17 June 2002
What is the first thing that comes into your head when you hear the words 'personal injury'? A broken leg? Brain damage? How about deep vein thrombosis or work-related stress? The first two conditions might have been at the forefront of your mind 20, or maybe even 10, years ago, but nowadays personal injury (PI) means much more than just a fractured femur.
As society and technology rapidly advance, different types of physical and mental conditions have been established, and the public's perception has changed in that it is usually convinced somebody out there is liable for its injuries. An obvious and stark comparison is World War II and the Gulf War. How many soldiers who survived the battles of 1939-45 even dreamed of receiving compensation for the physical or mental traumas of fighting in the war? Probably very few; yet recently Gulf War Syndrome was recognised as a medical condition by a pensions tribunal, and every Gulf War veteran is probably aware of the fact that they might be able to obtain damages. And Gulf War Syndrome is the tip of the iceberg, as there are other relatively new types of PI claim out there that PI lawyers of the past might have never believed possible.
Gulf War Syndrome
After years of campaigning, war veteran Shaun Rusling has finally been allowed to receive benefits for the ill health he suffered following his service as a soldier in the Gulf War. While some army-related conditions are easy to diagnose, Rusling and several other former army members faced the difficulty of their condition not being recognised officially.
There are a number of potential causes of what is known as Gulf War Syndrome. The use of depleted uranium in Gulf weaponry, leading to radiation poisoning, and the multiple unlicensed vaccine doses received by the soldiers are believed to be the main perpetrators. Rusling was diagnosed with arthritis and osteoporosis in the spine, hips and wrist, as well as post-traumatic stress disorder following the conflict; other 'classic' symptoms include insomnia, fatigue, headaches, swollen glands and fever.
According to research, nearly one in five Gulf War veterans believe that they suffer from the syndrome. However, the Ministry of Defence (MoD) has continually dismissed the existence of such a condition, claiming that the soldiers' symptoms should be seen as part of an understandable pattern of normal responses to the physical and psychological stresses of war.
A pensions appeal tribunal has recently intervened and recognised the existence of the syndrome, although the MoD is considering the ruling, meaning that further litigation could finally determine the issue.
McDonald's fast food chain, like any other occupier of a massive number of premises, faces hundreds of PI claims every year. But the most high-profile actions so far relate to the drinks cartons used by McDonald's for its hot drinks, such as tea and coffee. Recent litigation in the UK has reflected similar cases in the US.
In the UK, 36 claimants sought damages after suffering scalding injuries from the drinks, and in the preliminary trial it was held that McDonald's was not negligent in serving tea and coffee between 75° and 90° centigrade. The only way that the claimants' injuries could have been avoided would be to serve the beverages at temperatures that would have been too low. It was also held that the cups and lids were adequately designed to retain a hot drink if the cups were tipped over. Similar claims in the US were successful, and it would not be surprising if the UK decision is appealed.
Every day insurers face worries over new types of claims being thrown at them, and therefore the decision in Sutherland v Hatton & Other Actions (2002) will grant the insurance industry some sort of financial relief. Work-related stress claims have increased continually over the last decade, and the Court of Appeal eventually laid down guidelines for courts dealing with negligence claims against employers, where claimants had to stop work due to stress-induced psychiatric illness. In appeals from four different county court decisions, Lord Justices Brooke, Hale and Kay set out procedures making it more difficult for stress-suffering claimants to successfully receive damages.
The key issue was whether the type of harm to the employee was reasonably foreseeable; and that foreseeability depended upon what the employer actually knew, or ought reasonably to have known, about their employee's condition.
Because an employer would not reasonably foresee that one individual employee was suffering from mental illness, it was up to the claimant to notify the defendant of their condition well before making a claim. A claimant had to show that the breach of duty had caused or materially contributed to the harm suffered, and it was not enough to show that occupational stress had caused the harm. This judgment clearly put a stop to stress-related claims flowing through the courts, as the onus is now on the claimants to prove their illness at some stage during their employment. Otherwise the strong foreseeability argument comes into play.
Technology will no doubt be the largest factor in new types of PI claim that arise in the future. While repetitive strain injuries (RSI) have become commonplace in terms of manual labour, the increased use of personal computers (PCs) means that office workers could also begin to make RSI claims.
PCs may end up being the cause of eyesight conditions, and the mobile phone industry might be subjected to mass litigation, as medical experts have already advised that overuse of a mobile phone can lead to radiation poisoning.
Power stations are a more obvious radiation source, and it would be unsurprising if radioactive energy is blamed for new medical conditions in the years to come. But whatever the cause, PI lawyers will never be short of new symptoms, syndromes and disorders to learn about.
Michael Leyland is an assistant editor at Lawtel
Sam Bogle & Ors v McDonald's Restaurants Ltd (2002), LTL 9/4/2002