The statutory duties relied upon being first at paragraph 3(1) of the Management of Health and Safety at Work Regulations 1999, the breach of which may amount to negligence; and paragraph 4 of the Provision and Use of Work Equipment Regulations 1998, which concerns equipment used at work; and, thirdly, paragraph 9(1) of the last mentioned Regulations, which concerns adequate training in the use of work equipment.

Much of the Court of Appeal Judgment in this claim explores the duty imposed by regulation 9 of the Provision and Use of Work Equipment Regulations 1998, which in this case was closely linked to whether the risk assessment under Regulation 3 of the Management of Health and Safety at Work Regulations was suitable and sufficient. The degree of foresight the Court of Appeal appear to have expected of the Defendant may come as a surprise to many. There are also references to regulation 4 of the Provision and Use of Work Equipment Regulations, but no references to any HSE guidance documents.

3.01

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The duty imposed by the Provision and Use of Work Equipment Regulations 1998 reg.9 was not absolute and did not impose no-fault liability. The test for the adequacy of training 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 and the Regulations imposed a duty on the employer to investigate the risks inherent in his operations, taking professional advice where necessary.

The appellant (L) appealed against a decision dismissing her claim for breach of duty under the Provision and Use of Work Equipment Regulations 1998 reg.9 against the respondent employer (R). L had been employed by London Underground as a tube train driver. L developed tenosynovitis and it was accepted that her injury was due to the prolonged use of a traction brake controller. The brake controller used by L had a chamfered end. This design feature had been introduced at the suggestion of two experienced train drivers who thought the new design might be more comfortable when holding the brake controller. The modification was not the subject of expert advice and no special instructions were given to the drivers as to how they should position their thumb in relation to the chamfered end. It was common ground at trial that L's injury was caused by the position in which she held her thumb while applying pressure to the brake controller. L submitted that (1) the duty under reg.9 was absolute and that in the context of the duty to ensure the provision of adequate training under reg.9 "adequate" meant sufficient and the judge should have considered whether her training was in fact adequate, and not whether it was adequate in the light of what R had appreciated before the training was given; (2) in the alternative, if the 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.

HELD: (1) No-fault liability was rare in English law. It existed but required clear words of imposition. The words "to ensure" in reg.9 implied a mandatory duty. However in the context of reg.9 the words did not mean anything more than that the duty to provide training was mandatory. The employer must provide training and it must be adequate. The mere fact that the duty to train was mandatory did not raise the meaning of "adequate" to the high level that L contended for and reg.9 did not impose no-fault liability. (2) The test for the adequacy of training 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. 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 statutory duty was higher and imposed on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary, Dugmore v Swansea NHS Trust (2002) EWCA Civ 1689, (2003) 1 All ER 333 applied. Although the judge 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. The judge had failed to decide whether the risk assessment was sufficient and suitable. R must have been aware of the risk of strain injury from the use of the brake controller and should have taken advice about it from an ergonomist. No specific instruction was given to L as to the correct way to hold the brake controller handle so as to minimise the risk of injury. R ought not to have put the new brake controller into service without taking advice from a suitably qualified expert. Had it done so, it would have identified the need for the drivers to be trained in the way in which they held the handle in order to minimise the risk of injury. Because this advice was not taken, the risk arising from the design of the chamfered end was not recognised as it should have been and the training given to L was not adequate for the purposes of health and safety in breach of reg.9.

Appeal allowed

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