Overview of Occupational Diseases
Occupational diseases are conditions, diseases and personal injuries that typically develop slowly from exposure, typically although not necessarily prolonged exposure, to a particular work environment. Some occupational diseases develop gradually from prolonged exposure. Other occupational diseases may manifest themselves, only many years after exposure.
There are a number of common features of occupational diseases. They may affect groups of people. The risk may not have been apparent at the time of exposure. The disease may develop gradually during exposure and / or after cessation of employment. There may be a latency period before development of the disease. Its full extent may not be apparent until it develops.
These factors raise particular difficulties in term of liability, time limits for litigation and insurance for both employers and employees. There may be significant difficulties in proving negligence after a long lapse of time. There may be questions as to the date of knowledge for the purpose of the Statute of Limitations. They employer may have ceased to exist. There may not be insurance cover.
Vibration White Finger
Vibration white finger, which arises from prolonged exposure to vibration, involves damage to nerves and blood vessels in the hands and fingers. Many electrical processes, in particular, those involving hand equipment such as saws, percussive drills and hammers have been identified as causes.
The risk of vibration white finger has been acknowledged for over a century. The courts in England have held for over 40 years, that the use of vibratory tools gives rise to a foreseeable risk of the injury. In some cases, symptoms are minor whereas, in others, they may be very severe, leading to gangrene, permanent discomfort and disability of the finger.
In some cases, it has been found that the employer has been negligent because it failed to take steps to mitigate the risk during the employee’s working life. Some cases have held that the employer should have identified the risk and moved the employee to other work at a certain point when it should have been aware of the risk.
Damages arising after the date on which negligence has been established may be recovered. The level of compensation in England has been relatively small (£5,000 to £50,000). Irish cases have suggested that a higher level of damages might be recovered in an Irish court.
The employer’s duty to take care for the safety and welfare of its employees covers both their physical and mental health. It extends to risks which arise from the physical and mental conditions and pressures associated with the workplace.
While pressures are a normal feature in most workplaces, liability for the results of stress may arise in exceptional circumstances. This may occur where due to the employer’s negligence, the employee is exposed to pressures which have caused the employee to suffer psychological effects that constitute diagnosable mental ill-health.
The health, safety and welfare at work legislation specifically requires that employers identify risks of workplace injuries. This includes any disease and impairment of a person’s physical or mental condition.
Stress is said to occur when there is a mismatch between the perceived requirements and pressures of the work and the individual’s ability to cope with them. Employers ought to have a stress control strategy, in order to raise awareness of psychological health issues and prevent and reduce risk. There should be procedures to treat and rehabilitate employees who are at risk of suffering the ill effects of excessive stress.
Repetitive strain injury refers to various conditions which arise from repetitive limb movements at work. It also embraces a number of phenomena, which may have physical elements but are also claimed to have social and psychological elements.
Repetitive strain injury may result from repetitive and intensive hand work in factories and industry, and from keyboard work. Those involved in factory work tend to experience the localised variety. There may be difficulties of proof as some of the activities may arise from everyday life activities. Some manifestations are linked to work, but it may be difficult to prove the link in a particular case.
Repetitive strain injury may be localised or diffuse. The latter category involves pain without a localised injury. Arguments have been made that the diffuse type of injury is due to the ordinary wear and tear of life and that attributing the injury to work is incorrect and that it is quasi- psychological.
Several cases have failed on the ground of lack of proof of cause and effect. A small number of cases have succeeded in Ireland in relation to the more specific variety of repetitive strain injury, causing localised injury.
There have been many asbestos-related claims in the United States, although the use of asbestos has largely ceased in the last 40 years. The progressive long-term nature of asbestos-induced illness is such that the adverse effects of breathing asbestos fibres may develop many years later. Asbestosis may take decades to develop.
Mesothelioma is a cancer which can develop from relatively short exposure to asbestos. Lung cancer may also develop. Cancers may be latent for many decades. The latency period of some of the most common cancers ranges between 20 and 40 years.
Mesothelioma arises from specific damage to cells, which involve a malignant transformation. Evidence shows that up to 90% of cases arise from exposure to asbestos. These typically arises up to 30 years after exposure to asbestos fibres. The risk is proportionate to the total exposure to asbestos. The severity of the condition increases with the degree of exposure. Below certain exposures, the risk of it developing is minimal.
State of Knowledge I
In common with the other industrial diseases, the employer’s state of knowledge is important. It is necessary to show that the exposure to asbestos was the cause of the illness. It is necessary to show that the employer has been at fault and knew or should have known of the relevant risk and that adequate precautions were not taken. The negligence may lie in the failure to provide ventilation or protective masks.
Although asbestos has not been widely used since the 1970s, large quantities of it remain in older buildings. When asbestos is broken, or disturbed, fibres may enter the atmosphere. They may be emitted gradually, as buildings deteriorate.
The special provisions in the Statute of Limitations Amendment Act 1991 may apply. The time runs from the date of knowledge, in personal injury claims. Issues may arise as to what is the date of knowledge.
In an English case, an award was made against owners of factories, some 60 years after children who played in clouds of asbestos in the 1930s and been thereby exposed to it. The courts held the defendant company should have known the risks as early as 1925 and should have taken precautions to protect persons in the neighbourhood.
State of Knowledge II
As medical science develops, there comes a point at which risks which are not generally known become more widely known and should be factored into the employer’s standard of care. The employer is, in effect expected to keep abreast of developing scientific and technical knowledge. Where he has greater than average knowledge, he may have a greater duty to take precautions.
Once something becomes generally known, appropriate precautions must be taken. In some cases, the courts have assisted in reducing the burden of proof of causation on the plaintiff. It has been held that if a claimant proves that the defendant’s conduct made a material contribution to the claimant catching disease, he is entitled to succeed.
Some courts have suggested that where a person contracts a disease after working in conditions which are likely to cause it, that this may establish a prima facie presumption that the disease was caused by the condition. It is then a matter for the employer to displace the presumption.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4
Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1
The Law of Torts McMahon & Binchy 2013 4th Ed Ch18
Insurance Law Buckley 4rd Ed 2016 Ch 13
Charlesworth & Percy on Negligence 2014 Walton Ch 10