The Court of Appeal ruled that where a risk assessment would have revealed a risk of discomfort or fatigue but not a foreseeable risk of pathological injury, then the failure to have one creates no breach of the Provision and Use of Work Equipment Regulations (PUWER) 1998.
A train driver regularly used a seat, where the angle between the rear of the seat and the backrest was less than 90 degrees and his thighs were raised higher than his buttocks.
The claimant’s ergonomist Dr Randall stated that the seating angle, which put the body and legs at an acute angle (ie less than 90 degrees) resulted in a closed posture, which was uncomfortable for the lower back. He said you need an open angle greater than 90 degrees between the trunk and the thighs to avoid this discomfort.
The driver complained that this aggravated his sciatica.
The relevant law is Regulation 4 PUWER 1998: ie a duty to provide suitable equipment. Suitability is with respect to health or safety risks that are “reasonably foreseeable”. The Court of Appeal found that health should be equated with the risk of injury as opposed to discomfort.
They found that proper analysis of the ergonomic evidence at court showed that both ergonomists had conceded only a foreseeable risk of muscoskeletal discomfort and fatigue. When asked if there was a foreseeable risk of injury from the seat, the claimant’s ergonomist Dr Randall said: “I do not go that far. I say they do represent a foreseeable risk of discomfort.”
So, the Court of Appeal found this evidence fell short of showing it was reasonably foreseeable any injury would arise with an adequate risk assessment of the equipment.
The main Judgment against us was by Lord Justice Wilson. He was supported by Lord Justice Rix.
Although Lord Justice Longmore found against us on causation, he did give a dissenting opinion as to what a risk assessment could have achieved to prevent injury;
“If it is reasonable to do a risk assessment and a reasonable completed risk assessment would cast doubt on the suitability of equipment such as a seat and the driver’s health is affected, the seat is not suitable. It is the employer’s duty to guard against risks. An ergonomically defective chair is just such a risk”.
However, this was a dissenting opinion .
Arriva Trains Northern Limited -v- Eaglen  EWCA Civ 352.