Employers can reduce costs from injury claims

Nervous shock, repetitive strain injury (RSI) and passive smoking are among more than 10,000 personal injury claims dealt with each year by AGF/Irish Life Holdings, according to Mr Michael Nolan, a member of its board of management.

Stress, Year 2000 and abuse cases will result in "significant developments in the litigation area in the future". Mr Nolan expects an increase in the volume of class actions, but remains sceptical that mediation will develop in Ireland: "I think there is too much in the Irish psyche and character that identifies with the adversarial element of litigation that if it does grow it will be very much a slow burn."

Speaking at the annual conference of the National Irish Safety Organisation (NISO) in Galway last Friday, Mr Nolan said that while employers have little influence over legal decisions, new areas of liabilities, or awards, they can reduce legal costs by risk prevention, claims management and by investing in new technology such as Dialogue Systems' Worksafe software, "which can be extremely beneficial in the defence of employers' liability claims".

People who suffer nervous shock resulting in psychiatric illness - or post traumatic stress disorder - have been deemed entitled to succeed against the person responsible for causing the shock in cases in the High Court and Supreme Court in 1991 and 1995 respectively, said Mr Nolan. While both cases arose from traffic accidents "such cases could and will arise from accidents to employees and indeed members of the public".

RSI is recognised by the Irish courts and employers would have to accept that there had been sufficient knowledge in work and safety practices for 20 years "to foresee the risk of this type of injury and to take all necessary precautions to avoid it. Because it is now such a well-recognised condition, no employer, in my opinion, can continue to rely upon the lack of foreseeability of injury in circumstances in which his workforce are involved in repetitive work," he said.

Employers have an increased onus to take steps to prevent workers developing RSI, particularly in circumstances where a complaint has been made either by that employee or by others, he said.

Passive smoking was recently in the news due to an unsuccessful case taken by a nurse in Britain.

"Whilst the claimant was unsuccessful on this occasion, I don't think any of us believe we have seen the last of this type of action nor would we be confident that the outcome will always be the same," he said.

As for stress in the workplace, it is only a matter of time before a common law negligence claim - possibly coupled with a claim for breach of statutory duty - is successfully prosecuted in Ireland, he said. "Employers therefore need to seriously address the issue of stress and overwork as an industrial risk in reviewing safety policy - the fact that such risks are not as tangible as trip or slip hazards does not mean that they should be afforded any less attention than the traditional industrial risks."

He believes the potential for such actions has increased following the enactment of the Organisation of Working Time Act 1997. "The very existence of legislation which addresses the issue of ill-health caused by overwork sends a strong signal that such issues are clearly foreseeable and obliges employers to act accordingly," he said.

Mr Nolan warned that insurance is unlikely to be part of the solution of the Year 2000 computer problem. "Insurance is there to protect policyholders against the consequences of unexpected and fortuitous events." Now it is commonly acknowledged that computer systems are likely to fail. So Y2K is not a risk - it is a certainty.

He envisages that cases could be taken against directors by shareholders or suppliers for failure to ensure their information technology systems were made Y2K compliant and where losses - or even closure - resulted.

Employers who fail to address bullying and sexual harassment in the workplace could be leaving themselves vulnerable to future litigation, he warned. The early signs of this are the publicity afforded to abuse cases involving teachers, members of religious orders and sporting organisations.

While these mostly concerned the abuse of minors, we have already seen cases involving sexual harassment in the workplace.

Next week is European Week for Safety and Health at Work which will focus on small- and medium-sized enterprises. For information, contact Mr John Moran, European Week Co-ordinator, Health and Safety Authority, 10 Hogan Place, Dublin 2. Telephone: 01 614 7000. Fax: 01 614 7120.