Court of Appeal considers meaning of ‘adequate’ in COSHH and PUWE Regs

In Allison v London Underground Ltd, the Court of Appeal holds that the statutory duty for an employer to “ensure that all persons who use work equipment have received adequate training”, set out in reg. 9 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) (“the 1998 Regulations”), imposed strict liability for an upper limb disorder sustained as a result of inappropriate use of a train brake control device.

The test for the “adequacy” of training for the purposes of health and safety, the Court of Appeal stated, 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. This is a higher duty than the employer’s common law duty of care to take reasonable steps not to cause reasonably foreseeable harm. It is a form of strict liability, in the same way that under the Control of Substances Hazardous to Health (COSHH) Regulations the duty to “adequately control” exposure is not limited by any reference to the reasonable foreseeability of risk. It includes a duty to investigate the risks inherent in the employer’s operations, taking professional advice where necessary.

The facts

Ms Allison worked for London Underground Ltd (“LUL”), and from 1998 moved from her role as a guard to driving Tube trains. She was a physically small woman, with shorter than average arms and small hands. Within a few months of driving trains, Ms Allison developed a shoulder strain as a result of using the traction brake controller (“TBC”). Consequently, she was moved to a different line, which ran more modern trains, in an effort to relieve her of her difficulties with the TBC of the older trains. By 2001, her progress was such that she could be declared fully fit and she returned to full duties.

The TBC on the newer trains worked by means of a cylindrical metal handle. That handle was only five inches long and an inch across, and was located directly in front of the right-hand arm-rest of the driver’s seat. In order to release the brakes and allow the train to move, the handle had to be turned clockwise through 90 degrees, and to accelerate the handle had to be pushed forwards. If the driver let go of the handle, it would return automatically to its default position, thereby applying the brakes. Typically in a normal shift a tube driver would be engaged in applying near constant pushing and twisting pressure to the handle for four or five hours.

The end of the TBC handle on the newer trains was sloped, at an angle of about 45 degrees. Ms Allison would commonly rest the thumb of her right hand on the sloped end. Indeed, she believed that the sloped end had been specifically designed for that purpose. Other, male, drivers with bigger hands did not do this, instead gripping the handle with their thumb underneath it. The decision as to how to grip the handle was taken by each driver according to what was most comfortable to him or her – no specific instructions had been given by LUL in this regard.

By 2003, Ms Allison’s problems returned when she developed tenosynovitis in her right wrist and hand. Ironically, this was caused by the different type of TBC found in the more modern trains she had been moved to, and the unusual way in which she held and operated the TBC handle.

In 2004, LUL started to instruct drivers not to hold and operate the TBC handle in the way that Ms Allison had done. This was too late for Ms Allison, however, who commenced proceedings in the County Court to recover compensation in respect of her injury.

County Court dismisses claims

Before the County Court, Ms Allison made two key contentions. First, that LUL had failed to carry out a proper risk assessment in relation to the ergonomics of the TBC. The duty to carry out a risk assessment in relation to employees is contained in reg. 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (“the 1999 Regulations”). Second, Ms Allison argued that LUL had failed in its obligation under reg. 9 of the Provision and Use of Work Equipment Regulations 1998, to “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.”

His Honour Judge Cowell held that LUL’s training in how to hold and operate the TBC handle was “adequate” in that it was enough to prevent the risks that LUL had foreseen. Since LUL could not at the design stage have foreseen the risk of injury to Ms Allison in holding and operating the TBC handle in the way she did, then LUL could not be in breach of reg. 9. In reaching this conclusion, the judge explicitly rejected a submission that it did not matter whether or not the employer could have reasonably foreseen the need to provide a particular element of training on how to position one’s thumb when operating the TBC handle.

With regard to the allegation of breach of reg. 3 of the 1999 Regulations, the judge held that in light of his finding that the training given by LUL was adequate, this claim had to fail as well. The reg. 3 requirement to carry out a risk assessment involved the same analysis as the duty to provide adequate training: if the training needs are identified by the risk assessment and training is provided in accordance with the risk assessment, then the risk assessment could never be any less good than the training provided pursuant to it. Therefore, since the judge had already found the training provided by LUL to be adequate, it followed that he could not find any breach of the reg. 3 duty either. Consequently, the claim was dismissed. Ms Allison appealed to the Court of Appeal.

Court of Appeal allows appeal

Ms Allison argued her appeal on the basis that the County Court judge had misdirected himself on the law in reaching his decision. He had erred in particular with regard to the question under reg. 9 of the 1998 Regulations, by failing to apply a test of “no-fault” liability. In the alternative, he had erred by importing into the test for whether the training provided had been “adequate” the concept of reasonable foreseeability, and by failing to find that LUL should have sought expert advice about the TBC design.

Lady Justice Smith, giving the judgment of the Court, first of all accepted that the requirement to provide training was a mandatory requirement, which had to be complied with irrespective of the employer’s available resources. This did not mean that a test of “no-fault” liability applied, however. Rather, Smith LJ agreed with Ms Allison’s alternative argument, and was satisfied that the County Court judge had applied the wrong test. Smith LJ said: “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 this risks inherent in his operations, taking professional advice where necessary.”

In Smith LJ’s view, this formulation of the test was consistent with the test applied by the Court of Appeal in Dugmore v Swansea NHS Trust2, in relation to a different set of Regulations. That case concerned a claimant who had become allergic to latex gloves during her work as a nurse. Medical journals had reported that there was a risk of allergy to latex, at a time before the claimant developed her allergy. She suffered an extreme reaction, as a result of which she was supplied with vinyl gloves. She then changed employer and informed her new employer of her allergy. Nonetheless, she suffered an anaphylactic shock when working for the new employer, after picking up an empty box that had once contained latex gloves. She brought a claim in negligence and under reg. 7(1) of the COSHH Regulations. That regulation requires employers to ensure that the exposure of its employees to a substance hazardous to health is either prevented or, where that is not reasonably practicable, “adequately” controlled.

The claims in Dugmore were dismissed at first instance, the judge considering in relation to the claim under the Regulations that there had been no duty of adequate control because the need for such control could not have been reasonably foreseen. In other words, the judge applied the common law test of reasonable foreseeability. While the Court of Appeal agreed that the need for such control could not have been reasonably foreseen (and that the judge had therefore been correct to dismiss the common law negligence claim) it allowed the appeal against dismissal of the claim under the COSHH Regulations. Lady Justice Hale held that the duty to ensure that exposure is “adequately” controlled under the COSHH Regulations was not limited by any reference to the reasonable foreseeability of risk: the adequacy of control “is a purely practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else.”

While Smith LJ in Allison did not consider Dugmore to be binding on her (because it concerned a different set of Regulations), by analogy she was persuaded to take the same approach as Hale LJ to the meaning of the word “adequate”. Consequently, Smith LJ held in Allison that the judge had applied the wrong test in relation to Ms Allison’s claim under the 1998 Regulations, and that the appeal would have to be allowed.

Having reached that conclusion, Smith LJ went on to give some guidance to courts having to determine the question of what the employer ought to have known about the risks inherent in its 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 reg. 3 of the 1999 Regulations. 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.”

In this case, Smith LJ considered that a proper assessment of the risk of developing an upper limb disorder from extended use of the TBC handle with its sloped end, was likely to be beyond the capabilities of anyone other than a professional ergonomist. This employer ought to have sought the advice of such a professional in the course of conducting its risk assessment under reg. 3 of the 1999 Regulations. It did not do so, even though it was aware of the risks of strain injury arising from the use of TBCs. Indeed, an expert report prepared by an ergonomist for the County Court hearing clearly indicated that if an ergonomist had been consulted at the outset, recommendations would have been made that the design and operation of the TBC handle ought to have been changed in order to avoid the risk of injury.

In light of that evidence (which the County Court judge had wrongly rejected) and of the evidence that no specific instructions had ever been given to any drivers as to the safe operation of the TBC handle, it was impossible to conclude that “adequate” training had been provided for the purposes of reg. 9 of the 1998 Regulations. LUL should not have put this “sloped” TBC handle into operation without first seeking the advice of a qualified expert, ie an ergonomist. If it had done so, as part of its obligations under reg. 3 of the 1999 Regulations, it would have identified the risks and would have provided the specific instructions required, and Ms Allison probably would not have developed her injury.

Lord Justice Hooper and Sir Anthony Clarke MR agreed, and the appeal was allowed.

By Douglas Leach,Barrister, Queen Square Chambers

Comments are closed.