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Jean-Yves Gilg

Editor, Solicitors Journal

On the safe side

On the safe side


Employers that ensure they implement the correct health and safety procedures are unlikely to be found liable for workplace accidents, says Dan McCauley

Claims arising from accidents at work can adversely affect businesses in a number of ways, including a loss of output, damage to their reputation and increasing insurance rates '“ all before the case is even heard in court. But a recent case will reassure defendant lawyers that, while defending clients against sometimes arbitrary injury claims can be costly in terms of money, resources and time lost, the courts are prepared to consider each case on its own merits and will not order an organisation to pay its employees damages for workplace injuries if they have done everything right in terms of risk assessments and health and safety procedure.

In Hough v Monarch Airlines Limited (not yet reported), the claimant was employed by the defendant airline as a cabin purser. Her duties during the course of a flight included supplying passengers with DVD digi-players (as in-flight entertainment) and these were dispensed from a trolley stored onboard. On 9 August 2006, during the course of a flight between Manchester and the Dominican Republic, she alleged that she had suffered a straining injury to her neck and shoulder when she moved a trolley containing the DVD players out from stowage. She argued that the trolley was extremely heavy and there was very little space to manoeuvre it.

Hough argued that she was left suffering from permanent symptoms and claimed for damages of around £135,000. An order was made for a split trial (where the issue of liability is determined before the issue of the value of the case) and, regarding liability, HHJ Armitage QC determined that Monarch Airlines was not liable for the injury.

Failure to make use of procedure

Hough's arguments were weakened by the fact that she, as a senior member of the cabin crew, had a duty to make a record of any defective pieces of equipment and ensure that they were withdrawn from service and marked accordingly. Hough didn't do this when her injury occurred, although she did not accept that the trolley was ideal. It was also found that Hough's duties included filling in a debrief document at the end of the flight, and there was no mention of the incident recorded in this. The claimant had therefore failed to make use of the procedures available to her.

Nonetheless, the judge found that the claimant did sustain an injury and had mentioned it during the course of the remainder of the flight and that her reaction to the incident at the time suggested she didn't consider it significant, which is why she did not include it in the debrief report. It was only later when the pain continued that she began to deconstruct what had occurred (albeit not in a dishonest way).

Adequate training

Despite finding that an injury had occurred, the judge didn't hold Monarch Airlines liable for it. The defendant lawyers successfully argued that as a senior member of the cabin crew with over 20 years experience, Hough had carried out this particular task, and indeed supervised others in it, for many years. She had received adequate training and in particular, received manual handling training in 2001 which was specifically tailored to the manoeuvring of trolleys to and from stowage. Hough was also the subject of annual (in-job) assessment each year which covered manual handling best practice and the securing of trolleys. The airline also successfully argued that the task concerned had been adequately risk assessed and rightly seen as not giving rise to a hazard that could cause an injury.

Monarch Airlines had done everything right in providing Hough and its other employees with a risk assessment of the trolley manoeuvre, providing adequate training on how to safely move the trolley around and continuously assessing its employees' manual handling practice.

The case shows the importance of ensuring that staff receive adequate training and that this training should be adequately documented and records retained. Maintaining comprehensive records, such as Monarch's requirement for a debriefing report at the end of each flight, will provide valuable evidence in court if a company needs it to defend a claim. Furthermore, companies must replicate Monarch Airlines in ensuring that adequate risk assessments are carried out for procedures employees complete as part of their job so that these can be produced in court, along with evidence that the task in question is not considered hazardous.

While this case does not offer defendants comfort that a claim for damages after injury will never be brought against them by employees, it is reassuring to see that the courts will not always attach liability to an employer for their staff's injuries, even if it can be proved that the injuries did occur. Away from the headlines, many courts are taking a commonsense approach to claims for damages following accidents in the workplace, and the implementation of important safeguards (risk assessments, regular training, maintenance of records etc) will bolster the defence should such a claim be brought against a company.