WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of HSE Guidance Documents - Walker - v - Wabco Automotive UK Ltd
| Work Related Upper Limb Disorders: A Guide to Prevention HSG60 1990 | |
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| Walker - v - Wabco Automotive UK Ltd | Find Other Cases | |
In the Judgment at first instance on the 15th October 1998, at E on page 10, HH Judge Lightfoot says:
Now, what was the state of knowledge at the time?
Well, certainly there was awareness in 1991 of problems with vibration - arising from vibration, in creating upper limb disorders. The action level of A8 had not at that time being published, but in 1990 - October of 1990 the Health and Safety Executive G60 document was published, and that was on work-related upper limb disorders, and it sets out many factors; force, frequency and so on - and posture. But it says there are a number of other relevant factors, including exposure to vibration. That is a synopsis of what it says in there, and significant sections of this document are contained in the report [of the Engineer instructed by the Plaintiff] where he quotes extensively from that publication.
In the Judgment of the Court of Appeal on the 11th May 1999, Lord Justice Brooke says:
In these circumstances the judge found that a reasonable employer would have foreseen this risk on the ground and that this employer did not do so. The complaints about the jig and other matters were met by the response "Get on with it". It followed, in his judgment, that liability for both attacks of carpal tunnel syndrome was established. The judge therefore found the defendants liable in the following respects:
(1) Causing or permitting the claimant to perform the repetitive movements pleaded;
(2) Failing to devise, institute or maintain a safe system of work;
(3) Failing to give any warning of the risk of injury;
(4) Failing to heed the literature including the Health and Safety Executive's publication HS(G)60 (1990) and then failing to act thereon before it was too late to benefit the claimant;
(5) Failing to make a suitable and sufficient assessment of the risks to health and safety to which the claimant was exposed at work;
(6) Failing to provide the claimant with a safe system of work, safe plant and equipment and in particular safe and satisfactory power tools, and thereby exposing her to an unnecessary and foreseeable risk of injury.
Lord Justice Brooke goes on to say:
In opening this appeal to us [Counsel for the Defendant] has drawn our attention to certain passages in the evidence given by [the Engineer instructed by the Plaintiff] and [the Engineer instructed by the Defendant] to the judge. [The Engineer instructed by the Plaintiff] had told the judge that he would expect the defendants to have been conversant with HSE(G)60 in 1991, but he accepted that in relation to the other possible factors that might be relevant in upper limb disorders, apart from the main factors identified in that document, (G)60 would have provided no assistance on the amount or duration of exposure to vibration that was to be avoided, so that there was no help to employers at all in that document.
He said that the timings [of the Engineer instructed by the Defendant] as to the exposure to vibration of 30 seconds per unit included all the relevant timings, except for that involved in undoing the bolts if they were so tight that they needed assistance from one of the electric instruments. But essentially, he agreed the estimate [of the Engineer instructed by the Defendant] of 33 minutes' exposure to vibration in a working day. He accepted that on reading (G)60 the only thing an employer could do would be to ask: was there significant vibration?
So far as the evidence [of the Engineer instructed by the Defendant] was concerned, he said that the tools used were common and commonly used by women. That was in contrast to the evidence of [the Engineer instructed by the Plaintiff] that tools of the nature seen were not common in routine production operations for females.
He gave the evidence, which the judge discounted, that if the claimant was only exposed for 30 minutes per day, the vibration levels would have to be at around 11 in order to have the effect of which she complained. His evidence was that he would not expect the reasonable employer in the early 1990s to have foreseen or known about the vibration issues; that the problems relating to carpal tunnel syndrome were not properly presented to employers until June 1994; and that carpal tunnel syndrome was not added to the list of prescribed industrial deceases in a context like this until April 1993. He told the judge that he would not expect an employer in the early 1990s to warn the workforce, unless there had been previous cases of upper limb disorders among its employees.
He said that the fact that the exposure to vibration was concentrated at the end of the month would make little difference, because the vibration per unit would not exceed the level about which he gave evidence.
It therefore follows, as emerged from the submissions that we received on the hearing of the appeal, that a great deal turns on the value to be ascribed to the Health and Safety Executive guide, Work Related Upper Limb Disorders, which was published in 1990.
Lord Justice Brooke then says:
[Counsel for the Defendant] submitted that the position of the present claimant was very similar to the position of the respondent in Heyes. The employers had been using a well-tried system of work and the level of vibration to which the claimant was exposed was quite limited, and not such as reached the action level identified by the Health and Safety Executive in 1994 when they first gave employers detailed guidance about this particular risk. He relied on the fact that there had been no known instance of injury to any of the defendants' operatives from this method of working until the claimant made her complaint following her second operation in 1994, and she had not herself told the defendants about any association between her condition and the work she was doing, even after she returned to work after her first operation in 1993.
As I have said, the high watermark of the case for the claimant is the Health and Safety Executive guide published in 1990. After an introduction, in which it is made clear that the booklet is concerned with the prevention of disorders of the upper limb which might be caused or exacerbated by work activities, the authors of this guide explain what upper limb disorders ("ULDs") are and then go on to identify occupational factors associated with upper limb disorders. They said:
"In recent times evidence of causal links between specific occupations and hand/wrist disorders has accumulated from anecdotal reports, clinical case material, workplace surveys and more systematic epidemiological studies. A different form of evidence, but of equal validity, can be found in the ergonomic and biomechanics literature in which job demands that incorporate physical stress (force, posture requirements, speed, repetition) have been analysed as to their likely anatomical and physiological impact. All have provided sufficient accumulated evidence to link work factors with the ULD's [identified in the guide]."
The guide goes on to identify what it called the predisposing work conditions and said:
"Activities associated with the onset of ULDs arise from ordinary movements that may include forceful repetitive gripping, twisting, reaching, moving etc. What makes them hazardous is prolonged repetition often in a forceful and awkward manner without sufficient rest or recovery time. This type of work fails to take into account what is known about human physical capabilities, and the resulting disorders are a reflection of a pattern of usage of the limb or part of it."
The guide continues:
"The majority of occupational factors associated with the increased risk of ULDs can be grouped into three general areas:
• force - the application of undesirable manual force;
• frequency and duration of movement - including unsuitable rates of working or repetition of a single element;
• awkward posture of the hand, wrist, arm or shoulder."
With a number of illustrations of the points being made in the guide, there follow a number of pages giving guidance about the problems created first by force, then by frequency and duration, and finally by posture.
There follows a short passage headed "Other work-related factors". In this passage occurs the following section:
"Apart from the main risk factors described above there are a number of other factors that may be relevant. These include exposure to vibration which imposes greater hand force requirements (eg from powered tools) and exposure to cold environments or to cold products (eg, packing or handling frozen items)."
It is on that paragraph, and that paragraph alone, in my judgment, that the claimant's expert, built up the case which the judge accepted that the employers ought by 1991 (or at any rate by 1993) have been aware that exposing the claimant to vibration for the fairly limited period of time to which she was exposed, was exposing her to the foreseeable risk. It is noticeable, in my judgment, that when [the claimant's expert] (on page 7 of his report in paragraph 5) said:
"In addition to the establishment of a safe working environment for the Plaintiff, it is my opinion a prudent employer recognising the existence of a risk of work related upper limb disorders and taking heed of Guidance Booklet HS(G) 60 would also institute procedures for the early identification of any work related upper limb disorders among their workforce."
He identified the employer in question as one who recognised the existence of a risk of work-related upper limb disorders. On the evidence before the judge, there had been nothing to draw these employers' notice to the risk of work-related upper limb disorder being caused by exposure to vibration for the limited period to which the claimant was exposed. In my judgment, it would be putting far too high a burden on employers to require them as a matter of legal duty to pay the degree of attention required by the judge to the suggestion in a Health and Safety Executive pamphlet that other factors might be relevant to the disorders referred to in the pamphlet, if there is no evidence at all available to them their operatives are suffering injuries of this kind.
In those circumstances, I am of the view that the judge imposed too heavy a burden on these employers when he held that they were liable to the claimant in the circumstances of this case. It is certainly the case that in his judgment in Heyes Otton LJ referred at page P3O8 to the obligation on the prudent employer to be aware of pamphlets from the Health and Safety Executive and other safety organisations drawing attention to risks which had come to light (and the means of avoiding them), but in my judgment he would not have had as tentative a piece of guidance as that included in paragraph 30 of the 1990 pamphlet in mind when approving that passage from the then current edition of Munkman at page 36.
For these reasons, I would consider that the defendants ought not to have been held liable to the claimant in the circumstances of this case, and I would allow the appeal.
In the Judgment of the Court of Appeal on the 11th May 1999, Lord Justice Beldam says:
I agree. The judge had to decide whether the defendants (as the claimant's employers) had exposed her in her work to a risk of injury of which they ought, as reasonable employers, to have been aware. The process on which the claimant was employed when she began to suffer from carpal tunnel syndrome had been carried on by the defendants for 20 years. No other operator had suffered such an injury. In reaching his conclusion that the defendants had failed in their duty to take reasonable care for the claimant's safety, the judge relied on three main factors. Firstly, a reference in the booklet to which Brooke LJ has referred issued in October 1990 by the Health and Safety Executive. This booklet related to upper limb disorders generally. It was largely concerned with twisting and gripping, as is clear from paragraph 30 which he quoted. Apart from this, no evidence that hand tools of the kind used by the plaintiff were a possible source of injury was produced, although such tools are common place in industry, for example, in the haulage and transport industries, in motor repair and many others.
Secondly, he relied on the opinion expressed by the professional witness called in support of the claimant's claim, to which my Lord has referred.
In his judgment, the judge said of this expression of opinion:
"He thinks, and I agree having heard described the conditions in which the plaintiff worked, and seeing the tools - the better of them, be it noted, those that vibrated less - that a reasonable employer should have foreseen the risk of upper limb disorders with that system of work, and done something about it."
As Brooke LJ has already remarked, the witness assumed in his statement of opinion the very question that the judge had to decide, namely whether the prudent employer carrying out the assembly process on which the claimant was employed, would have recognised a risk of injury.
Thirdly, the judge relied on his impression, based upon a relatively brief visit to the defendants' factory, of his estimate of the extent of vibration in the tools which he saw being operated. In my view, those were not a reliable foundation to set against the fact of the defendants' 20 years experience without injury, and the absence of any evidence that there was a significant incidence of injury (or risk of it) in other uses of similar tools. In my view, the evidence in this case did not establish that the defendants fell below the standard to be expected of the reasonable and prudent employer. Whilst their experience of the system of work for 20 years cannot be conclusive, it must, in the absence of clear evidence to the contrary, give rise to a reasonable inference that it did not expose their employees to an obvious or known risk of injury. Neither the casual mention of vibration among a number of other factors which could be relevant, nor the assumption by the claimant's expert that the prudent employer would recognise the existence of the risk, could amount to clear evidence to refute this otherwise reasonable inference.
I too would allow the appeal.
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Last updated: 14/05/2013