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Casualty

From stress in the workplace to a carbon neutral economy, we offer our international experts’ predictions on the opportunities and challenges that the casualty market may face in the coming year and beyond.

Casualty predictions
#1 The Human Rights Act will become the new battleground

Last year we predicted rising claims due to vulnerable children not being visible to schools and social services. In March 2021 referrals were down 11%. Claims against social services have concentrated on alleging negligence for failing to remove the children. Over the past 12 months the courts have clarified the circumstances when a duty of care may arise. Those decisions favour defendants so it is now well established that there is no duty of care owed in relation to child protection functions generally. This represents an almost complete change of UK law over the past few years. As a result, we predict that claims for assumption of responsibility will reduce. Claims will concentrate on trying to show that actions by social services staff made a situation worse but the factual situation needed to succeed is relatively rare. We also predict that the Human Rights Act will become the new battleground and focus for claimants. Courts will be asked to decide on thresholds and what amounts to a breach of Article 3 (inhuman and degrading treatment) and Article 8 (right to family life). The bar is high however, and the appetite of the courts is uncertain as is their attitude to limitation.

#2 Unmasking the risk of discrimination claims

Changing government guidance will result in more discrimination claims. While the wearing of face coverings in indoor settings was no longer a mandatory requirement in England following the lifting of COVID-19 restrictions in July 2021, the UK Government re-introduced the requirement on 30 November 2021 in the wake of a new variant of COVID-19. The use of face coverings is still mandatory in certain settings in Scotland, Wales and Northern Ireland as well. The confusion around allowing access to services to those who are unable to wear a mask due to a medical exemption and those who simply refuse to wear a mask has led to many claims for disability discrimination being made over the last 12 months. As this measure has been reintroduced in England, we predict more discrimination claims will be made as businesses struggle to implement ever changing government guidance on this issue.

#3 Health care sector must protect workers from violence

The HSE will target the healthcare sector’s arrangements for dealing with violence and aggression and manual handling. This sector continues to suffer injuries and ill heath due to the manual handling of patients and increased incidents of violence and aggression towards healthcare staff. The inspections will focus on the management arrangements for training, supervision, monitoring and review of the risks, together with providing and using manual handling equipment. This could lead to increased enforcement action and prosecutions resulting in significant fines for offending organisations.

#4 Regulators will demand more vigilance on cyber security threats

The HSE will be raising operators’ focus on cyber security to ensure appropriate protection against major accidents especially within the UK’s major hazard industries. The HSE will be looking for greater integration of IT and industrial control systems and requiring greater precautions against cyber attacks on systems delivering major accident controls. The HSE will be undertaking a programme of inspections at targeted major hazard sites to assess risks that may impact industrial control systems.

#5 Greater focus on whole body vibration

According to the British Occupational Hygiene Society, health studies show that whole body vibration (WBV) is associated with back pain, cardiovascular disease, digestive problems, headaches, dizziness, motion sickness and possibly cancer. WBV is commonly transmitted through the seats or feet of vehicle drivers and to users of some heavy pneumatic tools. Although it is difficult to prove that such health problems are caused by WBV in the workplace, given that employers have a duty to control it under the Control of Vibration at Work Regulations 2005, it is an area that we anticipate will receive greater attention from the HSE over the next few years, especially for vehicle operators.

#6 The rise of stress in the workplace claims

The HSE will be increasing its attention on how employers manage stress in the workplace. We predict that it will take a more pro-active role in undertaking spot checks of employers to assess whether they have adequate policies in place. In particular, the HSE will look at how organisations have adapted their policies in light of the demands placed on employees following changes to their work and working environment as a result of the global pandemic, including both those who have returned to the office and those now working permanently from home.

#7 The HSE will focus on a safe transition to a carbon neutral economy

As part of Build Back Greener, the HSE will be supporting the delivery of the Government’s 10-point plan for a green industrial revolution and a safe transition to a carbon neutral economy. The HSE will also be working with the Government and other stakeholders on new and emerging technologies in the workplace to reduce risk from activities such as 3D printing, systems involving artificial intelligence and the use of drones. In 2022 the HSE will focus on a review of its regulatory framework as it applies to current and future net zero activity – identifying the policy, regulatory, operational and evidential steps needed to support the innovation and development of new technology during the transition to net zero.

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