VWF: Court of Appeal brings forward date of knowledge to 1989 for car fitters
This appeal arose from the judgment reported in the December 2004 Law Bulletin. It had been held that the 1975 publication “DD43” was sufficient knowledge for the defendant to act upon to protect the workforce from injury through vibrating tools and their failure to do so was negligent.
The Court of Appeal has overturned this. It said no evidence had been brought to show how this particular defendant had direct knowledge of the publication or why they should reasonably have had constructive knowledge of it. For example, there was an absence of documents showing it had been published in leading trade journals etc. It was not enough to say many leading motor manufacturers were involved in its publication if it could not be shown the defendant was, say, on the committee.
Sufficient knowledge was available by the time of BS6842 published in 1987 as that set a British standard, was widely published and was the sort of publication a reasonably medium size employer of this sort – with 250 car fitters using vibratory equipment – should have been aware of. The Court of Appeal then allowed a further two years, for investigation of exposure and symptoms among the fitters and to set up preventative systems, thus bringing the date of negligence to 1989.
They stressed this was not of general application to the transport or motor industry but purely for this defendant – there were circumstances where it could be shown an employer did know or should have known of DD43 and thus the date of knowledge could still be 1975.
No apportionment of damage
This employee had had exposure to vibrating tools from 1982. So there were seven years of non-negligent exposure to 1989. But he had only had symptoms from 1999. The Court of Appeal held that, where symptoms had so clearly started after negligent exposure, the principle that “because he would never have developed any symptoms if it had not been for the employer’s negligence” applied and he should receive damages in full.
It would have been different had he exhibited symptoms before the date of negligence
Brookes -v- South Yorkshire Passenger Transport Executive and Mainline Group Limited,  EWCA CIV 452.
b) The Control of Vibration at Work Regulations 2005 come in on 6 July 2005 with statutory duties imposed on employers to workers or any other persons who may be affected by vibratory work. They set minimum health and safety requirements for such work.