WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of HSE Guidance Documents - Kane -v- Eaton Williams Group Ltd

Upper Limb Disorders in the workplace HSG60(rev) 2002
	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraphs 14 to 16, Mr Recorder Rhodri Davies QC stated:

[Counsel for the Claimant] says that amongst the material which a reasonable and prudent employer must keep abreast of is the guidance published by the Health and Safety Executive (HSE) and, specifically in this case, the HSE's guidance on Upper limb disorders in the workplace, as published in 2002 (replacing a 1990 publication).

The HSE guidance points out (e.g. at paragraph 86) that individuals may vary in their susceptibility to upper limb disorders (ULDs) and, broadly, advocates a proactive approach to the risks of ULDs under which employers should identify activities creating an unacceptable risk and then take measures to reduce that risk. In this regard, [Counsel for the Claimant] says that the Defendants should have identified the repetitive snipping carried out by Mr Kane as creating a risk of ULDs.

The HSE guidance also deals with the management of ULDs once they have occurred. [Counsel for the Claimant] relies on this aspect of the guidance as having been triggered after Mr Kane was diagnosed as suffering from tendonitis in late March [Counsel for the Claimant] drew attention to paragraphs 105 to 117 of the guidance, which include the following:

105 ... The approach to managing these complaints [ULDs] is broadly similar whether they are thought to have been caused by work activity, been made worse by the work or are largely unrelated to particular work tasks.

113 Receipt of a written diagnosis of an upper limb disorder may trigger a requirement to make a report to the relevant enforcing authority under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). This requirement applies only to a small number of ULDs which arise in the course of specified work activities. Appendix 4 provides further details.

115 Confirmation of a case of an ULD should be taken as a prompt to consider whether existing risk assessments and controls are adequate. This is especially important if there are other previously reported cases.

When considering events after Mr Kane had returned to work, Mr Recorder Rhodri Davies QC stated, in paragraphs 97 to 99 of his Judgment:

On 6 April 2004 Mr Kane returned to work after a week on sick leave with a diagnosis of tendonitis. [Counsel for the Claimant] says that, whatever the position before then, at this point a reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know, would have recognised that there was a risk that Mr Kane's injury was being caused, or at least aggravated, by his work.

[Counsel for the Claimant] is able to pray in aid paragraph 115 of the HSE guidance stating that confirmation of a case of an ULD should be taken as a prompt to consider whether existing risk assessments and controls are adequate and the requirement under regulation 5 of RIDDOR for an employer to make a report if he receives in relation to an employee a written diagnosis from a doctor of traumatic inflammation of tendons of the hand and forearm and the employee is engaged in physically demanding work or repeated movements.

I have concluded that [Counsel for the Claimant] is right about this. Mr Kane had a physical job which required extensive use of his arms, wrists and hands. I consider that, when Mr Kane returned to work after a week off as a result of tendonitis, a reasonable and prudent employer who was familiar with current good practice, as evidenced by the HSE guidance and the RIDDOR requirements, would have been alerted to the risk of a connection between Mr Kane's work and his tendonitis. Mr Baldy, who made the RIDDOR report in June 2004, was inclined to agree that the need for a RIDDOR report in April had probably been overlooked.

In paragraph 101 to 106 of his Judgment, Mr Recorder Rhodri Davies QC went on to say:

On the evidence none of Mr Kane, Mrs Griffin or Mr Jeffrey had received any relevant health and safety training. Mr Leyland, who was the health and safety officer at the time, was aware of the HSE's 1990 guidance, but not of its 2002 up-dated guidance, and clearly saw RSI problems as centred on keyboard use. In my view, this state of affairs constituted a failure to provide adequate training in breach of Regulation 9 of PUWER. I am not convinced that every member of staff needed to be trained in relation to ULDs, but a combination of training and organisation was needed so as to ensure that if an employee was diagnosed with tendonitis then positive attention was paid to the risk that was signalled by that diagnosis.

In that connection, Mrs Griffin said that the Med 3 certificate would have gone to personnel rather than management. Assuming that to be the case, a system was needed to ensure that, if doctors reported conditions such as tendonitis, that was brought to the attention of the appropriate management. As it was tendonitis also as the reason for absence on the return to work form that Mr Kane signed.

The Defendants were not, in my view, inconsiderate or unsympathetic employers. As I have recorded above, there was a discussion with Mr Kane as to whether he was fully fit to return to normal work or whether he should go on to light duties for a period, but this discussion was not undertaken with any recognition of the risk of a connection between Mr Kane's work and his tendonitis. In failing to appreciate that risk the Defendants were, in my judgment, in breach of their common law duty to Mr Kane. The failure to appreciate the risk was also a consequence of the absence of adequate training.

What then ought the Defendants to have done? In my view, the one course which was not open to the Defendants was to put Mr Kane back on the same work without further inquiry into the cause of his tendonitis. Mr Kane had been working on the Trumpf machine; he had suffered tendonitis; there was an obvious risk that his tendonitis had been caused by his work; it follows that, if he went back to the same work, there was a foreseeable risk that he would suffer from tendonitis again.

There were alternative and proper courses open to the Defendants. They could have sought medical advice as to whether there was a connection, or a likely connection, between Mr Kane's work and his tendonitis. If the answer was Yes, or on the assumption that the answer was Yes, they could and should have undertaken an assessment of Mr Kane's work with a view to instigating changes and procedures to reduce the risk of Mr Kane suffering another outbreak of tendonitis to an acceptable level. This exercise might well have required professional advice from an ergonomist or an occupational health specialist. As paragraph 115 of the HSE's guidance suggests, confirmation of a case of an ULD should be taken as a prompt to consider whether existing risk assessments and controls are adequate.

What the Defendants could not do, in my judgment, was simply to carry on as before without further inquiry.

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Last updated: 14/05/2013