Occupational Health Law. Diana Kloss
victim from the wrongdoer in respect of loss or injury. The duty is to take the care which the reasonable man would have taken in all the circumstances of the case. Who is the reasonable man? He is the average, ordinary man ‘on the Clapham omnibus’, as one Victorian judge put it. If he holds himself out as having a particular skill, like a doctor, nurse, solicitor or accountant, he is judged by the standard of the reasonable average member of his branch of the profession; if an action is taken in the courts this standard will be explained by expert witnesses drawn from the same profession. That the standard of care expected from a member of the health care professions is that of a reasonable member of the profession was established for doctors in the case of Bolam v. Friern Hospital Management Committee (1957), subsequently always referred to as the Bolam test. In the case of Bolitho v. City and Hackney HA (1998) the House of Lords held that the standard of care was that of ‘responsible, reasonable and respectable’ practitioners. After this, medical expert witnesses have to demonstrate the reasonableness of their opinion, usually by citing published research, rather than relying on an assertion that their eminence dictates that their views must be respected.
A failure to take reasonable care will not in itself give rise to a civil action for damages: there must also be damage to a claimant or claimants. (The law of negligence is examined more fully in Chapter 6). An instructive case was that of Stokes v. GKN (Nuts and Bolts) Ltd (1968). Mr Stokes was frequently required in the course of his employment as a tool‐setter by GKN to lean over oily machines. He died of scrotal cancer after 15 years’ employment. The risk of cancer from mineral oil was established by research from the late 1940s. In 1960, the then Factory Inspectorate published a leaflet advising employers to give warnings to and monitor those who worked with mineral oil. GKN employed Dr Lloyd as a full‐time OH physician; although he realised the risk, especially as another employee in the same factory had died of scrotal cancer in 1963, Dr Lloyd decided that the risk was too small to make periodic inspections and warnings necessary. Stokes died in 1966 and it was held that if he had been warned earlier he might have survived.
The judge recognised the dilemma of the OH physician:
A factory doctor when advising his employers on questions of safety precautions is subject to pressures and has to give weight to considerations which do not apply as between a doctor and his patient and is expected to give, and in this case regularly gave, to his employers advice based partly on medical and partly on economic and administrative considerations. For instance he may consider some precaution medically desirable but hesitate to recommend expanding his department to cope with it, having been refused such expansion before; or there may be questions of frightening workers off the job or of interfering with production.
Dr Lloyd had seen one man in 1962 who had been advised by a specialist and his GP to cease working with oil; Dr Lloyd told him to stay at work to keep up his earnings. He had given a talk to the works council in 1963 about the importance of changing working clothes; he had mentioned scrotal cancer in the talk but it had been omitted from the minutes which were generally distributed because they were read by both sexes! It was held that the doctor was negligent in not warning and testing the workers. As he was an employee, GKN were held vicariously liable for his negligence and had to pay damages to Mr Stokes’ widow.
Compare with Brown v. Rolls‐Royce (1960) in which an employee contracted dermatitis through contact with machine oil. The employers did not supply barrier cream, about which at the time there was a division of opinion in the medical profession. The employers relied on their medical officer, Dr Collier, and on his advice barrier cream was not one of the precautions required, though most other employers did supply it. The court held that there was no negligence, because it had not been proved that barrier cream was an effective precaution against dermatitis in this job.
A number of different points arise from these cases:
1 They demonstrate the inherent dilemma in the position of the OH professional with duties to both employee and employer, but they also illustrate that the primary duty is to the employee. With respect to the judge in Stokes, it is not the job of the doctor or nurse to balance the books. Of course, the OH department must exercise common sense and tact when dealing with both management and trade unions. There will be some suggested changes to the working environment which will make life more pleasant but are not absolutely necessary, and others which are needed to protect against harm. Therein lies the importance of the expertise of the specialist. He must be able to present information about the likely medical risks (based on his reading of official publications and the results of research published in medical journals) to management so that they can make an informed decision. He should also have some knowledge of possible precautionary measures and their efficacy. If he finds evidence that there is a real risk of injury, it is his duty to communicate it to the employers, however much preventive measures may cost. He cannot thereafter be held responsible if they do not take his advice, though this may eventually be held to be negligence by the managers. In the long run it may prove cheaper to spend money on precautions now than on damages later, quite apart from the human costs.In a case heard in 1984, James Kellett claimed damages for industrial deafness sustained in the course of his employment in the British Rail Engineering works at Crewe. He was first provided with ear muffs in 1979. His case rested mainly on the argument that he should have been provided with hearing protection at a much earlier date. In a previous decision relating to shipbuilders (Thompson v. Smith’s Shiprepairers (1984)), the court had set the date when the average British employer should have taken precautions against noise‐induced hearing loss at about 1963 when a government report, Noise and the Worker, was published. However, in British Rail’s employ in the early 1950s was a Divisional Medical Officer at Eastleigh, a Dr Howkins. This exemplary physician wrote to the Chief Medical Officer of BR in 1951 that he had tested samples of ear defenders in the boiler shops and had found them particularly effective. A request from him and from the works committee that the defenders should be provided free of charge was rejected by management because of the cost (1s 3d a pair). In 1955 a proposal from a consultant physician to do research into industrial deafness in the workshops at Swindon was rejected by BR management partly because of fears that it might precipitate claims for damages from the workers. Because of this evidence, the judge in Mr Kellet’s case set the date at which BR should have provided ear defenders as 1955, eight years earlier than for industry generally (Kellett v. BR Engineering). This may not seem so significant until it is appreciated that there were over 2000 claims for industrial deafness made against BR and that the earlier date substantially increased the measure of damages in nearly every case.
2 They show that the employer is vicariously liable in civil law for the negligence of OH professionals as long as they are directly employed. The employer may also be liable for the negligence of an independent consultant in some circumstances following the extension by the courts of the rules on vicarious liability in recent case law (Chapter 6).
3 They demonstrate how important it is to keep up‐to‐date, especially with government publications. Another case, Burgess v. Thorn Consumer Electronics Ltd (1983), concerned a Guidance Note from the HSE about tenosynovitis. This was received by Thorn at their factory at Bexhill, but the personnel department failed to recognise it as an occupational hazard for the workers. At the factory, there was no specialist OH assistance; the ‘surgery’ was staffed by first‐aiders. It was held that the employer was negligent in not warning Mrs Burgess that if she started having pains in her wrist or arm she should see her doctor immediately. If she had been warned the condition could have been diagnosed before surgery was needed.
Doctors have taken the attitude that, when they examine an applicant for a job or for insurance or entry to a pension fund, they are not in a doctor/patient relationship with that person. They see themselves having three forms of contact with patients: the traditional therapeutic relationship, that of the impartial medical examiner reporting to a third party, and that of the research worker. The implication for some doctors is that they are not as strictly bound by ethical duties in the second and third situations.
The absence of a patient/physician relationship may result in the absence of an unambiguous duty of the physician to uncover