Latex allergy Nurse - Case Settled

The case of a nurse who had to abandon her career because of an allergy to latex has finally been settled.

Alison Dugmore was working for Swansea NHS Trust at Singleton Hospital when she developed an allergy to latex protein as a result of wearing powdered latex gloves in the course of her work. In June 1996 she suffered such a serious attack that she required treatment in the Accident and Emergency Department and was off work for 3 days. When she returned to work, she was provided with vinyl gloves.

In January 1997, Ms Dugmore went to work at Morriston Hospital, Swansea, where she was also supplied with vinyl gloves. Her sensitivity to latex was so great, however, that she suffered an anaphylactic attack after handling an empty box which had contained latex gloves. As a result, she was no longer able to continue working as a nurse.

Ms Dugmore brought a claim against both hospitals for negligence and for breach of the Control of Substances Hazardous to Health (CoSHH) Regulations 1988 and 1994. Regulation 7(1) states that ‘every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.’

Cardiff County Court dismissed the negligence claim against Singleton Hospital on the basis that Ms Dugmore’s hypersensitivity to latex had developed before her employers could have reasonably been expected to be aware of the risk. The Court also held that her employers were not in breach of regulation 7(1) of CoSHH as it was not practicable to prevent all exposure to latex in the hospital and her employers had adequately controlled the problem by providing her with vinyl gloves. The claim against Morriston hospital was also dismissed. The judge concluded that Ms Dugmore was so eager to continue nursing that even if the problem had been better recognised, the likelihood was that she would still have been working at the hospital at the time of the attack which caused her to give up her career.

In November 2002, the case went to the Court of Appeal.

The Court ruled that the negligence claims in respect of both hospitals were correctly dismissed. An employer is not under a common law duty to sack an employee who has a particular sensitivity if he or she wishes to take the risk of carrying on working in what for other employees is a reasonably safe environment.

However, the Court held that the judgement of the County Court regarding regulation 7(1) of CoSHH was in error. The regulation imposes an absolute duty on an employer to ensure that exposure of employees to substances hazardous to health is either prevented or controlled. The primary duty under CoSHH is to prevent exposure altogether, unless this is not reasonably practicable. The defence of reasonable practicability qualifies only the duty of total prevention. Where prevention is not reasonably practicable, the secondary duty is ‘adequately’ to control the exposure. In terms of the regulation, even though it was not practicable to remove all latex from the hospital, it would have been easy enough for Singleton Hospital to have provided vinyl gloves before Ms Dugmore became sensitised to latex protein. The hospital’s failure to do so was in breach of regulation 7(1). The appeal against Morriston hospital was dismissed as the damage to Ms Dugmore flowed from the sensitisation to latex for which her earlier employer was responsible.

Ms Dugmore was awarded £240,000 plus a further £114,000 as a punishment to Swansea NHS Trust for not settling the case when they had the opportunity. The Trust appealed against the decision to award punitive damages but the two parties are reported to have settled at a figure of £93,000.