WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of Health and Safety Regulations - Wilkes - v - Areva T & D Ltd

Management of Health and Safety at Work Regulations 1992
Regulation 3	Wilkes - v - Areva T & D Ltd | Find Other Cases

In the Judgment on the 4th April 2006, at paragraphs 31 & 32, Mr Recorder Cliff states:

Insofar as regulation 3 of the Management of Health and Safety at Work Regulations is concerned, and I remind myself that these regulations do not give rise to an action in civil law, and the regulations specifically state that, they state this:

"Risk Assessment: 1. Every employer shall make a suitable and sufficient assessment of a) the risks of the health and safety of its employees to which they are exposed whilst they are at work, and, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory regulations," and 3, "Any assessments such as referred to in paragraph 1 shall be reviewed by the employer who made it if a) there is a reason to suspect that it is not valid, or b) there has been a significant change in the matters to which it relates and where as a result of such changes to an assessment require the employer concerned shall make them."

Well here the claimant says, "Here was a change of tool which should have been assessed." I say that these regulations do not give rise to liability in civil law, but they can be pleaded as a particular of negligence.

V2.01

Provision and Use of Work Equipment Regulations 1998
Regulation 4	Wilkes - v - Areva T & D Ltd | Find Other Cases

In the Judgment on the 4th April 2006, at paragraph 32, Mr Recorder Cliff refers to the Provision and Use of Work Equipment Regulations:

So far as the Provision and Use of Work Equipment Regulations are concerned, at regulation 4:

"Suitability of Work Equipment: 1. Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided," and 3a, "Subject to subparagraph b, means suitable in any respect to which it is reasonably foreseeable will effect the health and safety of any person."

Mr Recorder Cliff goes on to say at paragraphs 36 to 38:

........ on the findings of fact that I have made, it is clear, firstly, and I find this, that the CT6R tool was not suitable for the purpose and prima facie, therefore, the defendants were both in breach of their statutory duty and negligent. In particular, they had no regard to how the tool was going to be effective in operation. They carried out no risk -assessments and they ignored the complaints, which I have found as a matter of fact, that were made. I do not think it is necessary to make a specific finding about whether they were negligent or not. I think it follows from what I have said that if they are in breach of their statutory duty they are also in breach of their common law duty of care to the claimant.

I would add this: that had the defendant carried out a risk-assessment they would have discovered that greater effort was required to operate the tool. Their employees, or at least those who were operating this new tool, the CT6R, were unhappy with the extra effort which they had to use to make it work, and that both Mr P and probably Mr W had experienced problems with their wrists. I do not say that they had suffered injury with their wrists, but they were plainly experiencing problems with their wrists through the operation of it. If the risk-assessment had been carried out, more probable than not they would have done something about it. Either they would have allowed their workforce to have their old crimpers back, or would have replaced it with the newer version which, as I have already found and said, was available at the time that the CT6R was purchased. I am afraid that it is just not good enough, and I find as a fact that it is not good enough, to rely upon the manufacturer's advertising information or their information leaflets.

However, breaches on their own are not sufficient. I have to be satisfied that any breach was causative of the injury and loss that the claimant has suffered. It is apparent from what I have already said, having accepted the claimant's evidence and the medical evidence as set out in the joint medical report, that there is a causal link between the breaches and this incident, and the injury which the claimant suffered. However, any such injury and loss must be reasonably foreseeable. Foreseeability of injury is not foreseeing that something is likely, but that something is actually foreseeable. The basic principles of foreseeability are, firstly it is a flexible test; secondly, it contains two different elements, that is the incident of risk and the degree of severity of the risk which it creates. It may be that the risk is small and that it is one which a reasonable man would disregard. However, even though the risk is small it may be one where the risk of injury is great, it is one that should not be ignored.

After referring to some legal precedents, at paragraphs 42 & 43 Mr Recorder Cliff states:

So far as the test to be applied in this case is concerned, I take the view that the task which was required of the claimant and his fellow employees is partly subjective; that is looking at him an employee, and partly objective; by looking at the task as a whole. The factors which, in my view, should be taken into account were in fact identified by [the Single Joint Ergonomics Expert], I think in answer to a question which I raised with him, that one has to look at certain matters i.e. the frequency of the operation, the age of the operator, his physical capability, the effort required, his posture, and the instance of fatigue. The evidence in this case was that the claimant, although he was crimping only three or four of these yellow crimps before the accident, they would take him a considerable effort to do so. He was 59. He is likely to be less powerful than a younger member of the workforce, although people plainly younger than him were finding this job difficult. The effort required was excessive, and I find that greater effort leads to greater risk of injury. There was a reduced mechanical advantage because of the way the claimant was working, that is standing on some steps with his arms outstretched and, of course, it was the end of the claimant's shift during the last hour of working that day.

I have little difficulty on that basis in concluding that the introduction and use of this CT6R tool did give rise to a foreseeable risk of injury. The question really is, was some form of upper limb injury foreseeable, and, in my opinion, it was. As is submitted by [Counsel for the Claimant], this is largely a matter of common sense, but it seems to me that if you suddenly change a tool with which your workforce are working comfortably to one which makes it much more difficult for them to perform a job, and which they complain about, then it seems to me that there is a foreseeable risk of some injury occurring in the upper limbs, which in fact occurred in this case. I do not think there is any magic about it at all, I think it is pretty obvious if you are going to ask your workforce to do something with a tool that you have not bothered to check or risk assess and have ignored complaints, and an accident occurs.

V2.02

Last updated: 14/05/2013