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Published: Fri, 02 Feb 2018

Making claims for a personal injury

The material facts of the case are: The claimant, Mrs Millward, a school teacher at Northfield and Thornbury school is making claims for a personal injury (post traumatic stress disorder) from the defendant (Thornbury school) on grounds of negligence on the admission process of SM which caused her to live nearly four years of a much altered life. She had to give up her teaching job, and also a part-time supermarket job. She has however become a changed person in many ways as testified by her husband. She has had sessions of counselling and psychotherapy and she has also needed some drug prescription.)

The claimant in April, 2000, had a confrontation with SM in the class as she was teaching SM and other students in the defendant school. SM rose up and threw his books towards her ,thereafter he threw a chair at her which struck her on the knees. He also picked up some loose, tiled table tops which were made in a CDT class and threw them at her also which she fended off with her arm otherwise, they would have likely hit her on the head. He kicked backwards at her striking her a very painful blow in the groin when he partially released himself from a staff (Miss Sillence) who came to the rescue of the claimant she as she called for help. As he was leaving ,he projected a table in the larger classroom the length of the room. It was an unpleasant assault which caused pain and consequent bruising which was also nasty but resolved quickly.

The defendant in admitting the client did not complete proper work/forms necessary for the admission of a new client. They did not also make the necessary enquiries required of them necessary to make before the admission of a new client. This was necessary to assess the risk the admission of SM will impose on staff and other service users and know how to manage the risk in their relationship with him or their everyday living

What were the Defendant’s failures according to the Claimant’s allegations?

The defendant failures according to the claimant are:

i)The claimant claimed that she was not properly trained to cope with disturbed children of which SM is one of it and the school is a school for disturbed children. However, the reverse is the case as she was adequately trained to teach disturbed children and also attended refresher courses.

ii) She claimed that the defendant did not provide a panic alarm or emergency radio to be used when in distress. The reverse is the case as the defendant provided both panic alarm and emergency radio but the claimant refused to use any of them.

iii) The claimant claimed that the defendant should have provided closed circuit television cameras in all the classes. There is closed circuit television camera in the big classroom but none in the small classroom. This was due to request from inspectors and social service to reduce use of cameras in the school.

iv) The connecting doors between the two classrooms was locked on the day of the incident and this added a few seconds to when Miss Sillence could come into the room to help Mrs Millward, and also slowed the claimant route of escape.

v) That a senior teacher at the secured unit (Mrs James) and another teacher (Mr Lockhard) were absent from school on health ground on the fateful day. However, the claimant did not raise any safety concern but raised concern on reduced staffing when she was informed.

vi)The claimant claimed that she was not informed of where to get the children’s records and risk assessments and did not know where to get them and ,as such ,she does not have assess to it and cannot consult it to know anything about SM and the way to handle him. She claimed that, she knew her way around the Northfield children’s records, including risk assessments, and consulted them when she needed to.

What legal issue(s) were considered by Mr Justice Hughes and what were his decision(s) in relation to these issues?

The legal issues considered by Mr Justice Hughes and his decisions in relation to these issues are

i)Whether the claimant was adequately trained in coping with disturbed children.

His decision is that the claimant was adequately trained and had also attended refreshers courses to enable her discharge her duties. However, her post traumatic stress disorder has been caused by this assault by SM.

ii) Whether the defendant made the environment safe by providing the necessary equipment needed by the claimant in case of emergency like panic alarm or emergency radio, etc.

His decision is that they were adequately provided to be used by staff in case of emergency

iii)Whether the defendant committed an omission and was negligent in the process of admitting SM into the institution and in the completion of his admission forms and updating his risk assessment in relation to his history of violence against female.

His decision is that the defendant committed an omission to ascertain the history of violence of SM especially towards females he has not met before.

The defendant was negligent in non completion of the documents and the process of admission of SM in the institution especially his risk assessment.

iv) Whether the defendant brought to the notice of the claimant the history of violence of SM which is contained in the risk assessment.

His decision is that the defendant did not bring to the notice of the claimant the risk of violence imposed by SM and that by pinning it on the cupboard, the claimant is not suppose to get knowledge of it.

v) Whether the defendant protected the claimant as an employer against the risk of violence imposed by SM

His decision is that the claimant was not protected by the defendant as an employer against the risk of violence imposed by SM. The defendant did not provide a second person to stay in the same classroom with the claimant when she was teaching as this may have prevented SM from reacting the way he did and also may have prevented the confrontation between SM and Mrs Millward.

v) In summary, whether the defendant is liable for the injury suffered by the claimant.

His decision is that the defendant is liable in common law for the injury suffered by the claimant by not amending the risk assessment immediately they knew or found out SM history of violence especially to female staff and for not informing the claimant of SM history to enable her know how to handle SM. However, the judge called it ‘failures of system rather than of individuals.’ If the risk which SM presented to staff, and especially to female staff, had been identified as I have found that it should have been, and communicated to the claimant as it should have been, I am satisfied on the balance of probabilities that the injury the claimant suffered would not have occurred.

Provide a summary of the Judge’s deliberation and his relevant decision relating to the EEC Council Directive 89/391, the Framework Directive

The claimant through Mr. Dyer claimed that Regulation 22.1 allows him to rely on the EEC Council Directive 89/319,the framework to claim for damages against the defendant for breach of the directive. He relied on the decision of Lord Hope of Craighead in Three Rivers District Council & others v. Governor of the Bank of England [2000] 2 WLR 1220.

However the judge in deciding this case relied on the decision of Lord McFadyean in the case of Cross v. Highland and Islands Enterprise [2001] Industrial Relations Law Reports 336 at paragraphs 107 to state that the EEC Council Directive 89/391,the frame work Directive gives an employer the legal duty to make the work environment safe for its employee and not to constitute a danger to the health and safety of its staff. It did not give right of action to the employee to recover damages from the employer for breaching that legal duty.

He went further to explain when a person under the directive have a right of action. They are:

(1) the directive must have been intended to confer rights upon individuals;

(2) the content of those rights must be identifiable from the provisions of the directive and sufficiently clear and certain

(3) there must be a sufficiently serious breach; and

(4) there must be a causal link between the breach and the damage sustained by the individual, as decided in the cases of Three Rivers District Council & others v. Governor of the Bank of England [2000] 2 WLR 1220, Becker v. Finance and Minster Inanstadt [1982] European Court Reports 53 and Frankovich v. Italy [1995] Industrial Cases Reports 722.

The summary of the judge’s deliberation in this case and his relevant decision relating to the EEC Council Directive 89/391, the frame work Directive is that the directive gives an employer the legal duty to make the work environment safe for its employee and not to constitute a danger to the health and safety of its staff but never gave right of action to the employee to recover damages from the employer for breaching that legal duty. This can be seen in the decision by Lord McFadyean in the case of Cross v. Highland and Islands Enterprise [2001] Industrial Relations Law Reports 336 at paragraphs 107.

He also relied on Management of Health and Safety at Work Regulations 1992, which was replaced by Management of Health and Safety at Work Regulation 1999, which were the operative ones at the time of this event. Regulation 3.1 of Management of Health and Safety at Work Regulation 1999 states that each employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst at work. However, by Regulation 22.1 breach of a duty imposed by these regulations is not to confer a right of action in any civil proceedings. He also looked at Articles 1.1,1.2, and Article 9.1, which requires the employer to be in possession of an assessment of the risks to health and safety at work.

Provide a summary of the Judge’s deliberation in relation to damages and the outcome of the case on its facts.

i)General damages: The judge awarded the claimant £15,000. 92 because the traumatic disorder will only affect her for only six years and not a permanent disorder.

ii) Career progression of the claimant if her career has not been interrupted by SM: The judge believed that she would have progressed to the next stage of her career.

iii) Future loss in earning by the claimant: The claimant’s earning in the future which is referred to as future loss in earning will be reduced by 25% because the joint medical result suggested that the claimant was at the far edge of her capacity and had shown some signs of stress in the past.

iv)Profit on her share option scheme: the claimant was awarded £830 as the premium for her share earnable on her monthly savings over the period of five years of the contract.

What do you think is the legal significance of this case?

The legal significance of this case is

Please follow the above structure in your answer.

Corporate social responsibility presents real opportunities for the improvement of workplace conditions and environmental performance. Critically consider the likely pitfalls and effectiveness of placing CSR within a legal framework.

Corporate social responsibility means that organisations, firms and businesses work responsibly and contribute positively to the environment they operate in. It involves the organisation or business working in partnership with its stakeholders– the community they operate in, the society in general, its employees, shareholders and their family to improve their quality of life. Corporate social responsibility determines the extent to which customers want to buy from the organisation and the rating of the organisation in the community and partners are willing to work with you.

The European Commission defines corporate social responsibility as’ A concept whereby companies integrate social and environment concerns in their business operations and in their interaction with their stakeholders on a voluntary basis.’

Corporate social responsibility can help to build and unbuild trust in business. Corporate social responsibility enables companies and its stakeholders to reconcile economic, social and environmental goals .It promotes commitment to sustainable development, economic growth, better jobs, etc

Corporate social responsibility contributes to sustainable development, ensures business organisations are not just there to make profit but are socially responsible and contribute to the growth and development of the society and environment they find themselves. Corporate social responsibility helps in building a more positive image of business and organisation in the society. It also helps build a favourable attitude towards business which helps build a favourable attitude towards businesses. It helps a business build respect for human rights, core labour standards and environmental protection.

Companies, businesses, organisations and firms are encouraged to make their corporate social responsibility available to stakeholders, customers, investors and the general public.

To discuss this question properly, let me discuss some of the basic terms in the question. They are:

What are the basic workplace conditions? Basic workplace conditions are those rights which an employee by law is entitled to and cannot be waived. They are, basically, the conditions stated by law to make the work environment conducive for working and the basic rights of the employee enthroned for the employee’s enjoyment. Some of the basic work place conditions required by law are:

–Employees should be treated with integrity and respect

–Right not to be discriminated against on the grounds of age, sex, ethnicity, sexuality, religion or belief

–Right not to be harassed or bullied at work.

–Freedom of association and collective bargaining- this gives an employee the right to join trade union and participate in the activities of the union without being punished or victimised.

–Right to whistle blowing if you find anything going wrong in the organisation

–Right to a safe and healthy working environment: An organisation owes the employees, visitors and any person coming into the environment a duty to make the work environment safe to come in and to work. The organisation should make provision for first aid equipment, fire escape route and personal protective equipment needed to carry out their duties.

–Right to compensation in case of injuries, unfair dismissal and early termination from work.

–Protection from forced labour

–No Child labour

–Good/ reasonable Notice of dismissal

–Right to have a written statement of the basic terms and conditions of work

–Right to holiday and holiday pay-An employee is entitled to twenty eight days paid holiday if he is working full time while pro rata if working part time.

–Right to sick off–Employees are entitled to the statutory sick pay if absent from work on grounds of sickness

–Right to ask for time for training and flexible working hours – An employee is entitled to ask for time off to attend training but it is not compulsory that it will be granted .However, training for staff help in staff development and growth .This at long run will also add to the improvement of the services rendered by the staff which indirectly contribute to the growth of the organisation.

–Right to wages-An employee will not be paid less that the national minimum wage and has a right to have a payslip and protected against illegal deductions.

–Right to work in accordance to the working hours directive – Applicable European commission working hours directive and national working hour directive of a maximum of forty eight hours (48 hours) per week should be respected and applied.

These are basically the basic work place condition. Some of the conditions are the right of the employee while some of them are at the discretion of the employer. However, the better the working conditions for employee the greater the growth and output of the business o r organisation.

Above all, in choosing business affiliates, the company should ensure they respect applicable laws relating to employees basic working conditions.

Likely pitfalls and effectiveness of placing CSR within a legal framework.

According to oxford Learners dictionary, pitfall is defined as an unsuspected difficulty, danger or error one may fall into.

The question is could be paraphrased into two:

1) Critically, what are the unsuspected difficulties, danger or error that one may fall into by placing corporate social responsibility within a legal framework?

2) A critical consideration of the effectiveness of placing corporate social responsibility within a legal frame work.

I shall address the question as outlined above.

The question does not add a necessary ingredient which is ‘’by’’. Is it placing CSR within legal framework BY an organisation or BY the government? Could be placing CSR as bilateral legal agreement between the state and the organisation? I shall be answering the question in all directions.

What is a framework? A framework is a structure for supporting or enclosing something else especially a skeletal support used as the basis for something being constructed.

According to the online dictionary, a framework is a set of assumptions, concepts, values and practices that constitute a way of viewing reality. It also means an embodiment of rules, laws and fundamentals.

A legal framework in this context is placing all the activities of an organisation in accordance with the laws of the land as well as what is perceived as good and acceptable in the place where business is carried out. In summary, legal framework simply means legal underlying structure of the organisation.

A business organisation can be limited liability or public liability company and it is formed basically to make profit and sustain itself. In carrying out this business, it operates in an environment and is bound by the laws of the environment it operates. An organisation will work hard to balance the interest of the environment, its staff, stakeholders, its shareholders, its subsidiaries and its affiliates. In doing this, an organisation can fall into some pitfalls while trying to place its corporate social responsibility within a legal frame work. Some of the pitfalls they may fall into are:

Risk of embarrassing litigation: An organisation will not be prone to litigation if it carries its day to day operations in accordance with basic health and safety rules, environmental laws and national laws. Contrarily, an organisation could be using thousands of pounds to pay for law suits arising from its operational activities especially where the contraventions are extracted from its own policies. Accordingly, the wordings of CSR manual should be carefully chosen. Recall that the words ‘shall’ and ‘will’ could mean two different things yet they could be used interchangeably.

Jurisdictional/Regulation conflicts: Getting the private sector actors and countries to accept obligations to be included in a legal framework is difficult and could have the potential of creating issues with sovereignty. The establishment of a unified legal norm is hard to achieve. Laws or strategies made for operations have to be tailored to the particular locality and must be flexible not rigid. Make it rigid and you pay for it. The multinational corporation (MNC), Shell Petroleum Development Corporation (aka BP) has learnt several lessons in this regard in the rich Niger Delta Region of Nigeria. Its Corporate Social Responsibility does not satisfy what most host communities want. BP’s CSR in London cannot be the same in Nigeria. Most tribal leaders were bribed in the late 80’s by Shell. The question is: Is it ethical? Well, only Shell will answer but, such bribes enabled them to carry out their operations. In 1995, the OECD coordinated the establishment of a multilateral agreement on investment (MAI) intended to provide a multilateral framework for international investment with high standards for the liberalisation of domestic investment regimes, the protection of investment and effective dispute settlement mechanism. Most developing countries argued that the MAI would allow big corporations to pollute the environment and disregard workers right with impunity. Others opined that the OECD is not the best place for such agreement.

(iii) Current corporate approaches to risk assessment are inadequate to enable multinational corporations to make informed decisions about their operational plans with a view to conflict prevention. Recall that CSR are based on the information and intelligence of the organisation’s bosses regarding its business or operations. If the inputs received are inadequate and shallow, the company’s CSR blue print is less exciting and lacking basic ingredients. In today’s highly competitive business environment coupled with extant laws that are left as safeguards, businesses can be trapped if its CSR manual infringes the rights of the relevant stakeholders.

Corporate Social Responsibility should have relevance to the economic benefits of the society, be compliant with the laws of the society, be ethically acceptable and show some bit of philanthropy. Those vested with the power of producing one should not be too mechanical and legalistic. Rather, they should be flexible and give enough room for manoeuvres. Once it is too legalistic and inconsiderate, the organization will run the risk of losing its value in the eyes of its stakeholders and customers.

For the government, it should not allow the companies to set the rules for social policy. The government is the people’s choice and answerable to the people and has the power to takeover the role of setting the rules and regulations in the interests of all groups. Voluntarism by these companies should not replace strongly worded protective legislations by the government. A voluntary approach is said to encourage companies grow, promote competition, fight collective bargaining and increase deceit. However, the government should be careful to avoid pushing companies away through any sort of legislation. Researches conducted at the university of Bath, in the United Kingdom, reviews various self regulating initiatives, as well as campaigns that oppose them to assess their effort on labour practices and employment.

2. Effectiveness of placing CSR within a legal framework by the organisation or government legalised CSR pattern.

Some companies in response to concerns about the negative effects of their operations—the possibility of human rights abuses, environmental degradation, creation of conflicts, etc have adopted voluntary and self regulating standards of corporate social conduct. However, voluntary codes of conduct are self imposed, lacks effective monitoring processes and a legally binding mechanism. Without doubts, voluntary codes and norm building provides the bedrock for full adherence to corporate social responsibility.

(i).Conflict prevention and resolution: When the CSR of an organisation favours its employees, shareholders, stakeholder, its affiliates and subsidiaries, there will not be any need for conflicts. They all will work together for the common goal of the organisation. Once an organisation enshrines its Corporate Social Responsibility in its own right in a booklet or a sort of paper, whoever wants to do business with it must have had a look at its CSR before proceeding to do business with the company. Conversely, companies and organisations’ attention could be drawn to its own ethics, principles, core beliefs and public relations activities incubated by its CSR manual whenever it goes contrarily to any of them. In this case, it is plausible to say that it is easier and practically feasible that an organisation could be brought to task based on its own freewill. Care, however, must be taken to approach this because the organisation’s internal rule could be interpreted as a convention and, most conventions are never enforceable. Although, breaking conventions are never a good behaviour and could impair on the organisation’s health and image. Good companies and those keen on retaining and protecting its goodwill will do all it can to balance what it preaches with actions.

(ii). Comparative advantage over competitors and profit maximisation: maintaining operations in conflicts remain tough and hard hence the formulation of a legal framework that promotes regional peace in areas of operations are important. ‘’Putting it upon yourself to do what you know is necessary and making it a must not only makes it compulsory but also an obligation.’’ most multinationals have been addressing the concerns of the potential social and environmental impacts of their activities abroad. An example is Shell, an oil company based in London which has come under intense pressure from certain groups over the social and environmental implications of their oil exploration and exploitation in Nigeria. In reaction to this, Shell has begun to pursue programs of corporate social responsibility. The company states: “today our community development programme in the Niger Delta region is based on the principles of sustainable development and best global practice. In 2001 we invested over $50 million in health, education, agriculture, job creation, women’s programmes, youth training and sponsorship” (Shell, 2002). The company is aware of what negative publicity means especially to its products and operations. An example is the recent disaster in the United States of America. Shell’s email network was examined and its head of the project under consideration above was indicted- he placed profit above safety. The question still being asked is: How can BP, a world leader in health and safety regulation allow its project to be done without due compliance with its own internal legal procedure? One popular safety jargon used by shell is ‘’if it cannot be safely done, then, leave it undone’’. Now, the company is facing huge clean-up bills and fines by the Obama led government. All said, the idea of placing CSR with a legal framework is worthless if it cannot be internally enforced. The effectiveness of enforcing CSR demands procedures in place to checkmate recklessness and excesses.

(iii). Corporate Social Responsibility is a badge of respectability and should be treated with the attention and consideration it deserves. When an organisation strives to excel and thrive in its chosen niche, it is expected to treat its environment and stakeholders decently. The testimony of these stakeholders will build goodwill and promote the organisation’s standing in the community. When the CSR is placed in a legal framework, it promotes and protects its honour and integrity and obliges its operations staff to act and operate in line with the stated rules. The staff are aware that failure to do so would result in dismissal hence they are determined to operate in accordance with the company’s rules.

For the government, it is pertinent to make all existing labour laws, environmental regulations, health and safety laws and basic working conditions available to both local and international companies in a simplified and readable version. All what it expects from these companies as well as what it expects them to do for the people likely to be affected by its operations should be spelt out and codified. It is enough to let them operate with due disregard for the laws of the land. When these organisations are not regulated by the government, they will do what they feel is good and this could lead both the government and these companies to a collision course. Understandably, no organisation and government wants to see an unhealthy atmosphere for business growth and enterprise.

Unhealthy Competition from its competitors: An organisation may be exposed to unhealthy competition from its competitors.

Bad reputation: An organisation’s reputation may be affected if it formulates a policy which goes contrary to

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