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Dangerous Working Environment - When Can You Claim When You Have Suffered A Significant Injury?
22 March 2004
Not surprisingly workers are often the first to realise that they are working in an environment which may be damaging to their health. Sometimes it may be a routine health and safety inspection or an article in the media that triggers the connection, but more often it is awareness of a pattern of illness amongst colleagues that focuses suspicion on their working environment as the cause.In some cases that evidence may be clear, such as where a number of individuals develop symptoms and are then diagnosed with an identical condition, perhaps legionnaires disease in an extreme example. Other illnesses may have less striking characteristics but nonetheless show a pattern of similar illnesses amongst a group of workers as is the case with sick building syndrome.
But what is the legal position with these more vague and often less serious illnesses, when can those affected make a legal claim and what are the legal issues they can expect to encounter?
Apart from the requirement to show fault before they can succeed they must also prove injury and that the claim has been brought in time. The first issue to be aware of therefore is the law of "limitation of actions". This provides that a claim must commence in court within three years of the start of the "cause of action", as lawyers call it, which broadly means three years from the first date when a claim could be made. We have to therefore understand the ingredients which amount to a cause of action.
The first ingredient in all cases is that there must be significant injury. Time does not start to run until you have a significant injury. Significance means sufficiently serious to justify the bringing of a legal claim. A catch 22 if ever there was! What it means is that the three years does not start to run if you have minor complaints or even a series of minor complaints. Indeed there would be little point in bringing a claim about a minor complaint because it would probably not attract an award of compensation. It is more tricky when there is a series of minor complaints. When do minor complaints becomes a nuisance and interfering with the individual's day and lifestyle so that they actually amount to a significant injury?
There is no easy answer to this.
Taking the example of sick building syndrome we know that it can produce a range of symptoms such as breathing problems, headaches, colds, runny noses and other discomforts. The first couple of occasions when these appear would not be sufficient to amount to significant illness and in any event a worker might have a lot of difficulty persuading a doctor that the problems were due to the working environment because they can all have other more common causes. However if they continue when in the normal pattern of life they would not and it becomes evident that the link factor between the illness and life is work then we are getting close not only to having significant injury but also establishing the connection. (But please note that does not mean you will win a claim because you have to show fault as well).
The key to defining significant illness is therefore probably in the amount of medical attention and treatment.
However note that the three years will not start to run unless there is also the second ingredient present which is an appreciation by the ill person that their illness has been caused by an "act or omission" of an identifiable third party such as the employer. This date is the date when the worker has the first suspicion of a connection between the continuing illnesses and the workplace.
Often this connection will be a comment by the doctor saying that the problems may be work related on confirming an employers questions about whether they are. It is from that point the employee has to be on guard. Entries are often made by GP's of this sort of connection. A person who delays making a claim more than three years after they have been to see their doctor and the association with work has been made, will almost certainly have difficulty in bringing a claim.
This approach can be to the disadvantage to those who have retired. They may have suffered from symptoms for a year or two and then left work, following which their symptoms got better. Unfortunately for them the injury probably never became sufficiently significant to be legally actionable.
So if you believe you have been made ill as a result of your working environment and the illness has reached a stage when it has become more than a nuisance, requiring you to seek continuing medical attention and you suspect that it is work related, you have only three years to bring a claim. However if you have suffered in silence or suffered but not to the extent that you required medical treatment, you will have difficulty showing you have actually suffered an injury worth compensation.
Two further points to remember are that first, even long term minor illnesses do not receive very much compensation. Secondly, that in every case you also have to prove fault to the required legal standard.
The short point is that claims based on working environment illnesses are never easy. Proving the link between the work and the illness is always a problem and is totally dependent upon medical confirmation. It is this reason more than any other that makes cases based on the working environment difficult to pursue successfully. So when lawyers say "Act Now" that applies to those who have had significant injury for getting close to three years.