Civil liability for negligence is discussed generally on the Personal injury page, the present page focuses on the OH practitioner’s personal liability for this towards workers, job applicants and other individuals.
- The level of duty required is to take reasonable care, the care of the average OH. The duty may sometimes lead to Tensions with the employer.
- For civil (as opposed to criminal) liability there must normally be some damage. Courts tend to be more willing to find liability for physical (including psychiatric) damage than for economic loss.
- As regards to whom the OH practitioner is liable, there are tests of proximity and whether it is just and reasonable to impose a duty of care.
- In the case of job applicants, the Kapfunde case held there to be no liability for economic loss (failing to get the job) on the part of an OH doctor reviewing pre-employment questionnaires, at least where he did not see the individual.
- As well as civil liability for negligence discussed on this page, there are other possible liabilities of the OH practitioner, including under the Equality Act – see separate page OH practitioner liability under EqA.
Doctors and nurses owe a duty of care to those within the foreseeable area of risk. This is a duty to take reasonable care, the care of the average OH professional. The courts determine what an average member of the profession should have done by relying on expert witnesses. In most cases today only one expert will be allowed to give evidence if the case goes to court; the court will direct that a joint expert be appointed.
This test, known as the Bolam test after the case in which it was originally established, was refined by the House of Lords in Bolitho v City and Hackney HA (1998). The standard of care is that of a ‘responsible, reasonable and respectable practitioner’.
Stokes v Guest Keen Nettlefold  I WLR 1776
A toolsetter died of scrotal cancer. In the course of his employment the front of his overalls was regularly soaked with carcinogenic oil. This was before COSHH, but in 1960 the Factory Inspectorate had advised employers to warn and monitor those who worked with the oil. The widow sued the company, and the court upheld her claim. The OH physician (who was an employee of the company) was negligent and the company was vicariously liable. He knew of the risk, but failed to warn or undertake health surveillance. He had talked about risk in a meeting (which Stokes did not attend), but mention of scrotal cancer had been omitted from minutes which were circulated generally, because they were also read by women.
Note: the OH physician would presumably have been personally liable as well as the employer, if the widow had chosen to sue him directly.
Brown v Rolls-Royce  1 All ER 577
The OH physician advised the employer that it was not necessary to provide barrier cream for a particular process, because its efficacy had not been demonstrated. There was a difference of opinion in the profession. Brown contracted dermatitis. It was held that there was no negligence because it had not been proved that barrier cream was an effective precaution.
Where the OH practitioner engages in clinical practice – for example in deciding whether to prescribe post-exposure prophylaxis to a health care worker following a potential exposure to a bloodborne virus, or whether to offer influenza or travel vaccination – the approach to informed consent in Montgomery v Lanarkshire Health Board will apply: see Consent>Informed consent. Accordingly the patient should be given the information a reasonable patient would be likely to consider significant, or which the practitioner is or should reasonably be aware the particular patient would be likely to consider significant.
The OH practitioner might advise an employer that certain steps are required but the employer fails to take action. The employer could then itself be liable for negligence if damage results. However, there is also potential liability of an OH practitioner for failure to warn workers, and there may be ethical duties to warn. This can put practitioners in a quandary if an employer does not want him to ‘rock the boat’. Whistleblowing legislation may help if the OH practitioner is an employee or ‘worker’ – but not otherwise where the practitioner is concerned about losing their contract. (See also below Duty to third parties, such as employees of contractors or members of the public?)
An important difference between civil and criminal law is that in civil law the ‘perpetrator’ is only liable if there has been damage. Someone can face criminal prosecution under the HSW Act for an unsafe machine, but under civil law the claimant must normally show damage.
It may be physical damage to the claimant’s person or to property. As regards the claimant’s person, that can include psychiatric damage. Alternatively it may be economic damage, eg the claimant getting the sack because OH was negligent. The courts are more willing to compensate for damage flowing from physical harm than for ‘pure economic loss’, unless there is a close relationship between the parties, usually a contract. This leads on to the question:
The leading case on whether someone owes a duty of care in negligence to a particular claimant is:
Caparo v Dickman, House of Lords, 1990 www.bailii.org/uk/cases/UKHL/1990/2.html
Caparo Industries plc had made a takeover bid for Fidelity plc on the basis of the accounts sent to them as shareholders. On completion of the takeover it was found the financial position was worse than stated. Caparo’s claim against the auditors failed. In the absence of a contract, the auditors were held not to have a duty of care to Caparo in the circumstances. For a duty of care to arise in a novel situation, (1) the damage or loss must be foreseeable, (2) the relationship between wrongdoer and victim must be sufficiently close (proximity), and (3) it must be just and reasonable to impose a duty of care.
The three-part test in Caparo is not the only one applied by the courts – another for example is whether the defendant has ‘assumed’ liability. However, Caparo is the test which figures most commonly.
An OH practitioner may be personally liable for failing to protect existing employees against risks to physical or mental health while at work, in the part of the workplace over which he has jurisdiction, as in the Stokes and Brown cases above. Bear in mind though that this is just a duty to take the care an average professional would in the circumstances: see above Level of duty.
The OH practitioner’s duty may well also extend to other people on the site, such as contractors, or perhaps for example patients if the workplace is a hospital. See below Duty to third parties, such as employees of contractors or members of the public?
The practitioner also has a particular duty of care towards a worker who approaches him for advice or assistance, eg. as regards not making a negligent diagnosis.
What about reports to the employer on the employee’s health – for example if the OH practitioner negligently reports that the employee is not fit for work? In Spring v Guardian Assurance (1993) the House of Lords held that an employer could be liable for negligently giving an incorrect reference about an employee to another employer. This implies that the OH practitioner may be liable to the individual for the content of reports to the employer. However, as discussed below, in Kapfunde this was held not to apply to an OH practitioner reviewing pre-employment questionnaires, at least where the practitioner had not seen the job applicant.
The OH practitioner obviously also has a duty to the employer. However, quite apart from the practitioner’s duties towards the employer in tort, there will nearly always be a contract with the employer giving rise to contractual obligations.
The Kapfunde case held that an OH practitioner had no duty to a job applicant for economic loss, ie. for the applicant’s failure to get the job, at least where the practitioner had not seen the job applicant. However, an OH practitioner may owe a duty to a job applicant in respect of physical harm.
As regards not being liable for economic loss, the earlier case of Baker v Kaye  IRLR 219 considered that a doctor could be liable for damages if he examined a job applicant for an employer and negligently pronounced him unfit for work. (The doctor was held not negligent though, and so not liable in that case). The applicant had unconditionally resigned from his previous post and was claiming damages for loss of the new post.
However, in the subsequent case of Kapfunde, the Court of Appeal held that the doctor is not liable for economic loss in this way, even if negligent:
Kapfunde v Abbey National & Daniel, Court of Appeal, 1998 www.bailii.org/ew/cases/EWCA/Civ/1998/535.html
A job applicant revealed in her health questionnaire that she had sickle cell anaemia, which had in the past led to her being absent from work. Dr Daniel, a GP providing medical services including pre-employment assessment, reported that she was likely to have higher than average absence. The company rejected her for the job. The court held Dr Daniel did not have a duty of care to the job applicant, only to the employer. (Even if there had been a duty, the GP was also held not to have been negligent. Also it was held Abbey National would not be liable anyway because the GP was not an employee, so there was no vicarious liability.)
This case was before the Disability Discrimination Act. Now both the company and OH practitioner may have liabilities under the Equality Act (see OH practitioner liability under EqA).
The Court of Appeal in Kapfunde drew an analogy with the House of Lords decision in X (Minors) v Bedfordshire CC which has now been superseded by the East Berks decision (see next heading), so its authority is somewhat weakened. There again, unlike those decisions Kapfunde related only to economic loss.
What about physical harm, if OH fails to warn of a health risk and of the need to consult the person’s GP? Firstly, whatever the legal position, a doctor is likely to feel under a moral obligation to inform the person of the risk.
As regards the legal position, there is no clear case authority but it is very possible that OH practitioners owe a duty of care as regards physical harm. There are cases in the United States where OH doctors have been held liable to the individual for failing to diagnose medical conditions, both in annual health checks and in pre-employment examinations. In Britain:
JD v East Berks Community Health, House of Lords, 2003 www.bailii.org/uk/cases/UKHL/2005/23.html
A doctor examining a child at the request of a local authority in a case of suspected child abuse owes a duty to the child (though not the parents), even though employed by and reporting to the local authority.
That House of Lords decision in East Berks has weakened the authority of a comment previously made by the House of Lords as regards a doctor instructed by an insurance company to examine an applicant for life insurance. The House of Lords commented ‘The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant’. That was in the case of X (Minors) v Bedfordshire CC 1995 www.bailii.org/uk/cases/UKHL/1995/9.html , where psychiatrists instructed by a local authority to examine children in cases of suspected child abuse were held not to have a duty of care to the child or parent. However, that decision has been partly superseded by the East Berks case above which held there was a duty to the child.
The issue is only addressed to a limited extent in the English case of R v Croydon Health Authority, which suggests that so far as there is a duty (which the Court of Appeal did not consider) the courts may limit the loss for which the applicant can claim from the doctor, because of the employment context of the examination:
R v Croydon Health Authority, Court of Appeal  P.I.Q.R. Q26
A radiologist who was negligent in reading a pre-employment X-ray was held liable to pay damages to a job applicant in respect of physical harm. He had failed to report to the OH physician evidence of pulmonary hypertension disclosed by the X ray. This affected her fitness to work (she would not have been given her new job had the condition been known) and also gave rise to particular risks associated with pregnancy. The claimant suffered medical problems when she later became pregnant. She argued – and the court accepted – that she would not have become pregnant had she been warned of the medical condition. The defendant admitted that it had breached a duty of care to the claimant and was liable for medical problems suffered in pregnancy.
The Court of Appeal held the defendant was not liable for other costs of the pregnancy, such as costs of bringing up the child. It said the obligations assumed by the radiologist making a pre-employment examination did not extend to the claimant’s private life. The court left open what the position would be had the admissions of liability not been made. Other damages were also awarded which were not disputed before the Court of Appeal – eg. for complications of a hysterectomy so far as they would probably not have occurred had diagnosis been earlier.
It will depend on the Caparo test above. For example an OH practitioner’s duty may well extend to other people (apart from employees) on the site, such as contractors. Another example where the OH practitioner could be liable is an OH physician in the NHS who negligently passes a surgeon as fit to perform exposure prone procedures, such that a patient is infected with Hepatitis C.
As a general rule, there is no legal liability for the deliberate wrongful act of another adult, eg. a worker who persists in drinking and driving to and from work.
Palmer v Tees Health Authority, Court of Appeal, 1999 www.bailii.org/ew/cases/EWCA/Civ/1999/1533.html
A mental patient known to be a danger to children brutalised and murdered a child. It was held that the hospital owed no duty of care to the child or her mother. The child had been a ‘random’ victim, and not identifiable.
Accordingly, an OH physician who fails to report that a driver has unstable insulin-dependent diabetes should not be liable to a pedestrian who is injured when the worker has a hypoglycaemic attack on the public road (though the employer may be vicariously liable for the driver, and the OH physician might be liable to the employer).
However, in a US case, Tarasoff v University of California (1976) a doctor knew that one of his patients had murderous intentions towards a particular young woman. She was indeed murdered and her parents sued the doctor. He was held liable for failing to warn her. It is possible that a British court would reach the same result in these circumstances, since the victim was identified.
Also, it is possible that an OH practitioner could be liable for failing to warn that someone is a risk to colleagues or, as mentioned above, perhaps to other groups such as patients.
Kent v Griffiths, Court of Appeal, 2000 www.bailii.org/ew/cases/EWCA/Civ/2000/3017.html
An ambulance service was held liable to a patient for negligently failing to attend an emergency until 40 minutes after it had accepted a 999 call. There was no good reason for the delay. The doctor who called the ambulance gave evidence that had she known of the delay she would have advised the claimant’s husband to drive her to the hospital.
In this context the ‘public interest’ defence for breaching confidentiality can be important, allowing OH practitioners sometimes to warn that there is a risk to others. See also on possible duties to disclose: Duty to disclose poor practice.
See also above Tension with employer?