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Published 2 septiembre 2020
Wallace –v- Colchester Borough Council
THIS IS A USEFUL NEEDLE STICK INJURY CASE WE RECENTLY TOOK TO TRIAL WHERE WE WERE INSTRUCTED BY ZURICH INSURANCE WHICH SHOWS THAT WITH THE RIGHT PREPARATION AND GOOD WITNESSES THESE CLAIMS CAN BE SUCCESSFULLY DEFENDED.
The Claimant, a 35 year old loader/recycling operative employed by Colchester Borough Council in their waste collection service. In accordance with what is apparently standard practice, he was sorting through a mixed recycling box when he suffered a needle stick injury from a discarded needle in a recycling box. The Claimant alleged that the Council knew that the gloves provided for use by the operatives did not provide adequate protection against injuries from sharps including needles. In fact a different type of glove had been previously issued which did provide a greater degree of sharps protection, but the gloves were considered too cumbersome to use by the operatives and were changed to the ones being used by the Claimant on the day of his accident. The gloves provided were abrasion resistant, blade cut resistant, tear resistant and puncture resistant. The Claimant’s witness evidence did not allege the PPE provided was inadequate but rather that the failure to provide separate recycling boxed for paper and glass/metal and the system of sorting recycling at the side of the road was the cause of his accident. The system of sorting was maintained despite complaints having been made. The Claimant alleged that, had recycling been undertaken at the depot, the accident would have been avoided. The Defendant had in place good training and instruction and the tasks to be undertaken were risk assessed. Furthermore, the Defendant pointed to the fact that there had been only one previous incident of a similar nature ever recorded despite there being around 400,000 collections a month. The Claimant claimed for the injury itself but also for the stress and anxiety caused by the possibility of infection or disease from the needle. He had required months of antibiotics and injections with repeated attendances at hospital. The Claimant confirmed in his evidence that there was no form of mechanical equipment which could have been used to sort the recycling and this had to be done by hand. In the circumstances the need for operatives to undertake the task could not be eliminated. Whilst the Defendant was unable to produce the risk assessment which pre-dated the Claimant’s accident, the Defendant was able to give evidence to confirm the risk assessment had remained unchanged and was simply overwritten each year. No adjustment had been made to the risk assessment following the Claimant’s accident. In dismissing the claim, Recorder McLoughlin held that he was notsatisfied that it was unsafe to sort recycling at the roadside. It was accepted there was a risk of injury present but actual injury was minimal. As such there was no clear evidence of an unsafe system. The gloves which were provided were sufficient despite other gloves being available and the gloves issued remain in use. The Claimant would have needed to produce expert evidence to show that the gloves were not sufficient and this he had not done. In any event, the gloves did conform to EN338.
In short, with the right evidence, even tricky EL claims such as this can be defended to Trial especially where there is minimal risk of injury with no relevant history of any similar accident.
We would like to clarify a point in our previous E-alert concerning E-Scooters. While the Government has indicated that following trials it may look to amend the law to treat e-scooters more like electrically assisted pedal cycles, they will, for now, continue to be classed as motor vehicles, meaning requirements to have insurance and the correct type of driving licence will continue to apply.
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