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Personal Injury Law Review Autumn 2006

Guardian Newspapers in RSI payout

A Guardian Newspapers night editor who was refused access to the company physiotherapist after developing repetitive strain injury has been paid £37,500 in damages. She was supported in her claim by the NUJ who instructed Thompsons to act on her behalf.

Andrea Osbourne, who had been a casual at the paper for two and a half years, worked almost exclusively using a mouse up to 45 hours a week without a break. No risk assessment was carried out when she started the job in February 2001.

By May 2002 the stiffness and pain was so acute she could not even lift a kettle. Her GP diagnosed RSI, and because of the long NHS waiting lists for physio, advised her to see the company’s physio. The Guardian refused because she was a casual worker.

By March 2003, she was unable to work and suffered financial difficulties. Gradually, following nine months of rest and physio, she eventually secured a lower paid job in new media.

Marion Voss, Andrea’s solicitor at Thompsons, said: “The Guardian failed in its duty of care to Andrea. This is one of the worst cases Thompsons has seen of a newspaper employer refusing to follow basic health and safety procedures.”

Negligence redefined

The Compensation Act was passed by Parliament just before the summer recess.
It is the Act that reverses the Barker asbestos decision by the House of Lords (see pages 4 and 5).

The Act gives a new definition of negligence to be considered by the courts including a new concept of ‘desirable activity’, which if a person was engaged in would not lead to a finding of negligence.

This is despite the view of the Lord Chief Justice that there was no need to do so and that current case law more than adequately defined negligence in a way that did not encourage litigation.

There was sufficient ministerial reassurance in the House of Commons and the House of Lords that employees such as a fire fighter or an ambulance worker (by definition involved in a desirable activity) will not be caught by the concept. Time will tell what the courts make of this.

The regulation of claims management companies in the second part of the Act, a welcome move, was originally sufficiently wide to catch union legal schemes.

But the government has agreed to exempt unions by regulation. There is to be a protocol drawn up, which is still in discussion, about the way in which union legal schemes operate so that their distinct nature is recognised and effective exemption follows.