Flying high
Date: 20 November 2009
Authors: Dan McCauley
Issue: Vol 159, Issue 7394
Categories: Features, Employment, Personal injury
Accidents at work can often lead to hefty compensation claims and in high-profile cases, the damage to an employer’s reputation is often difficult to recover from. However, away from the headlines many courts are taking a commonsense approach to claims for damages following accidents in the workplace.
Claims for injuries occurring while an employee is at work can also adversely affect businesses through a loss output, damage to their reputation and increasing insurance rates, all before the case is even heard in court. But as a recent case demonstrates, defendant employers should not always have to worry that the courts will hold them liable for injuries caused in these kinds of accidents so long as they have implemented the relevant health and safety procedures correctly.
In Hough v Monarch Airlines Limited, the claimant was employed by the defendant airline as a cabin purser. Her duties during the course of a flight included, amongst other things, supplying passengers with DVD digi players and these were dispensed by means of 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 53 DVD players out from stowage. It was argued that the trolley was extremely heavy and there was very little space in which to manoeuvre it.
The claim came to Manchester County Court, with Hough arguing that the incident had left her suffering from permanent symptoms and damages of around £135,000 were claimed. 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.
Hough had claimed that the accident had occurred in the forward galley of a Boeing 767 aircraft and while she didn’t argue that the galley was unsafe, she did argue that the piece of equipment and the manoeuvre that had to be performed were hazardous. The operation that the claimant was performing was a commonplace operation carried out on aircraft everyday and there was no evidence that there was a general problem in respect of it.
Counter-argument
Monarch Airlines 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, among other matters dealt with, 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.
In his decision, the judge noted that the claimant 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. The judge also noted that Hough had the job of filling in a de-brief document at the end of the flight, and there was no mention of the incident recorded in this, meaning that the claimant had 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 that she did not consider it significant, which is probably why she did not report it in the de-brief report. It was only later when the pain continued that she began to deconstruct what had occurred (albeit not in a dishonest way).
Reassurance
This case is reassuring to defendant employers and their lawyers alike in showing 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.
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.
Monarch Airlines had provided Hough with further opportunities to mention the injury through the de-brief procedure it put in place, but her subsequent failure to note the incident left her case open to scrutiny.
Defendant lawyers are reminded that 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.
Dan McCauley is a solicitor in the commercial insurance department at law firm Weightmans and successfully defended Monarch Airlines Limited in the case referred to above.
E-mail: Dan.mccauley@weightmans.com
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