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Brookes v South Yorkshire Passenger Transport Executive and Others, Court of Appeal, 28 April 2005

5 May 2005
The issues

VWF – Vibration White Finger – HAVS – Hand Arm Vibration Syndrome – Period Over Which Employer Had Constructive Knowledge Of Risk Of Harm – Effect On Damages Where Claimant Was Exposed To Harmful Vibration Through The Whole Period Of His Employment Including Period Prior To Period Of Constructive Knowledge

The facts

The Claimant was born in 1946 and was a Fitter all his working life. Between 1961 and 1982 he worked for various employers but did not use vibrating tools with any regularity. He joined South Yorkshire Passenger Transport Executive as a Fitter in 1982. His work entailed the regular use of vibrating tools. In 1986 the business was taken over by Mainline Group Limited. The Claimants work continued as before. In the winter of 1999 he noticed blanching of the tip of the ring finger of his left hand which progressed so over the next few months to affect the middle and ring fingers. He was diagnosed as suffering vibration white finger or hand/arm vibration syndrome (HAVS).

The Recorder at Trial found that the Defendant had negligently exposed the Claimant to harmful vibration throughout the whole course of his employment. The Defendant appealed.

The decision

There was insufficient evidence to support the conclusion that the Defendant should have been aware of the British Standards Institution publication draft for development – Guide to the Evaluation of Exposure of the Human Hand Arm System to Vibration” known as DD43 in 1975 or even shortly thereafter. DD43 did not promulgate a British Standard but gave provisional advice and called for the contributions to the advancement of knowledge on the subject of VWF. In the absence of evidence the Court could not properly infer that DD43 must have been widely discussed at health and safety conferences or written about in trade journals which the Defendants ought to have read and heeded.

By 1987 the situation was different. In that year BS6842 was published which promulgated a British Standard. An organisation of the size and with the resources of the Defendants ought in compliance with its duty as employer to keep reasonably abreast of developments relevant to the welfare of its employees, to have knowledge of BS6842 at or shortly after publication.

At that point it would have been reasonable to have expected the Defendants to have investigated the extent of the fitter’s exposure to vibration and to have instituted remedial measures within 2 years of learning of the potential risk. From 1989 onwards the Defendants therefore were liable in negligence to the Respondent.

The Defendants argued relying on Allen v British Rail Engineering Limited that there should be reduction of the damages of the Claimant on the basis that part of his exposure was non negligent. The Claimant had argued that there should be no reduction on the basis that if the Defendants had complied with their duty the Claimant would probably never have had any symptoms at all and that moreover it was not open to the Judge to make a sensible assessment to the extent of the effects of the exposure before and after the date at which negligence began because there was no proper evidence on the point and that the burden of producing that evidence lay on the party seeking to justify the reduction namely the Defendant. The Court agreed that there was no evidential basis to justify any reduction of its damages to take account of the latent damage he had suffered before 1989.

The evidence went no way to laying the necessary evidential basis.

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