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Dugmore v Swansea NHS Trust (1) & Morriston NHS Trust (2), Court of Appeal

27 November 2002
The issues

Control of substances hazardous to Health Regulations 1988 – control of substances hazardous to Health Regulations 1994 – COSHH – latex protein.

The facts

The Claimant, who was 34 and was employed as a Nurse by the First and Second Defendants successively, had been employed from 1990 to December 1996 as a Nurse at Singleton Hospital and thereafter at Morriston Hospital. She developed a type 1 allergy to latex protein (caused by wearing powdered latex gloves) at Singleton. She claimed this happened in July 1993 and the Judge found that it certainly had happened by 1994 or 1995. By June 1996 she suffered a serious reaction. This caused her to be off work. When she came back she was given vinyl gloves. When she moved to Morriston she told the Occupational Health Department of the allergy and was given vinyl gloves there. In December 1997, whilst picking up an empty box, she suffered an anaphylactic attack.

The Judge found that the date of knowledge for both Defendants of the risk that latex gloves could cause sensitisation and give rise to skin problems was 1st January 1997 and that it was not practicable to prevent all exposure to latex in hospital. The Claimant had been advised by the Second Defendant to transfer to as latex free an environment as possible but she had shown herself anxious to continue in her career as a Nurse and a willingness to take the risk of carrying on. The Judge dismissed her claim. The Claimant appealed.

The decision

1. Date of knowledge. In April 1996, the Medical Devices Agency had issued a bulletin “latex sensitisation in the healthcare setting (use of latex gloves)”. They recommended a policy of disseminating information encouraging staff to seek guidance and making adequate occupational health facilities for staff to provide alternatives to latex based devices as necessary. There was no authoritative guidance prior to April 1996 in the United Kingdom.

There was no desensitising procedure known. Dr. White who gave evidence described it as “like falling off Beachy Head”. Dr. White gave evidence to the effect that Dermatologists might have been expected to be aware of the problem round about June 1996, the date of the Claimant’s first severe reaction. There was evidence that staff at Singleton knew of the risks resulting from allergy to latex gloves in June 1996 since the records noted her condition as being “probably from latex gloves”.

At the date when the Claimant developed her allergy (1993-1994) there was only “world literature”. Whilst it might be accepted that healthcare employers were in a different position from others and might be expected to take action before official guidance was offered, it would have nevertheless been difficult for the Judge to have concluded that the employer should have known earlier than 1996 that this was a risk against which they should take action for the purposes of the law of negligence.

2. The Coshh Regulations. Regulation 7 was to the effect that “every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled”. The primary duty was to prevent exposure altogether. Where prevention was not reasonably practicable, the secondary duty was to adequately control the exposure.

Adequately is defined in the same way in both 1988 and 1994 Regulations, namely having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health. The only relevant factors were the nature of the substance and the nature and degree of exposure. There was no reference to the reasonable foreseeability of the risk. Foreseeability was not therefore something that the Claimant had to show. The Defendant on the other hand might rely on lack of foreseeability as a factor in the consideration of whether reasonably practical precautions had been taken.

The duty in Regulation 7 was an absolute duty to ensure that exposure was prevented or controlled subject only to a defence of reasonable practicability which qualified only the duty of total prevention.

3. Morriston. Withers -v- Perry Chain approved “there is no duty at common law to sack an employee with a particular sensitivity who wants to take the risk of carrying on working in what is for others a reasonably safe environment”. The Claimant had been given tests and advice, but was anxious to carry on. The probability was that even if her problem had been better recognised she would still have been working at Morriston in December 1997 and that no amount of warning would have kept her away. The failure to warn her therefore could not have caused the accident to happen. Appeal allowed as against Swansea NHS Trust in respect of Singleton’s breach of Regulation 7. Appeal dismissed as against Second Defendant.

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