14 July 2015
How Could Rats Feature in an Employers Liability Claim?
Rats are actually the key feature in a case I’m pursuing against a “major supermarket.” Contact with rats brought my client close to death after he contracted Weil’s disease.
When considering substances subject to the Control of Substances Hazardous to Health Regulations (COSHH), you wouldn’t expect rat urine to be listed as a ‘substance.’ The application of the Regulations however, can capture the most unusual of circumstances.
The COSHH Regulations are the main piece of legislation covering the control of risks to employees and others arising from exposure to harmful substances generated or connected with any work activity under the employer’s control. The main objective of the legislation is to reduce occupational ill health by setting a concise framework for controlling hazardous substances in the workplace.
The key features of the regulations are as follows:
- The employer is required to assess the risks to health arising from hazardous substances at work and decide what action is required;
- Prevent or adequately control exposure;
- Ensure that control measures are used, maintained and tested;
- Carry out health surveillance;
- Ensure that employees are informed, trained and supervised;
- Employees should be provided with appropriate Personal Protective Equipment (PPE).
When considering hazardous substances, we commonly think of biological agents, cleaning agents, paints, adhesives or other chemicals. Injury can be caused by inhalation and ingestion as well as via skin or eye contact.
I’m currently representing a lorry driver who is responsible for making nightly deliveries of fresh produce to a large number of stores.
After unloading cages full of produce from his trailer, he then collects empty cages full of waste. The cages are usually kept inside store yards which are often frequented by rats attracted to the vast amounts of food waste on offer.
My client had never even heard of Weil’s disease and had no idea it could be caught via contact with rat urine until he was diagnosed with the disease after suffering from severe flu like symptoms, kidney failure and loss of liver function. He actually came very close to death and it was only after he received his diagnosis that he thought about how he may have contracted it.
The doctors treating him asked whether he worked with waste or if he had been near a river in the time immediately before his ill health. He hadn’t. But, when he thought about his work, he realised he had probably been regularly exposed to rat urine whilst handling the cages full of waste.
My client has shown me plenty of photographs and video footage illustrating the problem of rats running into and over the cages which are then handled by workers.
Rats are incontinent and the cages and their contents would have been heavily contaminated with rat urine at some point. As the cages are kept outside and exposed to the elements, any resulting wetness would often go unnoticed.
My client told me how moisture from the cages would drip onto the floor of his lorry. The fluid would be collected by the internal trailer bulkheads and because these were raised to the roof, moisture would often drip onto his face. He remembers having both an open wound on his face at one point as well as an occasion where fluid dripped into his eye.
He also said his gloves were made from absorbent material and no other PPE was ever provided. This meant that he would only need to have a small cut on his hands for rat urine to infect him via his gloves or through a minor open wound such as the one he had on his face.
Is liability established under COSSH? Let’s work through this case step by step.
Rat urine is a substance hazardous to health as it falls within the catch-all provision defined within the regulations - it being present in the workplace as a health risk. As the employer, the supermarket must comply with the requirements of the regulations. There is no requirement that the hazard to health has to be foreseeable.
The burden of proving compliance with the regulations falls on the employer (once injury has been proved) and the absence of a foreseeable risk is no defence under COSHH. As such, the supermarket should have properly controlled the ‘substance', provided information and training to my client, and provided him with adequate PPE.
In cases like this, the defendants have to show they have adequately controlled the exposure. In this particular claim, the risk assessment my client’s employer performed related only to the control of the vermin and failed to consider any possible risk to the health of employees. Therefore, there was not only inadequate control, but more importantly, there was very limited PPE and no information or training whatsoever.
The defendant’s response was that as far as they were concerned, my client’s working environment is not one where employees are exposed to the risk of contracting Weil’s disease. In short, their main point is they believe the disease is so uncommon that it is not something they needed to risk-assess or protect against. My view is this defence is flawed. The assertion that a risk is so low does not mean employers do not need to take precautions against it.
The defendants also say my client could quite reasonably have contracted Weil’s disease by handling his own dustbins, walking over or near farmland, rivers, lakes, canals or by dealing with his own drains.
What is important in this particular case is the breach of Regulation 12 – the mandatory obligation to provide information, instruction, and training.
My client received no such training and was oblivious to the existence of Weil’s disease. His first symptoms were flu-like symptoms which gradually deteriorated to kidney failure, jaundice and loss of liver function. Had he been informed and/or trained, he would have been able to seek medical treatment sooner and alert medical professionals of his potential exposure to the disease.
His training should have covered the importance of covering any open wounds and applying antiseptic treatment immediately to prevent any development of the disease. The medical evidence we have obtained from a Professor of Hepatology confirms that all minor wounds should be covered as the disease can be contracted through even the smallest of cuts. It also specifically confirmed that had my client been treated earlier, he could have avoided kidney and liver failure, which is entirely relevant to Regulation 12.
The expert also confirms that absorbent gloves would actually harbour the bacteria for some time. The Department of Health recommends adequate protective clothing should be provided for any occupation which could potentially involve contact with rodents. Adequate protective measures would include waterproof gloves, boots and goggles as well as immediate cleaning and dressing of any wounds suffered.
Turning to Causation, my client only has to satisfy the Court on the balance of probabilities that he contracted the disease via contact with rat urine during the course of his employment.
His employer raises the point that the disease is rare and suggests that he could have contracted it quite easily elsewhere. Here, the rareness of the disease plays into his hands. We are all exposed to bins and drains at home and there are many hobbies where people are exposed to stagnant water, yet incidents of the disease remain small.
My client will give evidence that he does not take part in any hobbies where he might be exposed to stagnant water and he confirms that he hasn’t been near any rivers, lakes or canals. As his video footage so graphically attests, rat urine is the most likely cause of his disease and as such, causation will be satisfied.
My client is at risk of future kidney disease and the fact that he has contracted Weil’s disease means his life expectancy could be affected. This is a valuable claim. In summary, his employers failed to properly risk-assess and manage the threat posed by rat urine, and the COSHH regulations have clearly been breached.
I should also point out the cause of action was pre-October 2013 and so the Enterprise Act will not apply.
Tracey Benson is an Associate Personal Injury Solicitor at Slater and Gordon Lawyers in London.
Slater and Gordon Lawyers offer a free consultation for people injured in workplace accidents through no fault of their own. Call us 24/7 on freephone 0800 916 9046 or contact us online and we will call you.
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