Male: 41 years old at date of accident; 45 years old at date of settlement.
Employers' Liability: On July 28, 2008 the claimant (C) was working in the bakery section of the defendant (D) when he injured his right shoulder moving a tray rack full of desserts from a chiller. The top two trays fell forward and to stop them from falling on top of him, he instinctively put his right hand up and took their full weight. He stopped them from falling, but was unable to slide them back into position. He had to bear the weight of the fully laden tray until assistance arrived. He was immediately aware of pain in his right shoulder. On August 11, he attended his GP due to persisting pain, and was certified unfit to work for a week. However, D told him that he would not be paid for time off and he therefore continued to work. His shoulder problems were still symptomatic when he had a second accident at work on June 22, 2009. That accident occurred when C stood up from a chair and a colleague moved the chair without warning him. When C sat down again he fell backwards, striking the back of his head against the edge of the table behind him.
C sustained injury and brought an action against D alleging that it had been negligent.
In relation to the first accident it was alleged
- D had breached the Manual Handling Operations Regulations 1992 in failing to avoid the need for the claimant to undertake the task described since it involved a risk of injury, failing to make any or any proper risk assessment.
- Negligence was further alleged for failing to fit a vertical stopping bar to each of the tray racks and failing to heed properly in time or at all previous similar incidents and frequent oral complaints by staff. Failing to adopt or devise a safe system of work;
- In relation to the second accident it was alleged D failed to ensure C was reasonably safe while undertaking his work, they failed to ensure he had a safe system of work and failed to ensure he had competent fellow employees.
Liability admitted in part.
C sustained soft tissue injuries to his right shoulder and developed an impingement syndrome as a result of the first accident. Following the second injury he also suffered a mild head injury and concussion.
As a result of the first accident, C underwent 18 physiotherapy sessions and had three steroid injections. The second accident exacerbated his continuing shoulder symptoms. On February 12, 2010, he underwent an arthroscopy and a subacromial decompression of the right shoulder. A period of four months off work following the surgery was attributed to the first accident. Following the second accident, C developed a post-concussion syndrome and experienced a moderate depressive episode. He suffered from loss of libido and impotence, had poor concentration and was frequently weepy. His marriage subsequently broke down. C took painkillers and underwent counselling and cognitive behavioural therapy sessions, but there was little improvement and he attempted suicide on two separate occasions. Pain and loss of sensation in his left arm and neck was diagnosed as left brachial neuritis. His ongoing symptoms were attributed to a chronic pain disorder associated with psychological factors following the second accident. He had not been able to return to work following the second accident.
The orthopaedic evidence suggested that C's right shoulder symptoms would be permanent, that there would be no further improvement, and that he was disadvantaged on the open labour market in relation to jobs which required repetitive or strenuous upper body movements. In relation to his chronic pain disorder, C's psychiatric expert advised that he needed further cognitive behavioural therapy and an anger management programme. Thereafter, a complete psychological recovery was expected within six months, with C being able to return to work.
Out of Court Settlement
£73,000 total damages
Background to damages
D admitted liability for the second incident, but liability remained in dispute for the first.
The case was settled on a global basis with no particular breakdown of damages. However, the following breakdown was estimated by the claimant's solicitors:
Breakdown of General Damages: Pain, suffering and loss of amenity: £15,000; Future loss of earnings: £10,000; Future care: £2,000
Breakdown of Special Damages: Past loss of earnings: £31,000; Future medical expenses: £13,000; Past care: £2,000
Body Part: SHOULDER - ARM - SHOULDER, RIGHT - RIGHT SHOULDER - LIMB - UPPER LIMB - HEAD - NECK - BRACHIUM - ARM, LEFT - LEFT ARM - ARMS
Condition: SOFT TISSUE INJURIES TO SHOULDER - IMPINGEMENT SYNDROME - CHRONIC PAIN DISORDER
Russell-Cooke for the claimant.
Kennedys for the Defendant
LTLP1 23/11/2012 (Unreported elsewhere)
This Quantum Report was provided courtesy of Daniel O'Keeffe, solicitor for the claimant.