V1.01

This case summary is published with the kind permission of Lawtel (www.lawtel.com). Lawtel subscribers can access the full report at www.lawtel.com or for a free trial of the service click here.

The judge was wrong to place reliance on the 1990 Health and Safety Executive pamphlet HS(G)60, since it was not a reliable foundation to set against the fact that the employer had 20 years of experience without any complaints from employees regarding injury alleged to be caused by the use of hand-held vibrating power tools. Accordingly, it could not be said that the employer had fallen below the standard expected of a reasonable and prudent employer.

Defendant's appeal from the order of HH Judge Lightfoot, sitting at the Leeds County Court, made on 15 October 1998 whereby it was ordered that there be judgment for the claimant in the sum of £7,000. The claimant was born in February 1954 and during 1983 to 1995 worked for the defendant in its factory assembling compressor components. In assembling the compressors, the claimant had to use hand-held vibrating power tools. During June 1991, the claimant experienced pins and needles in her hands. The symptoms were diagnosed as Carpal Tunnel Syndrome ('CTS'). In April 1993 the claimant had an operation on her right wrist to relieve the CTS. The claimant returned to work in July 1993 and continued to assemble the compressors using the power tools supplied by the defendant. A further operation for the same reason was carried out a year later on the claimant's left wrist. The claimant brought proceedings against the defendant for damages for personal injury sustained whilst in the defendant's employment. At the trial on liability, the judge heard evidence from expert witnesses called by both parties as to the likely cause of the claimant's injuries and whether the defendant should have foreseen that there was a risk of injury to the claimant. The judge preferred the evidence of the claimant's expert witness, who he found to be careful, guarded, practical and fair when giving evidence; and held that the claimant's injury was caused by the hand-held vibrating power tools used at the defendant's factory. The judge then considered whether the defendant was in breach of its duty of care. After considering the evidence of the claimant's expert engineer and the Health and Safety Executive pamphlet HS(G)60 published in 1990 concerning work related upper limb disorders, the judge found the defendant to be in breach of its duty of care to the claimant. The defendant appealed contending, inter alia, that: (1) the judge was wrong to conclude that the claimant's CTS was caused by the use of the hand-held power tools; and (2) the defendant failed to conduct itself as a reasonable employer in the light of what it actually knew or ought to have known.

HELD: (1) The judge was fully entitled, having seen and heard the evidence, to prefer the evidence of the claimant and her expert witness regarding the use of the hand-held power tools. The judge accepted that the claimant and her witness were dependable and gave reliable evidence. It was, therefore, not open to the court to disturb the judge's finding of fact which was, on the evidence, open to the judge to find.

(2) It was clear that the judge had placed a great deal of reliance on the 1990 Health and Safety Executive pamphlet HS(G)60. However, the judge did not have the benefit of having his attention drawn to the decision in Heyes v Pilkington Glass Ltd (1998) PIQR 303 in which the Court of Appeal upheld the principle in Stokes v Guest, Keen & Nettleford (Bolts & Nuts) Ltd (1968) 1 WLR 1776 at 1783. The court was of the opinion that the judge imposed too heavy a burden on the defendant when he held it liable to the claimant in the circumstances of the case. Although the case of Heyes (supra) made it clear that there was an obligation on an employer to be aware of guidance from the Health and Safety Executive which drew attention to the possible risks to employees, the guidance in the 1990 Health and Safety Executive pamphlet HS(G)60 was too tentative to be relied on. That pamphlet related to upper limb disorders generally and was largely concerned with manoeuvres such as twisting and gripping. Moreover, there was no other evidence before the judge to support the claim that the hand-held power tools were or could have been the source of the claimant's injury. Consequently, the 1990 Health and Safety pamphlet was not a reliable foundation to set against the fact that the defendant had 20 years of experience without its employees suffering injury. Accordingly, the evidence in the case did not establish that the defendant had fallen below the standard expected of a reasonable and prudent employer at the time in question.

Appeal allowed.

Full Text of Judgment available on-line to Lawtel subscribers.