In a pickle over nickel
Disease Aware Issue 1
With very little fanfare, the Government recently announced its decision to change the composition of 5p and 10p coins. Instead of the copper and nickel alloy used previously, the coins will now be coated with nickel alone – a change that is estimated will save the exchequer close to £8m a year. The lack of publicity accompanying the announcement is perhaps understandable, as the decision to coat the coins with nickel is a controversial one.
A recent article in the British Medical Journal stated that individuals with a skin allergy to nickel may develop contact dermatitis when they touch the metal and that even limited contact could result in rashes, itching and swelling. Sweden abandoned plans to use nickel in its coins last year after deciding that the use of nickel could not be justified in light of the risks. The British Government meanwhile, has been accused of failing to carry out any research into the risks at all.
Firstly, can a member of the public, should they develop dermatitis, sue the Government for damages? What is the Government’s duty of care to members of the public and can the court adjudicate on this issue? Secondly, how will the change in policy affect employers’ liability claims? What should an employer do with a claim for dermatitis from an employee handling coins whilst at work?
Negligence actions against public bodies have, historically, been fraught with difficulty. Courts have long recognised that central or local Government bodies have to weigh and balance considerations that private individuals and companies do not. In Anns v London Borough of Merton, this was given careful consideration. The House of Lords distinguished between policy and operational decisions taken by a public body. Policy considerations (such as the discretion used to allocate Government resources) were not susceptible to review by a court. Operational decisions however, (ie the manner in which resources are implemented and used) were. The main issue then lies in determining which matters fall within which category.
The current approach appears to be one of degrees. A claim in negligence is extremely unlikely to be entertained if it arises from a Cabinet decision. Central and local authority bodies can clearly be sued in negligence, but such actions would normally arise from operational failings, such as a failure to carry out an adequate inspection of the highway. It is unlikely that the decision to change the coating of some of our small change is one which would give rise to a claim in negligence even if they were to develop contact dermatitis. A court is likely to decide that this was a policy decision and therefore not justiciable.
Even if a court did decide that the issue was justiciable, it would still have to determine whether a duty should be owed. This would involve weighing up policy considerations such as the risk of floodgates, the impact on future services and the fact that any claim would ultimately be met by the taxpayer. These factors could play a role in raising the threshold for establishing the existence of a duty. It seems unlikely that a claim would be sustainable against Government.
What of the employer's position? What steps, if any, should an employer be taking?
Should an employer be aware that the coins pose a risk at all? The fact that the coins are being minted and distributed on a wide scale with little warning or advice from the Government, might suggest not. Although the HSE classes nickel as a hazardous substance, and it adds that repeated contact with the skin can, in some cases, cause allergic contact dermatitis, it also states that casual contact does not appear to be a risk. Certainly for the majority of people handling the new coins, contact is likely to be limited, casual and fleeting.
However, certain industries or groups of people will be more at risk as a result of the change in policy – bank tellers and retail staff perhaps, as well as those involved in the manufacture and distribution of the coins themselves. Whilst most individuals are unlikely to be affected at all, there will be some who will be more susceptible – quite often these people might suffer from a constitutional skin condition already. These susceptible individuals are the most likely source of future claims.
There will almost certainly be breach if an employer knows of an individual's susceptibility and takes no steps to reduce the risk. The issue of causation would remain. Contact with the coins is unlikely to be limited to a work environment and individuals might already suffer from constitutional dermatitis. The main problem for defendants in these circumstances is McGhee v NCB. This was the case used to underpin the famous Fairchild decision on mesothelioma causation. Mr McGhee developed dermatitis following exposure to brick dust. Some of the exposure was caused negligently and some not. The Lords found the employer fully liable on the basis of his negligent contribution to the risk of disease.
Insurers often have cause to criticise Government decisions. It may be that another is about to be added to the list.