Under the COSHH
Disease Aware Issue 5
Claims for dermatitis, occupational asthma and various other respiratory illnesses can fall within the ambit of the Control of Substances Hazardous to Health Regulations or COSHH. These Regulations were most recently updated in 2012 but came into force as far back as October 1989, so apply to exposures occurring after that date.
They are notoriously onerous Regulations. Their strict application by the courts means that even employers who have done all that could reasonably have been expected to safeguard the health of their employees are often unable to defeat claims brought under COSHH. There is however, potential for the landscape to change in the light of recent legislative reform. Section 69 of The Enterprise and Regulatory Reform Act 2013 applies to exposures occurring after 1 October 2013. Claimants can no longer allege direct causes of action based on breaches of regulations such as COSHH.
Claims must be founded in negligence with the burden of proof being on the claimant to establish a failure to take reasonable care for their safety. This change in the law offers an opportunity to courts to redress this imbalance and ensure that claims are more fairly decided.
Under COSHH the definition of hazardous substances is wide. Most liquids, fumes and dusts that are used directly in, or generated by work activities and have potential to cause harm are captured. Many (but not all) commonly encountered airborne substances have been given an Occupational Exposure Level (OEL) - a maximum concentration level to which employees may be exposed by inhalation. In a respiratory illness claim the OEL can be used as a reference point to help determine whether ‘excessive’ exposure has taken place.
An employer must conduct a risk assessment and update it regularly (Regulation 6) and ensure that regular air monitoring is conducted (Regulation 10). All employees should be provided with sufficient information, instruction and training for them to fully understand the risks from hazardous substances and precautions that should be taken under Regulation 12. Health surveillance is required under Regulation 6 where there is exposure to certain listed substances, or a known disease or health effect, or a reasonable likelihood of such occurring.
The main battleground in the claims context typically lay in the application of Regulation 7. This requires that an employer shall prevent exposure to hazardous substances or, if this is not reasonably practicable, shall adequately control such exposure. If there is any way by which an employer is able to prevent exposure altogether, whether by substituting it with a safe or safer substance or by using it in a safer form, it must do so.
The landmark decision in this area came from the Court of Appeal (CoA) in Dugmore v Swansea NHS Trust & Morriston NHS Trust 2002.
In this case, it was accepted that the defendants could not reasonably have known of the risk associated with the latex gloves to which the claimant had a reaction. However, as the duty under COSHH Regulations 7 was absolute, the defendants’ arguments of reasonable foreseeability did not afford them a defence. The only possible defence open to the defendant was that they had done all that was, “reasonably practicable,” to prevent or control exposure. The CoA held that it would have been practicable for alternative gloves to be provided so breach of duty was made out. As they hadn’t appreciated the risk, the defendants took no such steps.
The recent change in the law should stop defendants falling foul of particularly harsh decisions such as Dugmore. The defendants’ foreseeability argument would give a full defence under common law. Employers should now be able to defend claims brought by employees where the substance in question is one that could not reasonably have been expected to be harmful.
There could also be a significant impact on the large number of cases that hinge upon interpretation of the second part of Regulation 7. This comes into play when the employer has no alternative but to use the, “harmful,” substance in its manufacturing processes so cannot, “prevent,” exposure altogether. In those circumstances it must do all that is reasonably practicable to ensure that exposure is, “adequately controlled.”
Under COSHH, measures to be considered include total or partial enclosure of the process, use of extraction equipment and ventilation or, as a last resort, use of appropriate personal protective equipment such as masks, respirators and protective gloves.
Where the claim relates to inhalation of a substance that has been given an OEL, provided air monitoring has been carried out, the OEL can be used to assess whether, “adequate control,” has been achieved. However, the Regulations state that keeping exposure below the OEL is not in itself enough. Exposure must also be reduced as far as is reasonably practicable. This has always made it extremely difficult for an employer to avoid liability.
Things have been yet more difficult in claims for dermatitis as there is no objective standard by which, “adequate control,” can be assessed. Where there is expert medical evidence that a claimant has sustained occupational dermatitis, there must be an implication that whatever preventative / protective measures an employer has taken have not turned out to be insufficient. Adequate control has not been achieved. In the new regime, claimant lawyers will still seek to rely upon breaches of COSHH as evidence of negligence.
There is so much published guidance on COSHH from the HSE and elsewhere that ignorance of the dangers of exposing employees to hazardous substances will very rarely offer a defence to an employer. Judges are likely to use COSHH as a guide for deciding whether a defendant has complied with its duties. However, the onus will no longer be on the employer to demonstrate that it has done all that is, “reasonably practicable,” to adequately control exposures. The duty will be a less onerous one - the duty to take reasonable care. The burden of proof will shift to the claimant to prove his or her case.
The prudent employer that has carried out a thorough assessment of the risks inherent in its work, has complied with HSE guidance and taken positive and appropriate steps to protect its employees should have every chance of a successful outcome.