Thompsons make law in Court of Appeal | Thompsons Solicitors

We have won a claim in the Court of Appeal that could prove a template to argue difficult claims for all those injured at work.

In her judgment, Lady Justice Smith concludes:

“The test for adequacy (of training) for the purposes of health and safety is what (training) was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risk which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary....

In my view what [the employer] ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Management of Health and Safety at Work Regulations... What he ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment... Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action... It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduce”.

Before the wider implications, first, the facts of the case.

The case

The claimant (C) worked for London Underground (LU) as a tube train driver.

She developed tenosynovitis. It was accepted medical evidence that her injury was due to prolonged use of a traction brake controller (TBC) on the trains. The TBC is a cylinder shaped handle about five inches long that must be pressed at all times for the train to go forward (sometimes called the “dead man’s handle”).

When the TBC had been designed for C’s tube line , there was a known risk of a work-related upper limb disorder (WRULD) in this sort of work. That was then related to the known risks arising from the position of the seat, its armrest and the need for advice to drivers that the wrist should not be flexed to avoid WRULD.

Ergonomic advice was taken and heeded on these points when this TBC was installed.

Experienced drivers were also consulted. They suggested the addition of a grooved end to the TBC to make holding it more comfortable. This was added without expert consultation.

C thought this end was designed to have the thumb placed against it, when pressing on the handle. The defendant’s ergonomist accepted she too would have assumed that from its appearance and position.

C had a small hand and it suited her that she adopted a grip at all times with her thumb against the grooved end. It was that posture that caused her tenosynovitis.

The case was brought under Regulation 9 PUWER 1998, namely:

“9(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.”

There had been no training as to where to place the thumb when driving. Drivers’ instructions had been limited to avoiding the known risk of WRULD through flexion of their wrist.

After the injury, drivers were told to ensure they tucked their thumbs under the handle.

C submitted that:

(1) the duty under reg.9 was absolute, ie whatever was known about risks when the TBC was installed ,the training had failed to deal with an instruction that would have prevented injury, and “no fault” liability arose for that.

(2) in the alternative, if the first instance judge was right to hold that liability under reg.9 was not absolute and that the test of adequacy of training was what was adequate in all the circumstances, he had nonetheless erred in his application of that test by applying common law principles of foreseeability.

HELD in the Court of Appeal :

(1) No-fault liability was rare in English law. It existed in rare but well-known areas of law such as Provision and Use of Work Equipment as applied in Stark -v- Post Office. But it required clear words of imposition. The words "shall ensure adequate training " in reg.9 implied a mandatory duty to train but the key word was adequate. The mere fact that the duty to train was mandatory did not raise the meaning of "adequate" to the high level that C contended for and reg.9 did not impose no-fault liability. This was not no fault liability legislation.

(2) So, what was the test for the adequacy of training? It was held that to say that the training was adequate if it dealt with the risks which the employer knew about was to impose no greater a duty than existed at common law.

The Judge at first instance had made these comments:

“If the test is the adequacy of the training in all the circumstances, it seems to me that much must depend upon the employer’s past experience of problems and the information the employer receives about the particular employee to be trained and the problems to be expected to confront employees of a particular category, in this case an employee of five feet one inch with a particularly small arm and a narrow hand.”

The Claimant had not reported any problem or symptoms with the handle before injury:

“That, it seems to me, is an important circumstance indicating that the absence of training about where to put the thumb or the end of the thumb does not make the training inadequate in relation to the claimant. That important circumstance together with the absence of reasonable foresight of the particular injury leads me to conclude, balancing the opposing arguments, that the training was adequate in all the circumstances.”

The Court of Appeal found the first instance Judge wrongly held that the training had been adequate because it had been adequate to deal with the risks that the employer had actually foreseen.

The judge had also considered a risk assessment that the employer had later carried out after the consultation, design and introduction of the TBC.

The Court of Appeal found:

“He ( the county court Judge) did not make any finding whether the risk assessment had been sufficient and suitable so as to comply with Regulation 3 of the 1999 Management of Health and Safety at Work Regulations. He observed that it had identified the need for training and refresher training in the operation of the TBC. He continued, towards the end of paragraph 70:

‘The point it seems to me is that training was given on the use of the handle. It was given to the claimant and it was given to her by others – how to adjust the seat so that the armrest was in the right place and so that the bending of the wrist would be avoided. In short, it seems to me that the risk assessment did identify the measures to be taken, namely initial and refresher training’ “

The Court of Appeal found that although the judge had warned himself that the test would not be the same as the common law test, he had in fact wrongly applied the common law test.

They held the statutory duty was higher and imposed on the employer a duty to investigate the risks for the purposes of health and safety was what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business, inherent in his operations, taking professional advice where necessary, Dugmore -v- Swansea NHS Trust (2002) EWCA Civ 1689, (2003) 1 All ER 333 applied.

Dugmore

LJ Smith rejected submissions that Dugmore had been a case of “no fault” liability. In that claim the test was whether the employer had adequately controlled exposure to latex so as to prevent an allergy. There were no known cases or knowledge of allergy risks from latex published in the UK at the time of exposure. But there was literature overseas at the relevant time that could have been discovered and which warned of a risk of allergy associated with latex.

LJ Smith found the relevant point of Dugmore was that the court:

“did not hold that exposure was not adequately controlled merely because the claimant developed the allergy. It held that control was not adequate because it would have been quite possible, well before the claimant developed her allergy, for the employer to have discovered the risks of exposure to latex and to have provided vinyl gloves.

“Liability was not absolute in the sense that ( counsel for the Claimant) Mr Foy contends for in the present case, namely that it was imposed even though the employer could not have discovered the risk by the exercise of all due care and diligence. Thus, I do not think that Dugmore provides the support for which Mr Foy contends.

“The case is, however, of relevance to the issue in the present appeal in that the Court drew a distinction between the common law duty (for the employer to take reasonable care to avoid reasonably foreseeable risks) and the more onerous duty imposed by the regulations, which, the Court held, required the employer to go out and discover the risks and to take the appropriate steps”

In this case, the suitable step in terms of the business and consultation of experts would have been to consult an ergonomist.

LU ought not to have put the new brake controller into service without taking advice from a suitably qualified expert on the need for the drivers to be trained in the way they held the handle to minimise the risk of injury. Because this advice was not taken, the risk arising from the design of the grooved end was not recognised as it should have been and the training given to C was not adequate for the purposes of health and safety in breach of reg.9.

All three Court of Appeal Judges found for the Claimant. The Master of the Rolls A Clarke wrote a similar supporting judgment.

The implications:

a) Risk assessments

The wider point LJ Smith made, of use to virtually all personal injury cases, was that the sufficient steps an employer should take to comply with their statutory duties came hand-in-hand with their duty to make a risk assessment :

Para 58 Judge Cowell ( the County Court Judge) recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been “adequate in all the circumstances” he did not need to decide whether the risk assessment had been “sufficient and suitable”.

With respect to the Judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced.

I think this is because Judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably, judicial decisions have tended to focus on the breach of duty that has lead directly to the injury”

In the present case, the Judge failed to decide whether the risk assessment had been sufficient and suitable. It appeared to me that the right approach for this court to take, in deciding whether the appellant’s training had been adequate for health and safety purposes, was to examine whether the respondent’s risk assessment had been sufficient and suitable. That, as it seemed to me, would provide the answer”
Allison v London Underground [2008] EWCA Civ 71