V1.01

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Employer did not owe employee duty of care to warn of increased risk of injury which might result from increased work load since a reasonable employer would not have known of the increased risk.

Appeal of the plaintiff from the order of His Honour Judge Hardy at Oldham County Court on 16 August 1996 whereby he dismissed the plaintiff's claim for damages for personal injury. The plaintiff had been employed as a part time cashier by the defendants since 1978. Her principal duties involved counting money by hand. In 1990 the defendants required volunteers to work additional hours which the plaintiff agreed to do. Her hours of work increased from an average of 24 hours per week to 40-50 hours per week. The plaintiff started to suffer from problems with her right middle finger in December 1990. She continued to work before seeing her GP in August 1991 who referred her to see a consultant orthopaedic surgeon. By that time her hours of work had been reduced back to about 24 per week. The plaintiff had a release operation of the right middle finger in 1992 and in 1995 resigned, referring in her resignation letter to tenosynovitis in both hands. The plaintiff brought proceedings against the defendants alleging breach of duty to provide a safe system of work and in particular that the plaintiff worked in ignorance of the risk of injury and the need to report symptoms as soon as they occurred. Expert witnesses had concluded that there was no risk of injury until the plaintiff's working hours had increased and stated that if they had been called upon to advise they would have advised that the plaintiff should have been warned of the risk of injury. The judge concluded that the increase in working hours did not create a reasonably foreseeable risk that the plaintiff might suffer from work related limb disorder and dismissed the plaintiff's claim. The plaintiff appealed.

HELD: (1) The Expert's analysis of what should have been done was not the test in establishing whether the defendants had been in breach of their duty to warn the plaintiff: the test was whether a reasonable employer would have so done. In any event the judge had concluded that the experts' opinions were clouded by hindsight. In this respect the judge had applied the correct test (2) In determining whether a reasonable employer would have been aware of the risks reference was made to HSE publications MS10 (Beat Conditions Tenosynovitis) and "Work Related Upper Limb Disorder - A Guide to Prevention". Neither publication would have put a reasonable employer on notice as to the risk. (3) In the circumstances there was not even a duty on the employer to consider calling for experts to advise as to whether there were any risks.

Appeal dismissed.

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