WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of Health and Safety Regulations - Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd
| Management of Health and Safety at Work Regulations 1999 | |
|---|---|
| Regulation 3 | Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd | Find Other Cases |
In the County Court Judgment on the 30th November 2009, at paragraph 216, HH Judge Vosper QC states:
The essence of the Claimants' case is that the Defendant should have carried out a risk assessment in respect of the work of driving these trains. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 impose a requirement on an employer to carry out a risk assessment of the risk to the health and safety of his employees while they are at work and to review it if there is reason to suspect that it is no longer valid or if there has been a significant change in the matters to which it refers. However Regulation 22 as originally drafted and so far as is relevant to these cases provided that breach of Regulation 3 does not confer a right of action in civil proceedings. The 1999 Regulations are therefore not relied upon directly by the Claimants.
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| Provision and Use of Work Equipment Regulations 1998 | |
|---|---|
| Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd | Find Other Cases | |
In the County Court Judgment on the 30th November 2009, at paragraph 217, HH Judge Vosper QC states:
Instead the Claimants rely upon breaches of Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998. Where material they provide as follows:
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.
(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.
(4) In this regulation 'suitable'-
(a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person...
8. Information and Instructions
(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment...
(3) Without prejudice to the generality of paragraphs (1) and (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on-
(a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur;
(c) any conclusions to be drawn from experience using the work equipment.
(4) Information and instructions required by this regulation shall be readily comprehensible to those concerned.
9. Training
(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.
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| Provision and Use of Work Equipment Regulations 1998 | |
|---|---|
| Regulation 4 | Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd | Find Other Cases |
In the County Court Judgment on the 30th November 2009, at paragraph 218, HH Judge Vosper QC states:
With respect to Regulation 4 the Defendants submit that, in accordance with the guidance of Pill LJ in Yorkshire Traction Co Ltd v Searby [2003] EWCA Civ 1856, regulation 4 does not require complete and absolute protection from all foreseeable risks. The lay and engineering evidence tends to show that the units were suitable in that they were suitable in all respects in which it was reasonably foreseeable that that they would affect the health and safety of any person as required by Regulation 4(4).
After reviewing various legal precedents, some of which refer to the Framework Directive and the Work Equipment Directive, at paragraphs 222 & 223, HH Judge Vosper QC states:
In my judgement the Claimants' submissions with respect to Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 are correct. Adopting the approach of Lord Hope in Robb v Salamis, there was a duty upon the Defendant to assess the risk to its drivers of the act of driving the trains it provided. The risk assessments carried out by the Defendant did not consider that risk and were performed by staff who had not been trained to consider the ergonomic risks. I do not accept that the risk of upper limb disorder was so small that no risk assessment was necessary. Nor do I consider as determinative of the extent of the Defendant's duty the fact that the trains are standard units in use throughout the rail network since at least 1990, in respect of which the Claimants cannot show that the Defendant knew of any similar complaint before these claims were brought. The experts in ergonomics and engineering agree that simple observation of the manner of driving of the Claimants (and by inference at least some of the other 52 drivers employed at Carmarthen) would have been sufficient to alert the Defendant to the risk, provided that the observation was, as it should have been, carried out by someone with the requisite experience.
The duty is a continuing one. The date upon which each train was put into service by the Defendant is not known. However the Defendant should have carried out a risk assessment at the time when the train was put into service or at the time when the duty imposed by the Regulations (or their predecessor: Regulation 5 of the PUWE Regulations 1992 is in identical wording) first applied to it. I conclude, therefore, that the Defendant was in breach of Regulation 4 of the PUWE Regulations 1998.
At paragraphs 228 & 229, HH Judge Vosper QC states:
I accept the evidence of [the Expert Ergonomist instructed by the Claimants] that an ergonomist would have identified that the seats and armrests on the older trains (that is other than the 175 unit) were not suitable within Regulation 4(4) of PUWE Regulations 1998. He would have recommended that the seats be improved to permit better adjustment, that they be fitted with armrests which support the arms during movement of the levers and that the drivers be trained about the risks of upper limb disorder and how to avoid it. I accept that the fact that the seats could not be properly adjusted is a factor in the causation of the CTS which the Claimants developed. The Claimant's posture in leaning forward contributed to their wrists resting on the edge of the driving desk and to the increased extension of the wrist. Further I accept that proper armrests could have alleviated the problem in the way described by [the Medical Expert instructed by the Claimants]. No evidence has been adduced by the Defendant to suggest that for cost or any other reason improved seats and/or armrests could not have been fitted. On the contrary the Defendant has pursued a programme with respect to some trains of replacing the old seats.
But even in the absence of changing the seats or armrests, the Defendant could, as an interim measure, have disseminated information to its drivers about the need to avoid resting the wrists on the edge of the driving desk for long periods and to avoid extension of the wrists when holding the controls. I am satisfied that any of these steps would have prevented the Claimants' CTS.
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| Provision and Use of Work Equipment Regulations 1998 | |
|---|---|
| Regulations 8 & 9 | Thomas, Studholme & Rogan -v- Arriva Trains Wales Ltd | Find Other Cases |
In the County Court Judgment on the 30th November 2009, at paragraphs 230 to 232, HH Judge Vosper QC states:
Although the Claimants rely also upon Regulations 8 and 9 of the PUWE Regulations 1998, I was initially disinclined to make any specific findings in respect of them because it seemed to me that they added nothing to the claim in the light of my findings and conclusions set out. However both counsel have asked me to make findings with respect to Regulations 8 and 9 and therefore I will do so.
In their submissions both counsel have dealt with Regulations 8 and 9 together. Regulation 8 imposes upon an employer a duty to ensure that a person using work equipment has adequate health and safety information pertaining to the work equipment. Regulation 9 imposes a duty to ensure that a person using work equipment has received adequate training for the purposes of health and safety. In the context of this case the relevant information is that operating the controls of a train may cause upper limb disorder if carried out in a way which puts pressure on and/or involves flexion of the wrist. Relevant training is training showing how to operate the controls in a manner which does not have those features. This information and training are so interconnected that it is impossible to conceive of their being provided separately.
In Allison v London Underground Limited [2008] EWCA Civ 71 Smith LJ said at paragraph 55:
"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."
At paragraph 57 Smith LJ said:
"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 [Management of Health and Safety at Work Regulations1999]. 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."
It follows from my findings with respect to the evidence of [the Expert Ergonomist instructed by the Claimants] and [the Expert Engineer instructed by the Defendant] in relation to Regulation 4 of the PUWE Regulations 1998 that, had the Defendant carried out a risk assessment of the ergonomics of the cabs of its older trains, as it should have done, it would have received advice not only with respect to improvement of the seats and armrests, but also with respect to training and instruction. It should have followed that advice. If it had done so, it would have provided information and training sufficient to comply with the obligations imposed upon the Defendant by Regulations 8 and 9. Accordingly breaches of Regulations 8 and 9 are proved in these cases just as the breach of Regulation 4 is proved and upon the same evidence.
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Last updated: 14/05/2013