Should the employer be vicariously liable for the wrongs committed by the employee? Yes. Even if the wrong is criminal, a limit on vicarious liability would have to be explicitly stated in the statute. Evidence from: Majrowski v Guy’s and St Thomas’ Trust [2006] UKHL 34 Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is acting in the course of his employment. Foreseeability is not an issue. It is no defence that the employer had taken all reasonable measures to prevent the wrong. The principle is implied in all statutes unless the statute specifically limits it. Further detail: 6#5-6 41

There is limited evidence to support the theory that mismatch between work demands and functional capacity would increase the risk of a pain problem. The evidence is highly inconsistent but the theory cannot be discounted altogether. Evidence from: HH Hamberg van Reenen et al. Scand. J. Work and Environ. Health. (2006) Vol. 32#3 p 190 – 197 “Is an imbalance between physical capacity and exposure to work-related physical factors associated with low-back, neck or shoulder pain?” Further detail: 6#5-6 40

Regulations provide very clear guidance as to the types of interventions required to protect workers from injury or adverse symptoms caused through the use of display screen equipment. This review examines all the literature related to assessing the benefits of these and other interventions. No clear benefits could be found for any interventions, save for a possibility that alternative pointing devices could be beneficial. The accuracy of the DSE regulations could be called into question. Evidence from: S Brewer et al. J Occup Rehabil. (2006) Vol. 16 p 325 – 358 “Workplace interventions to prevent musculoskeletal and visual symptoms and disorders among computer users: A systematic review” The most positive finding here was possibly that DSE style interventions had not been shown to do harm. Further detail: 6#5-6 39

A review of research into work hours and postures while using a computer keyboard. The review finds that hours and posture are associated with adverse upper limb symptoms often enough to consider that an association is meaningful. Symptoms are not the same as injuries. Evidence from: F Gerr et al. J Occup. Rehab. (2006) Vol.16 p 265 – 277 “Keyboard use and musculoskeletal outcomes among computer users” The authors conclude that exposure measurement is a key weakness of studies of proposed links between keyboard use and upper limb symptoms. As it stands there is a slight balance in favour of a conclusion that longer hours of use increase the rate of adverse hand/arm symptoms. Further detail: 6#5-6 38

The department of health provides for the formation of multidisciplinary teams to manage musculoskeletal disorders. Coordination of rehabilitative efforts seems to have been left to chance; leaving an opportunity for private case managers to exploit. Evidence from: Department of Health June 2006 “The Musculoskeletal Services Framework” The Framework identifies a lack of organised provision of rehabilitation services and interventions. This provides an opportunity for the private sector to step in. Where the disorder is work-related this could involve a liability insurer. Further detail. 6#5-6 37

The claimant succeeded in demonstrating a relevant breach of duty. The causal relevance of breach of the Display Screen Equipment Regulations is bolstered by this judgement. Scientific support for this judgement is far from clear. Evidence from: Denton Hall Legal Services v Kathryn H Fifield [2006] EWCA Civ 169 Perhaps the regulator intended that the courts assume a causal link whenever there is evidence of a breach of duty? Further detail: 6#5-6 36

The bulletin draws on a variety of information sources to quantify the rates of occupational disease in the UK. None can be considered accurate and some are very inaccurate or misleading. Evidence from: HSE 31st Aug 2006. “Occupational Health Statistics Bulletin 2005/06” Considerable judgement is needed in converting these official statistics in liability exposure estimates. Further detail: 6#5-6 35

Evidence from: HSC Paper MISC/06/23 “Update on the SFAIRP infraction case and next steps” In practice, no EC member state actually applies the standard stated in Article 5(1); it is an unattainable ideal which leads, in practice, to SFAIRP type decisions at every point in the EC. The UK is among a very few jurisdictions which explicitly states how the ideal is approached in practice. Further detail: 6#5-6 34

One conference presentation was selected for reporting here. It clearly states the limited knowledge base available for the accurate regulation of vibration exposure. There is little doubt that vibration exposure can be harmful. However, in our view, current Regulation of exposure must have been developed on the basis of something other than just objective scientific evidence. Such Regulation may be of questionable relevance to proof of negligence and causation in civil cases. Evidence from: NIOSH publication No. 2006-140 “Proceedings of the First American Conference on Human Vibration” We do not know whether there is any disorder specific to whole-body vibration, or what disorders are aggravated by exposure to whole-body vibration. We do not know the relative importance of vibration and other risk factors in the development of back disorders. Further detail: 6#5-6 33

Sleep disturbance is known to affect safety performance in drivers. Some forms of sleep disturbance are innate and should lead to reassessment of suitability to hold a commercial vehicle license. Evidence from: CHEST (2006) Vol. 130 p 902 – 905 “Sleep Apnoea and Commercial Motor Vehicle Operators” Well managed obstructive sleep apnoea should not be a bar to holding a license. The guidance provides an incentive to drivers to engage with medical help (which has been shown to be very effective in these cases) and demonstrate compliance with prescription. Further detail: 6#5-6 32

The EC scientific committee once again find that there is next to no evidence of adverse health effects of exposure to electromagnetic fields. Evidence from: EC Scientific Committee on Emerging and Newly Identified Risks 19th July 2006 “Preliminary opinion on possible effects of electromagnetic fields (EMF) on human health.” Further detail: 6#5-6 31

The review finds evidence for an increased incidence of breast cancer among women who work the night shift for several decades. There is no reason to conclude that the association is causal. Evidence from: Health Council of the Netherlands Report No. 2006/15E, June 29, 2006 “Night work and breast cancer: a causal relationship?” In the Committee’s opinion, the research findings do not, at present, justify recommending special measures for women who perform night work for prolonged periods in addition to the current breast cancer screening programme. If new, scientifically sound research findings were to produce evidence of a causal relationship then one could consider what specific measures need to be taken. Further detail: 6#5-6 30

The study finds evidence of a weak link between shift work and increased risk of circulatory disease. Evidence from: F Tuchsen et al. Occ. Env. Med. (2006) Vol.63 p 451 – 455 “A 12 year prospective study of circulatory disease among Danish shift workers” The risk of incident circulatory disease was related to shift work even after all other variables had been corrected for. RR = 1.3 (95% CI = 1.1 to 1.6). The attributable fraction of circulatory disease in the whole population was estimated to be 5% (i.e. nationally, among workers, 5% of circulatory disease was attributable to shift working). Further detail: 6#5-6 29

The study finds evidence in support of an association between rotating shift work and death due to ischaemic heart disease. There was no association with cerebrovascular disease. Evidence from: Y Fujino et al. Am. J. Epidemiol. (2006) Vol. 164 p 128 – 135 “A Prospective Cohort Study of Shift Work and Risk of Ischemic Heart Disease in Japanese Male Workers” Compared with the day workers, the rotating-shift workers had a significantly higher risk of death due to ischemic heart disease (RR = 2.32, 95% (CI) = 1.37, 3.95) whereas fixed-night work was not associated with ischemic heart disease (RR = 1.23, 95% CI = 0.49, 3.10). Further detail: 6#5-6 28

A study of self reported fatigue among nurses’ aides in Norway. Shift work was one of the variables assessed but the main focus was on psychosocial influences. Shift work was not identified as a significant predictor of persistent fatigue. Evidence from: W Eriksen. Occ. Env. Med. (2006) Vol.63 p 428 – 434 “Work factors as predictors of persistent fatigue: a prospective study of nurses’ aides” Supervisors can help manage fatigue by varying work demands. Help with managing persistent health problems, encouraging physical fitness and cessation of smoking would seem to be legitimate roles for the employer and had the strongest predictive power in this research. Further detail: 6#5-6 27

There are no absolute measures to predict fatigue. The fatigue index allows planners to compare the likely effect on fatigue of different shift work regimes. Evidence from: HSE RR 446 “The development of a fatigue / risk index for shift workers” Further detail: 6#5-6 26

The study adds weight to the view that exposure to environmental tobacco smoke could be associated with an increased risk of early, spontaneous abortion. Evidence from: L George et al. Epidemiology (2006) Vol.17 p 500 – 505 “Environmental Tobacco Smoke and Risk of Spontaneous Abortion” Abortion is an indivisible outcome. The relative risk of spontaneous abortion was increased for women exposed to ETS; OR = 1.7 (95% CI = 1.2 to 2.4) and for women who smoked; OR = 2.1 (95% CI = 1.4 to 3.3). Further detail: 6#5-6 25

This reasonably high quality study found evidence that exposure to environmental tobacco smoke was associated with a small increase in risk of glucose intolerance [a pre-diagnostic indicator of diabetes] within a 15 year timescale. Evidence from: TK Houston et al. BMJ (2006) Vol. 332 p 1064 – 1069 “Active and passive smoking and development of glucose intolerance among young adults in a prospective cohort: CARDIA study” For risk assessment purposes it would be helpful to know how many people have no other predispising vulnerability to developing diabetes. Further detail: 6#5-6 24

The report clearly asserts that lung cancer, heart disease and sudden infant death syndrome are causally related to exposure to environmental tobacco smoke. Asthma is not caused by exposure but there is limited evidence that frequency and intensity can be increased by it. Evidence from: United States Department of Health and Human Services. June 2006 “The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General.” For heart disease and for lung cancer the independent additional risk from ETS exposure is of the order of 25%. Those who regard exposure to risk being equivalent to material contribution would probably regard this as compensable but, so far, legal precedent in the UK would tend to exclude this as a cause of action in its own right. Further detail: 6#5-6 23

Evidence from: V Parry Times 21st October 2006 “Food fight on a tiny scale” Article prepared in advance of a major conference on the use of nanotechnology in the food industry. Reported developments include: o Nano filters for removing viruses and bacteria from liquid foods such as milk. o Nano sensors to indicate the condition of food o Nano labelling to ensure traceability o Nano coatings to reduce the effect of ultra violet spoilage o Nano particle containers to enhance vitamin content. o Nano emulsifiers to increase the miscibility between oil and water; reduces fat content. Comment Developers have not yet been making the results of toxicological research available in the scientific literature. For packaging the key issue is migration into food. For direct inclusion, the issues are redistribution in the host, biodegradability, toxicity to specific tissues, accumulation, synergy with other agents etc.

Questions are raised about the design of tests on which the novel ice-structuring protein was judged to be safe for human consumption in ice cream. No specific toxicity information is presented. Evidence from: Advisory Committee on Novel Foods and Processes ACNFP/78/2 “ICE STRUCTURING PROTEIN PREPARATION – Additional information” The report serves as a reminder that traditional testing standards may not pick up risks from novel food ingredients. Those ingredients could be harmful. Further detail: 6#5-6 21

The committee has a duty to assess, and where appropriate, approve new techniques of food preparation. Enzymes, ultraviolet and infra red irradiation techniques have been identified as being in need of review and action. Official briefings on these are available from the ACNFP secretariat. Evidence from: Advisory Committee on Novel Foods and Processes ACNFP/77/2 “Review of Novel Processing Techniques” Foods could be made harmful, e.g. by inclusion of novel enzymes, or not as sterile as expected. Further detail: 6#5-6 20

Pesticides are commonly found at detectable levels in all kinds of foods. The official report finds that in a small proportion of samples, levels exceed guideline values. Evidence from: Annual Report of the PESTICIDE RESIDUES COMMITTEE 2005 Directive 91/414/EEC governs the authorisation of pesticide products. Levels above the MRL were typically in excess by two or three times. Very little of this could be attributed to contamination during handling, the main reason for excessive contamination was not following the appropriate guidelines during the growing phase. Commercial liabilities would be affected. Further detail: 6#5-6 19

The mechanism of the protective effect of alcohol consumption in men and women appears to depend on gender in the 50 – 65 age group. Risk modelling that fails to recognise this effect could be significantly inaccurate; leading to false, gender specific, associations between hazard and heart disease. Evidence from: J Tolstrup et al. BMJ (2006) Vol.332 p 1244-1248 “Prospective study of alcohol drinking patterns and coronary heart disease in women and men” In terms of risk modelling, this paper shows that there are no simple ways of characterising the balance between adverse and beneficial effects of alcohol consumption. Further detail: 6#5-6 18