[Please note: this article does not constitute financial, medical or legal advice, all information here is for informational purposes only and must not be relied on in the treatment of, or securing compensation for industrial diseases. The use of the resources and materials here is entirely at your own risk.]
During construction works workers are often required to remove existing material in order for the placement of new construction technology to facilitate the proposed design, this is particularly common place in domestic projects where incidentally there is also a party wall.
In larger party wall projects, there is a significant amount of “breaking out”. London, in particular, has been built on again and again and represents many layers of construction over existing, fascinating as this may seem it does mean that time and time again construction will be revisited for the purposes of development and creating more space as demand in the UK’s capital increases year on year. With this said we will quickly if not already encounter situations where older basements with reinforced ferro-concretes will require breaking out.
HAVS is a condition caused by the operation of various forms of vibratory power tools. It is a severely painful and disabling condition for the affected individual.
HAVS is commonly seen as a contributory factor to the causation of secondary “Raynaud’s disease/syndrome” and is commonly associated with CTS or carpal tunnel syndrome which for your information the treatment of which in common medical practice relies on intensive invasive surgery associated with somewhere in the region of a 70% failure rate.
The HSE in its “advice for workers” highlights several causes of risk in terms of the tools used.
The HSE also issue a pocket card for employees which suggests rubbing your hands during break times and telling your employer to use a lower vibration tool. The practical implications of such advice are confusing but nonetheless it may assist in reference.
The amount of equipment this is relevant to is perhaps as large as industry and the tool manufacturing industry that supports it. The key items of equipment presenting risk in this context that are used in construction during party wall relevant works namely:
- Breakers / Kangas and Jackhammers.
- Disc Cutters and Angle Grinders.
- Hammer Drills / Rotary percussive equipment.
- Scabblers and Needle Guns.
- Impact Drivers, particularly high torque wrenches.
The amount of technical literature surrounding use of general day to day pieces of equipment is relatively scarce and an inordinate amount of practically useless information surrounds the topic of HAVS on the internet.
UK law in force regarding this area:
Control of Vibration at Work Regulations 2005 [CVW]
Health and Safety at Work Act 1974 [HSWA]
Health and Safety Offences Act 2008
The Management of Health and Safety Regulations 1999
The Provision and Use of Work Equipment Regulations 1998
Principally HSWA incorporates the CVW’s exposure limit values and action values ascertained by “monitoring” items of equipment such as to establish a metric that in practice is hard if not impossible to quantify.
HSWA s 2 does this by imposing duties on employers to develop systems of work and supervision and training provided to employees not workers.
HSWA s 3 (1) then imposes duties on employers or self-employed persons on undertakings for those persons not being his employees who may be affected in the way it conducts its undertaking, on a loose interpretation this section could be said to cover for workers safety particularly where workers are deployed through agency [which in turn uses umbrella employers] as independent contractors, the takings of the Employer in this sense are fractional, though one may struggle to realise the commission the initial agency makes on the deal. These employers are criticised for their ability to “knock” workers (withhold) pay and then “phoenix” whereby they literally go insolvent voiding all wages on the books through insolvency. It is important to note this is a common and inevitable trap for the construction worker in the United Kingdom.
In combating the compensation culture and the health and safety monster the Enterprise and Regulatory Reform Act 2013 removed strict liability from s 47 HSWA and other subordinate regulation. This necessitated that for a cause of action to accrue, an action for compensation and civil liability must be directly read from the regulation. This was in an attempt to remove the effect of employers being held liable even where they had done “everything” practicable to avoid the incident complained of under statutory breach.
In this particular instance for this disease there is therefore no literal statutory or regulatory protection for the employee or worker. The employee or worker or their legal representative must rely on the common law duty of care, this places the evidential burden on the employee or worker where misrepresentation against them may well prevail due to the absence of witnesses available or even willing to come forward.
It remains relatively unreported whether the symptoms of HAVS manifest within the 3 year limitation period classified for personal injuries, though one may imagine or even hope that through tort, contract or even, dare we say it, crime, a health and safety offence via s 33 HSWA could easily be established during this time and thereafter. Though in reality the prosecuting authority, i.e. the HSE, is unlikely to intervene and any claimant will be left pursue their own case under their own steam, which will be difficult if not impossible if lawyers don’t intervene. The scarcity of published record in context of HAVS in the London courts is an interesting observation, perhaps this could be seen a positive aspect of the Enterprise and Regulatory Reform Act 2013, since the means of redress will possibly now only be through the courts and this should in theory eliminate the negative side of the compensation culture that the Act had intended to do. Unfortunately for the affected individual this is likely to stall any compensation and create further risk during day-to-day life.
Nevertheless the CVW, s 4 at the time of this writing stipulates:
Hand Arm Vibration
daily exposure limit value is 5 m/s2 A(8)
daily exposure action value is 2.5 m/2 A(8)
Whole Body Vibration
daily exposure limit value is 1.15 m/s2
daily exposure action value is 0.5 m/s2
The regulation sounds as if an action can accrue on the daily exposure action value, yet there is no common practice of employees and workers logging their time or even the make and model of the equipment used, timesheets are used but there is no current convention on setting out time spent “on the tools” making claims with an evidential burden difficult. Further, due to the nature of construction work, workers may be moved from site to site with varying levels of actionable vibration deliberately making liability hard to distinguish, this combined with a high level of contentious work makes for sometimes abhorrent and appalling working conditions. In 2002 a ruling in the then House of Lords in terms of divisible contributions in context of Asbestos related disease arose, later litigation was recorded in the decision of the Supreme Court in 2011.
Generally speaking, the common law references awarded damages in cases where excessive and prolonged periods of exposure to the causal elements of industrial disease have been encountered, where pain and suffering has become so harrowing as to warrant litigation. That said Employer-Employee personal injury litigation other than that related to asbestos and mesothelioma is definitively lacking in published record post 2013 and is unlikely to be reported save for where the end results have ended in manslaughter. This combined with the state of legal aid and cherry picking exhibited by claims management companies and law firms puts any would be claimants at a significant disadvantage.
CVW provides the formulae for the measurement of vibration through Schedule 1 and 2:
So to work through an example here is schedule 1 of the CVW:
A(8) [daily exposure to vibration]:
ahv is the vibration magnitude, in metres per second squared (m/s2)
T is the duration of exposure to the vibration magnitude
T0 is the reference duration of 8 hours
Vibration magnitude is acquired through another formula the units of which would no doubt require nothing less than a sophisticated testing laboratory to verify.
Manufacturers do; however, in some cases tell us this figure. So for a Hilti TE 1000-AVR, a top of the line breaker for all purpose demolition work:
There is a “triaxial vibration for chiselling in concrete of 5.0 m/s2”
If we actually have a recording of the duration of exposure for say 2.5hours between the hours of 10:30am and 13:00pm on a breaker actually operating the tool for an average of 60-75% of that time:
I don’t have tertiary qualifications in mathematics; however,
1.5/8 = 0.1875
0.433 x 5 = 2.165
The figure obtained from this calculation is very close to the action value stipulated by CVW and represents an actual time on the tools (remember we placed a limiter of 60-75%), working over this would likely breach the regulations action value.
In conclusion it is likely that the regulations are silent on HAVS.
Problems with HAVS are likely to manifest as an increased level of accidents due to operatives being unable to grip onto the excessively heavy objects they are required to move during construction operations. It does make one wonder why the reluctance of the legal system and the construction industries attitude to enforcing regulations is so prevalent.
Personally I haven’t had any legal advice or medical treatment for CTS or needle like pain felt in my main (right) hand, pain sustained from HAVS, impact fractures or not.
As a CrossFit® enthusiast I have come across the following YouTuber who proposes a relatively quick fix for this condition.
I have found that these exercises work and incorporate them during my exercise routine when in pain for HAVS/CTS like symptoms, at the time of this writing I am 30 years old.
To reappraise the “advice” offered by the HSE I would make the following recommendations to operatives:
- Ask to use a tool that has a specification from the manufacturer detailing the vibration magnitude. Keep a copy of that specification for future reference.
- Critical exposure can occur a lot faster than expected the old adage of 15minutes on, 15 minutes off for a big one is out of date. Manage your time on and off the tools, record it, have your supervisor sign it, if they refuse to do so make a note of this.
Recommendations for Contractors and Employers:
- Advise clients, designers and engineers that reinforced concrete and ferro cements will take longer to break out than they expect particularly in confined spaces.
- Accurately record exposure levels to manage risk and possible claims. Place premiums on this risk, budget effectively.