This article examines the dangers posed to nurses in what is apparently the simplest of situations: lifting patients. The workplace context of back injury and associated musculoskeletal injury could be the hospital or the community, for example, in a patient's home. An absence of adequate devices for lifting and handling patients is apt to add to the risk of injury. The author looks at levels of financial compensation and reports some astonishing attitudes taken by employers, which should raise an alarm regarding the human and financial cost of a failure to implement a safe system of work.
The common law duty to establish and maintain a safe system of work
The Health and Safety at Work Act 1974 (Health and Safety Executive (HSE), 1974) created a Commission and an Executive to make policies for, and to oversee the enforcement of, safe working conditions for employees. The Act gives power to appropriate government departments to make regulations applicable to the sectors for which they are responsible. The Manual Handling Operations Regulations 1992 (HSE, 1992) (amended 2002) are of particular relevance here. Employers have a legal duty to assess manual handling operations and are required to put in place and maintain a safe system. They must provide ‘adequate’ training. The regulations recommend that training should be given at intervals of no less than three years or whenever there is a change in work practices resulting in the introduction of a new system of work related to manual handling or use of lifting equipment. The Act consolidated and improved upon earlier legislation, which had aimed to correct some of the worst excesses of the Industrial Revolution of the 19th century. Financial compensation for victims, or dependent or surviving relatives, is an altogether different part of the law.
However, the 1974 Act is, in fact, part of the machinery of the criminal law. Its provisions have been wheeled into play in mishaps as far apart as train disasters (for instance, the rail crash at Potters Bar on 10 May 2002, which caused numerous passenger deaths was followed by a fine of £3 million (BBC News, 2011)) and deaths of dependent patients (The Priory was recently fined £300 000 in the wake of the death of a young, highly dependent, patient (Telegraph, 2019)).
But the Health and Safety at Work Act (HSE, 1974) has nothing to do with the common law duty to create and maintain a safe system of work for employees, and compensation for injuries received at work has been part of UK law since the later 19th century. It is a major part of the common law, that is, the law developed by the decisions of courts of law.
Courts are guided by precedent or judicial decisions made by judges in earlier cases (Cross and Harris, 1991). But if there is a living common law that accords with the times, and, in the present context, with working conditions and the availability of practicable precautions, the court does not blindly follow earlier judicial decisions. It will normally follow them, and, in so doing, continues a thread of consistency and predictability (for both claimants and defendants). New social or working conditions may, very occasionally, call for judicial changes in the law. A new precedent is set which remains unless and until something pressing calls for the law to be changed again.
The ever-present and worrying question of staff shortages in nursing adds an extra dimension to system safety. The legal duty that the common law places on an employer involves the provision of safe equipment (appropriate lifting gear), safe colleagues (qualified, trained, experienced) and a generally safe working environment (including with regard to communication, especially at handover) (HSE, 1992; amended 2002). The third of these legal demands becomes particularly onerous when staff, in any given work environment are thin on the ground. In a world of significant staff shortages, it is incumbent on an employer to inject sufficient flexibility into their employees’ working conditions to avoid foreseeable accidents.
Musculoskeletal injuries sustained by nurses outside the hospital setting
The practical possibility of back injuries occurring in a home setting is perhaps higher than that of such injuries occurring in a hospital or institutional setting. Hospitals possess lifting equipment, such as personal hoists and other patient-handling aids. Relatively few homes do. So what is a community nurse to do if the patient requires lifting or other physical handling requiring the capacity to sustain weight?
The employing authority or agency, if the nurse has one, should have in place a safe working practice designed to avoid foreseeable risks of injury attendant to the nurse's practice and environment. In some cases, perhaps, two professionals should be involved, or, occasionally, more, depending on the patient, their environment and the purpose of the lifting envisaged. Discussion with professional insurance services is always advisable, because bespoke or at least fairly specific cover can be arranged according to the circumstances of a particular practitioner.
The case of Mrs Stewart
Mrs Stewart was a highly experienced and dedicated nurse. She was employed as a staff nurse by a health board in Scotland (in England, formerly, a health authority). At the time of her accident, she was working on the night shift on a ward for dependent older patients. One of her patients, a woman of some considerable weight, wanted to use the lavatory one night and called for assistance. This is where the problem started. There would normally have been three nursing staff on the ward, a number deemed adequate by the management and nursing staff for the requirements of the ward. Unfortunately, one of Mrs Stewart's colleagues had been unable to come into work, and the remaining colleague was taken ill and had to leave the ward. A stand-in nurse was not provided, for reasons that were never clear but that were almost certainly related to the shortage of nursing staff in the hospital.
Mrs Stewart had no choice but to help the patient, to begin with, by lifting her out of her bed. That was the last act of Mrs Stewart’s nursing career, for she suffered a severe musculoskeletal injury causing her to become permanently disabled. A national publication on compensation for personal injuries reported Mrs Stewart’s successful claim following receipt of a helpful report contributed by her solicitor (Writer to the Signet in Scotland).
On 16 October 2002, BBC News reported an award in the High Court of £420 000 to a nurse whose life was rendered a misery following a back injury sustained at work (BBC News, 2002). The management told the judge that it wished to appeal the decision, although it is unclear from the report whether it wished to appeal the liability or quantum (amount) of damages. The management had already incurred more than £400 000 in legal costs for defending the claim. The judge told it that there was no chance of a successful appeal.
The intervening years between Mrs Stewart’s case and the one reported above saw the introduction of management into health services. Although there have been, and continue to be, many refreshing exceptions to an attitude of superiority, there has developed, in some quarters, an attitude to nurse safety at work that approaches the breath-taking.
A little-known fact is that nurses lift, on average, 1.6 to 1.8 tons per shift (Charney, 1999). That compares with the world record in the clean-and jerk lift, namely, 190 kg, and equates to 4 to 4.5 times the world weightlifting record in one shift, every shift.
A note on damages by way of compensation
So what are damages awarded for? What are they supposed to do? No amount of money can replace a lost limb, nor stop the pain and suffering caused by a chronic musculoskeletal injury. But if a nurse has been injured, they might as well get some money for it. This may come across as a crude view, but there are many different elements to an award of personal injury damages. In addition to actual damages, for example, for treatment and to compensate for future loss of income, there are general damages for ‘pain, suffering and loss of amenity’.
Judges in personal injury cases apply ‘tariffs’, that is to say, financial brackets to particular forms of injury and to the foreseeable effects on the claimant, their age and working status and their foreseeable environment. It was not always the case, and the level of awards was apt to vary widely and beyond the reasonable possibility of accurate prediction. A considerable degree of consistency, and thus predictability, was established by the multiple claims examined in Heil v Rankin and other cases (2000). While none of the test cases concerned precisely the type of injury under consideration here, it is indicative of the level of award appropriate to an injury causing serious or catastrophic effects on the victim.
What brought about this test case was a feeling among the judiciary with experience of personal injury awards, and among personal injury specialist lawyers in general, that the amounts of compensation that had come to be awarded in injury had fallen behind, in some cases, considerably behind, what was fair. Increased life expectancy in the modern age was a particular influencing factor. Put simply, the victim of an accident would have longer to bear the effects of their resulting condition.
Another factor to be taken into account is the developments and improvement in approaches to treatment. As clinical science advances, so may the cost rise.
The rulings affected the monetary reflections of ‘tariffs’ at various levels of seriousness. It was solely the amount of appropriate awards that was in issue. The principles underlying the award of monetary damages to compensate personal injury remain unaffected. The highly experienced court emphasised that the guidelines should remain unchanged for some time to come, unless or until there arose a reason to consider that the monetary amount of awards had lagged behind again. The immediate impetus for the special Court of Appeal hearing was the Law Commission’s Consultation Paper No. 140 (1996) and prompted by these feelings among personal injury specialists.
Since the Law Society's relaxation of the rules governing solicitors' advertising their practice, the UK internet abounds with sites containing the outline of awards which give only a partial view of awards that have been made or out-of-court settlements that have been agreed. In human experience, no two cases are precisely the same when it comes to putting a monetary value on pain, suffering and loss of amenity. Suffice it to say that in the Heil v Rankin (2002) litigation, a cap of £200 000 was put on these ‘general’ damages.