WRULD DB : Regulations

WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of Health and Safety Regulations - Allison - v - London Underground Ltd

Management of Health and Safety at Work Regulations 1992
Regulation 3	Allison - v - London Underground Ltd \| Find Other Cases

In the County Court Judgment on the 25th January 2007, at paragraphs 3 & 4, HH Judge Cowell states:

Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 reads as follows:

"Every employer shall make a suitable and sufficient assessment of - (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; [(b) is immaterial] ... 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 provisions..."

There is also subparagraph (3) about reviewing the assessment: It is to be noted that the purpose of the assessment is that it should lead to the practical taking of measures.

At paragraph 70, HH Judge Cowell states:

I should say a word about risk assessment. As I understand it a breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999 does not automatically give rise to an action for damages, but gives rise to a criminal offence. Simply doing a risk assessment itself may in certain respects be of no consequence and in other respects may be not enough. If there is no risk in a particular respect and the assessment is to that effect the assessment may I suppose be said to be of no consequence and a waste of time, but if a risk is identified it is not enough to do nothing about it because after all the purpose is to identify the measures the assessor needs to take to comply with the various statutory provisions, so the whole purpose of the regulation is so that measures can in practice be taken, practical measures; and doing nothing at all in the way of a risk assessment may amount to negligence. But the risk assessment actually done in this case is one dated 22nd March 2000 (page C326). Under the heading "Any hazards found or description" there is a reference to "repetitive twisting and turning to operate the controls eg traction brake controller in the cab" and "drop lights at stations" (it adds). And under a list of controls there are references to initial training and refresher training. I do not think it is material whether one describes the risk as low or medium. The point it seems to me is that training was given on the use of the handle. It was given to the claimant and it was given by her to others - how to adjust the seat so that the armrest was in the right place and so that the bending of the wrist would be avoided. In short, it seems to me that the risk assessment did identify the measures to be taken, namely initial and refresher training, but that simply leads on to the question which has arisen in this case and which I have attempted to answer: was the training adequate within the meaning of Regulation 9 of the other regulations?

In the Judgment of the Court of Appeal on the 13th February 2008, at paragraphs 11 & 12, Lady Justice Smith refers to the Management of Health and Safety at Work Regulations 1999:

The appellant's claim rested partly on the alleged inadequacy of the risk assessment which the respondent had carried out on the use of the Jubilee Line TBC. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (the 1999 Regulations) provides:

"3(1) Every employer shall make a suitable and sufficient assessment of

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) ... (not applicable)

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 provisions."

The judge did not deal expressly with the suitability or sufficiency of the risk assessment which had been carried out in respect of the TBC. Although that failure is not a ground of appeal, I will have to return to the question of risk assessment in due course.

Returning to consider the risk assessment, at paragraphs 21 & 22, Lady Justice Smith says:

The judge then turned to consider the risk assessment which the employer had carried out in March 2000. As I have said, he did not make any finding as to whether the risk assessment had been sufficient and suitable so as to comply with Regulation 3 of the 1999 Regulations. He observed that it had identified the need for training and refresher training in the operation of the TBC. He continued, towards the end of paragraph 70:

"The point it seems to me is that training was given on the use of the handle. It was given to the claimant and it was given to her by others - how to adjust the seat so that the armrest was in the right place and so that the bending of the wrist would be avoided. In short, it seems to me that the risk assessment did identify the measures to be taken, namely initial and refresher training, but that simply leads on to the question which has arisen in this case and which I have attempted to answer: was the training adequate within the meaning of Regulation 9 of the other Regulations?"

I confess that I have not found this passage entirely easy to follow. It seems to me that the judge was saying that it was not necessary to decide on the sufficiency and suitability of the risk assessment because, if training was given in accordance with the results of the risk assessment, the sufficiency of the risk assessment equated to the adequacy of the training. That question he had already decided. Maybe that was intended to be a holding that the risk assessment was sufficient and suitable. However, the judge had not applied his mind directly to the issue of whether or not the risk assessment was 'sufficient and suitable'; in particular he had not dealt with submission [by Counsel for the Claimant] that the employer should have sought expert advice about the risks related to the use of the handle with the chamfered end, either at the design stage or in March 2000, when the formal risk assessment was carried out, presumably in response to the 1999 Regulations.

Lady Justice Smith returns again to consider the risk assessment, at paragraphs 57 to 59, in which she says:

How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.

Judge Cowell recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been 'adequate in all the circumstances' he did not need to decide whether the risk assessment had been 'sufficient and suitable'. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury.

In the present case the judge failed to decide whether the risk assessment had been sufficient and suitable. It appeared to me that the right approach for this court to take, in deciding whether the appellant's training had been adequate for health and safety purposes, was to examine whether the respondent's risk assessment had been sufficient and suitable. That, as it seemed to me, would provide the answer. In post hearing submissions, [Leading Counsel for the (Defendant) Respondent] argued that this would not be right as the judge's failure to decide on the sufficiency and suitability of the risk assessment had not been a ground of appeal. The appeal was limited to the correctness of his decision under Regulation 9. I can see the force of that objection. However, it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the respondent's risk assessment. I just think that the most logical way to approach the question is through a consideration of the suitability and sufficiency of the risk assessment. Having said that, I will respect the objection of [Leading Counsel for the (Defendant) Respondent] and will approach the question of what the employer ought to have known about the risks direct from the evidence before the judge.

Lady Justice Smith then says, at paragraphs 61 to 65:

From [the report of the Ergonomics Expert instructed by those acting on behalf of the Defendant], it appears that the design of the Jubilee Line TBC and the associated driver's seat and armrest was extensively considered in the mid-1990s, with a view to eliminating or reducing the risk of strain and musculo-skeletal injuries. The consideration included seeking the advice of ergonomists. However, it is clear from the evidence that the particular feature of the TBC handle with which we are concerned was not the subject of such expert advice. As I have said, the chamfered end was introduced at the suggestion of two experienced drivers who thought that it would make the handle more comfortable for them. It appears from [the report of the Ergonomics Expert instructed by those acting on behalf of the Defendant] and examination of the documents disclosed by the respondent that at no stage was professional advice sought about the existence of risks arising from the prolonged use of the TBC with its chamfered end.

Ought the employer to have sought the advice of an ergonomist in respect of the risk of the TBC handle with the chamfered end? It seems to me that the proper assessment of the risks of developing a static strain upper limb disorder from the prolonged use of a TBC are likely to be beyond the capability of anyone other than an ergonomist. I note that Article 5a of the Work Equipment Directive requires that ergonomic principles should be taken into account when providing work equipment. If when providing equipment, why not when deciding upon the need for training? This respondent was aware of the risks of strain injury arising from the prolonged use of TBCs, as the documents show. In my view, the respondent must have been aware of the risk of strain injury from the use of the TBC and should have taken advice about it from a professional, namely an ergonomist.

"I am reluctant to accept that the use of ergonomists when the TBC was designed would necessarily have resulted in their noticing that the bevel might be used by the end of the thumb, which would be a bad thing, as opposed to its being against some other part of the grip of the user's hand".

In so far as the judge there appears to be rejecting the statement of [the Ergonomics Expert instructed by those acting on behalf of the Defendant] about what an ergonomist would have noticed, I do not think he was entitled so to do. Of course, a judge is entitled to reject part of the evidence of a witness, including an expert witness, even though he accepts most of it. However, in this case the judge did not apply the correct test; nor did he give any reasons for rejecting this aspect of evidence of [the Ergonomics Expert instructed by those acting on behalf of the Defendant]. In considering whether an ergonomist would have noticed the potential problem of the chamfered end of the TBC handle, the judge was making a finding of fact. Such findings should be made on the balance of probabilities. Here the judge appears to be saying that the ergonomist would not necessarily have noticed that problem; in other words, he was not sure that an ergonomist would have noticed it. He did not say why. It seems to me that this finding was perverse. The judge had accepted the evidence of [the Ergonomics Expert instructed by those acting on behalf of the Defendant] in general. Why he should think that she should be wrong in describing what an ergonomist would appreciate when examining this TBC, I cannot understand. There does not appear to be any basis for him to reject her evidence on this point. The evidence before him was that an ergonomist would have noticed the potential problem created by the chamfered end of the handle and would have given advice accordingly.

On the evidence before the judge, it was clear that the respondent had introduced the chamfered handle at the suggestion of two experienced drivers and had not applied its mind to the issue of whether that feature would give rise to any risk of strain injury. More importantly, in the context of this case, it had allowed its drivers to use the chamfered handle in any way they chose. No specific instruction was given as to the correct way to hold the handle so as to minimise the risk of injury. As I have said, the evidence of [the Ergonomics Expert instructed by those acting on behalf of the Defendant] was that, if professional advice had been taken from an ergonomist, the respondent would (incidentally) have been given advice about the design of the handle and (crucially for the purposes of this case) have been given advice about its use. If such advice had been taken, the risk of upper limb disorder would have been reduced. [The Ergonomics Expert instructed by those acting on behalf of the Defendant] was of the view that the drivers should have been given specific training about how to hold the handle. She said that, had she (or, I take her to mean, a similarly qualified ergonomist) been consulted, she would have described the risk of using the handle as 'medium' rather than low, precisely because the drivers had been given 'no information or training on the specifics of handle holding and use': see paragraph 48 of her report. Also at paragraph 64, [The Ergonomics Expert instructed by those acting on behalf of the Defendant] said that the drivers should have been given training on the TBC hand position from the outset. She had initially been under the mistaken impression that this training had been given but it is common ground that it had not.

My conclusion is that this respondent ought not to have put this new TBC (with the handle with the chamfered end) into service without taking advice from a suitably qualified expert, namely an ergonomist. Had it done so, it would have identified the need for the drivers to be trained in the way in which they held the TBC handle in order to minimise the risk of strain injury. The drivers would have been instructed to grasp the handle with the thumb tucked underneath. 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 the appellant was not adequate for the purposes of health and safety in breach of Regulation 9 of the 1998 regulations. Had adequate training been given, there is no reason to suppose that the appellant would not have heeded it and, in my view, the only inference which can properly be drawn is that she would probably not have developed the strain injury which she has suffered.

3.01

Provision and Use of Work Equipment Regulations 1998
Regulation 4	Allison - v - London Underground Ltd \| Find Other Cases

In the County Court Judgment on the 25th January 2007, at paragraph 5, HH Judge Cowell states:

Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 reads as follows in sub-paragraph (1):

"(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 subparagraph (4):

"(4) In this regulation 'suitable' -
(a) ... means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

I emphasise the presence there of the words "reasonably foreseeable".

At paragraphs 48 & 49, HH Judge Cowell states:

.... the other matter, as emerges from all the evidence, is whether the equipment was contrary to Regulation 4 in its design; the allegation in fact in (f) of the Particulars of Claim concerns the clockwise turning, and it seems to me that the real problem is the position of the pivot point.

So it comes to this that some improvement along the lines indicated by Dr De Mello would have been made had an ergonomic expert been employed to advise on the design. The question which arises under Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 is whether the TBC was suitable not only as a traction device with the dead man's handle operation, but also suitable in any respect which it was reasonably foreseeable would affect the health or safety of its operator. Was it reasonably foreseeable that its construction with the bevel, and with the bevel so close to the pivot point, would affect the health and safety of the operator in the respect it did? It was not actually foreseen that the bevel would be used by the thumb at its end and in no other way for much of the time, for it was not designed for the thumb or at any rate the end of the thumb, and there are powerful arguments going either way for saying that it was or was not reasonably foreseeable. It is precisely because there are such powerful arguments going each way that I have found this a particularly difficult case, and I do not want either party to consider that there was anything easy about it.

At paragraph 56, HH Judge Cowell states:

It is apparent from my general remarks that because equipment as constructed may fall short of the ideal for certain persons that training is important, for its purpose is to fit the individual to the equipment so that it is effectively used, and when used it also enhances or at least does not damage the user's health and safety, so attention must therefore focus on the training. So I am not of the view that the equipment itself breaches paragraph 4 because of the absence of reasonable foreseeability.

At paragraph 71, HH Judge Cowell states:

If I am wrong in my conclusion either in relation to Regulation 4 or Regulation 9 of the Provision and Use of Work Equipment Regulations 1998, for example if indeed there is an absolute duty on the employer to provide training in relation to the position of the thumb on the handle, then the claimant would succeed.

In the Judgment of the Court of Appeal on the 13th February 2008, having quoted the pertinent parts of regulation 4, Lady Justice Smith says, at paragraphs 14 & 15:

It was common ground that the TBC was work equipment within the regulations. The judge held that there was no breach of Regulation 4. The expert evidence accepted by the judge was to the effect that, if an ergonomist had been consulted at the time when the TBC was being designed, the design of the TBC could have been significantly improved, so as to reduce the kind of strain which occurred in this case. However, the judge held that the TBC was suitable because it had not been reasonably foreseeable, at the design stage, that this kind of problem would arise. Also, until the appellant suffered her injury, there had been no cases of tenosynovitis arising from the use of the chamfered handle so there had been no reason to consider any change to the design.

There is no appeal against the holding under Regulation 4 and, save to say that I am doubtful about the correctness of the judge's holding that it was not reasonably foreseeable at the design stage that the chamfered end would give rise to a risk of strain injury, I say no more about it. For the purposes of this appeal, Regulation 4 is only of interest because it provides a definition of 'suitable' which expressly incorporates a test of reasonable foreseeability of harm, whereas there is no definition of 'adequate' in Regulation 9 and no indication that the duty is governed by any element of foreseeability.

3.01

Provision and Use of Work Equipment Regulations 1998
Regulation 9	Allison - v - London Underground Ltd \| Find Other Cases

In the County Court Judgment on the 25th January 2007, at paragraph 6, HH Judge Cowell states:

Paragraph 9 of the Regulations, sub-paragraph (1):

"(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken".

I emphasise that under that regulation there is no such word as "reasonable".

Having concluded that the equipment itself did not breach regulation 4 of the Provision and Use of Work Equipment Regulations 1998 because of the absence of reasonable foreseeability, at paragraph 57 to 61, HH Judge Cowell states:

That is a difficult enough problem, but it seems to me the problem under Regulation 9 (and this concerns training) is if anything more difficult. By Regulation 9 it is provided that the training must be "adequate for purposes of health and safety". It is to be noticed that unlike Regulation 4 the concept of reasonable foreseeability is not apparently the test. Reasonable foresight I think I should say, as Mr Alliott pointed out, is the bedrock of tortious liability at common law, and that appears to be what lies behind Regulation 4, but statutory regulation may of course provide otherwise or provide for other concepts. The point made by Ms Newbery is that Regulation 9 is intended to impose an absolute liability, for reasonable foresight is not the test and the word reasonable or reasonably is not found in Regulation 9. I am inclined to think that it is right that reasonable foresight is not the test, or at any rate not the sole test if it plays some part, but I am also inclined to think that absolute liability in the sense that if some different training had been given which would have avoided the injury, however impossible it may have been to foresee the need for it, may not sit well with the fact that the adjective "adequate" is used. I suppose it must mean adequate in all the circumstances, and it is at this stage that the first instance judge asks, perhaps in some desperation, what that means.

On a practical level when it comes to devising the training, how can the training be fully devised except by considering what actual risks are foreseen in addition to those known from past experience, such as in this case the risk of dorsiflexion. Training must include training all shapes and sizes of drivers and some special consideration may have to be given to those whose hands are particularly small. Given that the equipment itself falls short of ideal in certain respects for different categories of user, it is difficult to be more precise than to say that a substantial burden must rest on the employer to train so that in certain respects particular training is given which is appropriate for particular categories of somewhat unusual users. It really comes to this that, if the absolute liability duty mentioned by Ms Newbery does apply then because the training did not include training on where not to put the end of the thumb, then the defendant is in breach of Regulation 9. If the test were reasonable foresight, then the defendant would not be in breach. None of the trainers themselves thought the position of the thumb to be anything more than a matter of choice for each driver. If reasonable foresight alone were the test, then there is much to be said for avoiding the consequence that Mr Alliott mentioned by the expression "damned if you do damned if you don't" and I do not draw the inference that the new warning introduced in January 2004 into the training ought by reason of reasonable foresight to have been in earlier training. It is training which may be of no consequence to some of the users.

So again it seems to me I am put into this very difficult position of deciding which of a series of powerful arguments should be preferred. Ms Newbery again says that in relation to the training the ergonomist should be called in to advise as to how drivers should operate this particular handle given its design, and an extremely powerful argument is that the implementation of advice in training so as to follow what the ergonomists advise at the training stage is far less expensive than changing the design of the TBC itself and making and installing wholly new ones, so that is a very powerful point in favour of the claimant's argument.

There are powerful arguments the other way. If the test is the adequacy of the training in all the circumstances, it seems to me that much must depend upon the employer's past experience of problems and the information the employer receives about the particular employee to be trained and the problems to be expected to confront employees of a particular category, in this case an employee of five feet one inch with a particularly small arm and a narrow hand. Here again the tides go in both directions.

It is undoubted that the employer was in this case put on notice of a problem, and it was a somewhat general problem in that the TBC was described as being too strong for the claimant. It is at this stage that I want to refer in some detail to the documents relating to the problems that the claimant had.

Having referred to the documents, HH Judge Cowell states, at paragraph 69:

It does seem to me that the two memoranda or documents of 18th July 2000 and 14th September 2001 do not alert the employer to the particular problem of potential injury to the tendon in the wrist, rather they suggest that the shoulder is or has been a problem and may even deteriorate, but that driving Jubilee Line trains is no problem. That, it seems to me, is an important circumstance indicating that the absence of training about where to put the thumb or the end of the thumb does not make the training inadequate in relation to the claimant. That important circumstance together with the absence of reasonable foresight of the particular injury leads me to conclude, balancing the opposing arguments, that the training was adequate in all the circumstances. I have to say I reach that conclusion with no great confidence, but conclude I must one way or the other, the test to be applied depending on the adjective "adequate" which is a word of wide meaning.

At paragraph 71, HH Judge Cowell states:

In the Judgment of the Court of Appeal on the 13th February 2008, having quoted the pertinent parts of regulation 9 at paragraph 1, Lady Justice Smith goes on to say:

The first issue in the appeal is whether or not the duty imposed by Regulation 9 is absolute, and does not require the proof of any fault on the part of the employer. Should the adequacy of the training given to an employee be judged by the result in the light of events or should it, as the judge held, be assessed in the light of what the employer knew about the risks at the time, even though, in the light of later events, it could be seen that the training had been inadequate? If neither of those tests is correct, what is the correct test? The judge held that the duty was not absolute but required the employer to provide such training as was 'adequate in all the circumstances' - the circumstances including, as he put it, 'notions of foreseeability'. The judge recognised that a difficult question of construction arose and gave permission to appeal.

Lady Justice Smith then says at paragraphs 16 to 20:

Turning to Regulation 9, the judge observed that it was difficult to construe the meaning of training which is 'adequate for the purposes of health and safety'. He noted the absence of any qualifying words relating to foreseeability such as were present in Regulation 4. He briefly rehearsed the submission advanced by counsel for the claimant [at first instance], that the duty to provide adequate training was strict or absolute and that the test did not depend upon reasonable foreseeability. Her submission was that, in the light of the development of the claimant's tenosynovitis, it could now be seen that, if the claimant had been trained not to rest her thumb on the chamfered end of the handle, she would not have suffered injury. It mattered not whether the employer could not have reasonably foreseen the need to provide that particular element of training.

The judge was not attracted by that submission. At paragraph 57 of his judgment, he said:

"I am inclined to think that it is right that reasonable foresight is not the test, or at least not the sole test if it plays some part, but I am also inclined to think that absolute liability in the sense that if some different training had been given which would have avoided the injury, however, impossible it may have been to foresee the need for it, may not sit well with the fact that the adjective "adequate" is used. I suppose it must mean adequate in all the circumstances, and it is at this stage that the first instance judge asks, perhaps in some desperation, what that means."

The judge then embarked on a consideration of 'all the circumstances'. The submission [by Counsel for the Claimant at first instance] had been that, if her primary submission were rejected, the test for adequacy of training should be based on what the employer knew or ought to have known was required. She had argued that the employer ought to have consulted an ergonomist to advise on the training to be given to drivers on the Jubilee Line. That should have included training on the operation of the TBC. However, the judge's view was that it would be impossible for an employer to devise training except by reference to the actual risks foreseen and those recognised from past experience. By implication although not expressly, he rejected the submission [by Counsel for the Claimant at first instance] that the test of adequacy should be by reference to what the employer ought to have appreciated or foreseen as to the risks entailed in the use of the TBC. He did not consider whether the risk assessment (by which the risks might have been recognised) had been sufficient and suitable. Instead, the judge focussed on the need for training to give special consideration to the needs of different 'shapes and sizes' of drivers. Within paragraph 58, he opined that

"... a substantial burden must rest on the employer to train so that in certain respects particular training is given which is appropriate for the particular categories of somewhat unusual users. It really comes to this that, if the absolute liability duty mentioned by [Counsel for the Claimant] does apply then because the training did not include training on where to put the thumb, then the defendant is in breach of Regulation 9. If the test were reasonable foresight, then the defendant would not be in breach. None of the trainers themselves thought the position of the thumb to be anything more than a matter of choice for each driver."

Pausing there, I cannot myself understand the relevance of what the trainers thought about the position of the thumb. The trainers were employees such as the appellant; drivers who had been trained to train others. Unless they had been instructed to advise trainees about where to put their thumbs, there was no reason why they would be any better informed than any other driver. At paragraph 59, the judge continued:

"If the test is the adequacy of the training in all the circumstances, it seems to me that much must depend upon the employer's past experience of problems and the information the employer receives about the particular employee to be trained and the problems to be expected to confront employees of a particular category, in this case an employee of five feet one inch with a particularly small arm and a narrow hand."

The judge then embarked on a lengthy consideration of the appellant's previous problems in connection with her shoulder strain while driving on the Northern Line (apparently caused by the spring-loaded mechanism of the TBC being 'too strong' for her), her transfer to the Jubilee Line and her subsequent supervision by the Occupational Health Department. By 2002, the appellant had told the employer that driving Jubilee Line trains was not a problem. At paragraph 69 of the judgment, the judge continued:

"That, it seems to me, is an important circumstance indicating that the absence of training about where to put the thumb or the end of the thumb does not make the training inadequate in relation to the claimant. That important circumstance together with the absence of reasonable foresight of the particular injury leads me to conclude, balancing the opposing arguments, that the training was adequate in all the circumstances."

In short, the judge held that the training had been adequate because it had been adequate to deal with the risks which the employer had actually foreseen.

Lady Justice Smith then considers the Appeal submissions, at paragraphs 24 to 30:

The appeal is based only on the judge's finding under Regulation 9. [Leading Counsel] for the appellant advanced two arguments in the alternative. First, he submitted that the duty under Regulation 9 of the 1998 Regulations is strict or absolute and not dependent on the proof of any fault. The duty is to ensure the provision of adequate training. The word 'ensure' makes it plain that the duty is strict and is not subject to any defence of reasonable practicability. In the context of this regulation, 'adequate' means 'sufficient'; that is sufficient to produce the desired effect or result. The judge appeared to think that 'adequate' carried a connotation of being 'less than ideal' or 'barely sufficient' or 'just about enough' as it often does in common parlance. In that respect, he was wrong. Further, adequacy is not qualified by any concept of foreseeability. The question for the judge should have been whether the training was in fact adequate, not whether it was adequate in the light of what the employer had (or even ought to have) appreciated beforehand. The judge had applied the wrong test. If the correct test had been applied, the appellant would have succeeded. She had not been trained not to put her thumb on the chamfered end of the handle. She suffered an injury as the result of putting her thumb there. If she had been trained not to, she would not have suffered the injury. Therefore her training had been inadequate for health and safety purposes.

[Leading Counsel] for the respondent, submitted that Regulation 9 did not impose strict or absolute liability on the employer - in the sense that it was to be judged by reference to the result and there was liability for acts or omissions to which no fault could attach. He submitted that, although it exists, such liability is a most unusual feature in English jurisprudence. That is as it should be, because criminal liability attaches to all breaches of the regulations made under the Health and Safety at Work Act 1974, as these regulations were. So unusual is absolute liability that clear words must be used to impose it. Regulation 9 does not clearly impose absolute liability. The regulation must be read in the light of the provisions of Council Directive 89/391/EEC (the Framework Directive) and Council Directive 89/655/EEC (the Work Equipment Directive). The 1998 Regulations with which we are concerned had replaced similar regulations issued in 1992 which had been enacted to implement these two Directives. Both the Framework Directive and the Work Equipment Directive contained articles governing the provision of training for employees. Before 1992, there had been no statutory provisions in the UK governing training requirements. Thus, Regulation 9 must have been intended to comply with the Directives. The Directives did not impose any requirement on Member States to impose absolute liability on employers and there was no warrant for the notion that the UK Parliament might have intended to impose a more onerous duty on employers than was required by the Directives.

[Leading Counsel for the Appellant] cited to us the case of Dugmore v Swansea NHS Trust and another [2002] EWCA Civ 1689, a case involving the Control of Substances Hazardous to Health Regulations 1998 (the COSHH regulations), where, he submitted, the Court of Appeal had held that Regulation 7(1) imposed an absolute, no-fault, liability on an employer, where the duty required the employer to ensure that the employee's exposure to hazardous substances was 'adequately controlled'. He submitted that this authority supported his proposition that 'adequacy' was to be judged by the result and not by any notion of foreseeability. [Leading Counsel for the Respondent] submitted that the COSHH regulations were very different from the 1998 Regulations under consideration here and that no analogy could safely be drawn. I will consider this case in greater detail below.

[Leading Counsel for the Appellant] also drew to our attention the case of Stark v Post Office [2000] ICR 1013, a case under Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992. That required an employer to 'ensure that work equipment was maintained in an efficient state, in efficient working order and in good repair'. The claimant had been injured due to a latent defect in the bicycle provided by his employers. The Court of Appeal held that the duty to ensure that the bicycle was in an efficient state was an absolute one, in which the claimant had only to prove that he had been injured as the result of the defect and did not have to prove that the employer could or should have discovered and remedied the defect. Equally, it was not open to the employer to escape liability by showing that, even by the exercise of all due care, he could not have discovered the defect. This was an example of 'no-fault' liability. As I have said, the 1992 regulations were the predecessors to those of 1998. Regulation 6(1) of 1992 is replicated in Regulation 5(1) of the 1998 Regulations. [Leading Counsel for the Appellant] submitted that the provision under consideration in Stark was closely related to Regulation 9. Parliament was plainly willing to impose no-fault liability within these regulations. If it was willing to do so in what is now Regulation 5, why not in Regulation 9? However, it does not seem to me that Stark is of any assistance. True, it is an example of no-fault liability. But merely because one provision within a set of regulations imposes no-fault liability does not mean that another provision will also do so unless there is a real similarity between the words of the two provisions. Here the only similarity is that the words 'shall ensure' appear. That, submits [Leading Counsel for the Appellant], connotes a mandatory requirement. I agree but those words do not help to establish the extent of the mandatory requirement. In Stark the duty was to ensure that work equipment was maintained in an efficient state etc; that is an absolute duty. But in Regulation 9, the duty is to ensure that adequate training is provided. The question is the meaning of adequate and Stark does not help on that. In any event, as between employer and employee, there had been longstanding no-fault liability on employers for the provision of defective equipment and it is entirely understandable that Regulation 5 of 1998 should impose no-fault liability on the employer.

The alternative submission [of Leading Counsel for the Appellant] was that, if the judge was right to hold that liability under Regulation 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. Although the judge had said that the test of adequacy should not be dependent upon reasonable foreseeability, that was the test he had in fact applied. He had not dealt with the submission of [Counsel for the Claimant] that the employer ought to have consulted an expert ergonomist when thinking of modifying the handle in accordance with the suggestion of the two drivers involved in the consultation. [The Ergonomics Expert instructed by those acting on behalf of the Defendant] had said that if the employer had sought advice from an ergonomist, it would have been given advice about the design of the handle and its use. [Leading Counsel for the Appellant] submitted that, had the judge considered the point, he would have been bound to conclude that the respondent should have sought professional advice. It had recognised the need to consult an ergonomist about some aspects of the design (such as the position of the arm rest). It had done that because it recognised the risk of strain injuries from the prolonged use of a TBC. It should also have consulted about the design and use of the handle itself. If it had done so, it would have been advised of the risk of thumb strain if the thumb were placed on the chamfered end for long periods. The need for training on that risk would have been recognised. The failure to consult an ergonomist had resulted in the modification being made and no training being provided as to the manner in which the handle was to be held. Liability must follow. [Leading Counsel for the Respondent] submitted that the judge had applied the right test and, on applying the test to the facts as found, had reached the correct conclusion.

There follows an extensive discussion of absolute/no-fault or strict liability, which concludes at paragraph 54 in which Lady Justice Smith says:

I return to Regulation 9 and the attempt to construe the respondent's duty 'to ensure' that the appellant was given 'adequate training for the purposes of health and safety'. I accept that the words 'to ensure' imply a mandatory duty. However, in the context of this regulation, I do not think that they mean anything more than that the duty to provide training is mandatory. The employer cannot say that it was too expensive or too time-consuming or not reasonably practicable to provide training. He must provide training. Also, the training must be adequate. I accept the submission [of Leading Counsel for the Appellant] that, if the judge thought that the use of the word adequate was intended to imply something 'barely sufficient' or 'just about enough' that would be wrong. But I do not think that the mere fact that the duty to train is mandatory raises the meaning of 'adequate' to the high level which [Leading Counsel for the Appellant] contends for. Thus, I conclude that the judge was right to reject the primary submission [of Counsel for the Claimant] and I would reject the submission [of Leading Counsel for the Appellant] that the regulation imposes 'no-fault' liability.

Lady Justice Smith then discusses the test to be applied to Regulation 9, at paragraphs 55 to 59:

What then is the extent of the liability? The judge said that adequate training meant 'adequate in all the circumstances' and imported some element of foreseeability into the test. The problem with that formulation is that, as the judge himself recognised, it is not at all clear. There must be a clearer way of expressing the duty to provide adequate training of the purposes of health and safety. Also, in my view the test formulated is not the correct test. In my judgment, the test for the adequacy of training for the purposes of health and safety is 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 is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary. That was the thrust of the submission of [Counsel for the Claimant] as I set it out in paragraphs 17 and 21 above. I think that her submission was correct. This formulation of the test is consistent with the test applied by this Court in Dugmore.

It follows from my conclusion that the judge applied the wrong test that I will not have to consider in detail the way in which the judge applied his test to the facts. Suffice it to say that I consider that there was much force in the submission [of Leading Counsel for the Appellant] that, although the Judge warned himself that the test should not be the same as common law negligence, he did in fact apply the common law test.

Lady Justice Smith then says, at paragraphs 61 to 65:

[The Ergonomics Expert instructed by those acting on behalf of the Defendant] said that, if the respondent had employed an ergonomist 'to look at the specifics of the handle design and operation, it would have received advice which would have led it to change both the handle design and operation (my emphasis). This would have reduced the risk of injury'. The judge commented on that statement as follows, at paragraph 55: "I am reluctant to accept that the use of ergonomists when the TBC was designed would necessarily have resulted in their noticing that the bevel might be used by the end of the thumb, which would be a bad thing, as opposed to its being against some other part of the grip of the user's hand". In so far as the judge there appears to be rejecting the statement of [the Ergonomics Expert instructed by those acting on behalf of the Defendant] about what an ergonomist would have noticed, I do not think he was entitled so to do. Of course, a judge is entitled to reject part of the evidence of a witness, including an expert witness, even though he accepts most of it. However, in this case the judge did not apply the correct test; nor did he give any reasons for rejecting this aspect of evidence of [the Ergonomics Expert instructed by those acting on behalf of the Defendant]. In considering whether an ergonomist would have noticed the potential problem of the chamfered end of the TBC handle, the judge was making a finding of fact. Such findings should be made on the balance of probabilities. Here the judge appears to be saying that the ergonomist would not necessarily have noticed that problem; in other words, he was not sure that an ergonomist would have noticed it. He did not say why. It seems to me that this finding was perverse. The judge had accepted the evidence of [the Ergonomics Expert instructed by those acting on behalf of the Defendant] in general. Why he should think that she should be wrong in describing what an ergonomist would appreciate when examining this TBC, I cannot understand. There does not appear to be any basis for him to reject her evidence on this point. The evidence before him was that an ergonomist would have noticed the potential problem created by the chamfered end of the handle and would have given advice accordingly.

V3.02

Last updated: 14/05/2013

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