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Judgment No. 4239

Decision

1. The decision of 19 February 2018 and the earlier decision of 16 October 2014 in so far as it concerns WHO’s breach of duty of care are set aside.
2. WHO shall pay the complainant 180,000 United States dollars by way of moral damages.
3. WHO shall pay the complainant 10,000 United States dollars in costs.

Summary

The complainant challenges the decision to terminate her appointment for health reasons and claims that the compensation she received for her service-incurred injury is grossly inadequate.

Judgment keywords

Keywords

complaint allowed; decision quashed; professional accident; service-incurred; duty of care

Considerations 14-15

Extract:

The Tribunal’s case law is settled on what constitutes a cause of action based on negligence. The cause of action contains several elements (see, for example, Judgment 3733, consideration 12). The first is that the organisation has failed to take reasonable steps to prevent a foreseeable risk of injury. The second is that liability in negligence is occasioned when the failure to take such steps causes an injury that was foreseeable. As noted in Judgment 3215, consideration 12, the word “injury” in this context is not used in any technical, legal or medical sense. Equally apt and often used is the word “damage”, which may be physical (including psychological), financial or, as is often the case, both. In the context of employment with an international organisation, physical damage or injury is more likely to be foundational to the claim though the damage could well be, as is alleged in this case, consequential financial damage occasioned by loss of earning capacity flowing from the physical injury.
However, another essential element of the cause of action is that the negligent act or omission caused the damage. That is to say, there must be a causal link between the conduct complained of and the damage suffered. Moreover, the person seeking damages for negligence bears the burden of establishing the factual foundation on which the claim is based (see, for example, Judgment 3215, consideration 12).

Reference(s)

ILOAT Judgment(s): 3215, 3733

Keywords

cause of action; negligence

Consideration 21

Extract:

An international organisation has a duty to adopt appropriate measures to protect the health and ensure the safety of staff (see, for example, Judgment 3689, consideration 5). An organisation has an overarching duty of care towards its staff.

Reference(s)

ILOAT Judgment(s): 3689

Keywords

duty of care

Consideration 25

Extract:

One of its staff had been injured, as it turns out seriously, in a car accident while on a mission overseas when performing work for the Organization. WHO had an ongoing responsibility to do all it could to mitigate the effects of the accident as part of a more general obligation to protect the health and ensure the safety of its staff (see Judgment 3994, consideration 8). It is true that Dr H. asked the complainant to see her on her return and she did not. But that provides no real justification for WHO effectively doing nothing by way of further mitigating the effects of the accident. The complainant is entitled to moral damages for this breach of the duty of care.

Reference(s)

ILOAT Judgment(s): 3994

Keywords

injury; moral injury; service-incurred; duty of care; mitigation of loss

Consideration 26

Extract:

[T]here is a possibility that the breach of WHO’s duty of care concerning the complainant when she returned to Geneva has led or contributed to the professional and personal circumstances in which the complainant now finds herself. An inference can readily be drawn that the complainant knows that, had she received appropriate treatment immediately on her return to Geneva, her grave present predicament, arising so early in her adult life, might not have come about and also she believes WHO should have done more to support and help her. It cannot be doubted that these matters have caused and will continue to cause the complainant considerable distress. In the special circumstances of this case, the complainant is entitled to a significant award of moral damages that the Tribunal assesses in the sum of 180,000 United States dollars.

Keywords

moral injury; duty of care; distress

Consideration 27

Extract:

The complainant [...] seeks exemplary damages. However, the conduct of WHO does not exhibit any of the characteristics which might justify the award of exemplary damages (see, for example, Judgment 3419, consideration 8).

Reference(s)

ILOAT Judgment(s): 3419

Keywords

exemplary damages

Consideration 33

Extract:

The time taken for the internal appeal was clearly lengthy. But having regard to the potentially complex factual and legal issues raised, the gravity of the subject matter and the fairly detailed consideration of the appeals undertaken by the HBA as revealed by its report, the time taken was not so long as to warrant the award of additional moral damages.

Keywords

moral injury; delay in internal procedure

Consideration 33

Extract:

The complainant says that in addition to the damages sought, the Tribunal should “recognize her future right to request compensation in the event of any deterioration of her health attributable to the service-incurred injury for any additional expenses resulting, without limitation, from any treatment, examination and in-house/nursing care”. She cites Judgment 2533, consideration 26, in which the Tribunal said “the defendant’s obligation to pay the complainant reasonable compensation for the results of his workplace injury is a continuing one”. If, and to what extent, such a claim of compensation might be justifiably made in the future and rejected is a matter of speculation though WHO’s future obligations are not, in all respects, resolved by this judgment.

Reference(s)

ILOAT Judgment(s): 2533

Keywords

injury; damages; service-incurred



 
Last updated: 22.06.2020 ^ top