’s interest to find out those details and to communicate them to the defendant. Only when the defendant knows these things can the defendant readily agree to settle the claim. Settlement is the best outcome of personal injury litigation; there are insufficient judges to adjudicate on all or most claims for personal injury.

Section 10 has changed the focus. It has done this by changing the tone. Take the subject of injury. How should an injury be pleaded? Is it sufficient to say that the plaintiff’s right leg was broken? Or that he suffered a burn on his right arm?

The answer might be yes, but in practice the pleading of these injuries will rely upon the description given in an available medical report. So, the exact site of a break in an arm will be pleaded (because doctors mention these things) and the form and degree of the break will be pleaded. So, too, for the burn; where it is and how deep and how long it took to heal will be pleaded.

But suppose some of these things are not yet known? Then there is a temporary insufficiency of pleading. Time will usually cure this and the plaintiff will become enabled to plead in full.

Section 10 will have none of this. How dare the plaintiff issue proceedings when full details are not pleaded?

Look at the sanctions for this attitude problem. The judge can prevent the case from proceeding until the plaintiff conforms to the new standard. Or, the court can dismiss the claim. Or the plaintiff’s entitlement to costs may be imperiled. Or the court can be portrayed as having a huffy attitude, at trial, to plaintiffs whose pleading does not meet the standard the court might be persuaded to adopt on these questions.

These disputes will emerge long before the trial. They will, usually, emerge before the close of pleadings.

What does that mean?

Currently, it means that the pleadings are closed when the defendant serves a defence.

So, the defendant will harass the plaintiff so that the defendant’s obligation to serve a defence can be evaded.

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