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Allison v London Underground Ltd, Court of Appeal, 13 February 2008

29 February 2008
The issues

Health & Safety – training – provision and use of Work Equipment Regulations 1998 Reg. 9 – PUWER 1998 Reg. 9.

The facts

The Claimant worked for London Underground as a driver. She developed a shoulder strain related to her task of handling the Traction Brake Controller (TBC) which drove the train. In July 1999, on her return to work, she was transferred to the Jubilee line where the rolling stock was more modern and where it was thought the TBC would be more suitable for her. She was declared fit for full duties in September 2001, by which time she had been trained to train other drivers and her work comprised a mixture of ordinary driving and training. In 2003 she developed tenosynovitis of the right hand and wrist which it was accepted was due to strain from the prolonged use of the TBC. She had not recovered from that condition and was unfit for work as a driver. The TBC used on the Jubliee line trains had a particular feature. The handle was “chamfered” or “bevelled”. This design feature had been introduced at the suggestion of two experienced drivers, consulted at design stage, because it was thought that it would be more comfortable for them when grasping the handle. The modification of the design was not the subject of any expert advice, either at design stage or when it was put into use. The Claimant was a short woman with short arms and small hands and when driving she found it natural and comfortable to rest her thumb across the chamfered end of the handle. Most of the drivers, whose hands were larger, did not rest their thumbs against the end but tucked them underneath the handle. No special instructions were given to the drivers on the point. The Claimant developed a tenosynovitis and it was common ground that the injury was caused by the position in which she held her thumb while applying pressure to the TBC. In January 2004 the Defendant introduced a new element in the training of drivers, advising of a need to keep their thumbs tucked under the handle and not to let them rest on the chamfered end.

Amongst other allegations, the Claimant alleged a breach of Regulations 4 and 9 of the 1998 Regulations, namely:-

Regulation 4 – 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. Suitable means suitable in any respect of which it is reasonably foreseeable will affect the health or safety of any person.

Regulation 9 provides a duty to ensure the provision of adequate training.

The Judge found there was no breach of Regulation 4. He found this on the basis that the TBC was suitable because it had not been reasonably foreseeable at the design stage that this kind of problem would have arisen.

In respect of Regulation 9 he found that the training had been adequate because it had been adequate to deal with the risks which the employer had actually foreseen.

The Claimant appealed against the finding under Regulation 9 only.

The decision

The duty under Regulation 9 “to ensure” that the Appellant was given adequate training, implied a mandatory duty. They did not go beyond this however to mean more than that the duty to provide training was mandatory. The employer could not say that it was too expensive or too time consuming or not reasonably practicable to provide training. They must provide training. In addition, the training must be adequate. The Claimant had contended for a very high duty which amounted to a “no fault” liability. That was too high. The mere fact that the duty to train was mandatory did not raise the meaning of adequate to the high level contended for.

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 was adequate only if it dealt with the risks which the employer actually knew about was to impose no greater a duty than existed already at common law.

The statutory duty was higher and imposed on the employer a duty to investigate the risks inherent in his operation, taking professional advice where necessary.

The Judge therefore applied the wrong test.

How should the Court approach the question of what the employer ought to have known about the risks inherent in his own operation? What he ought to have known is, or should be closely linked with the risk assessment which the employer is obliged to carry out under Regulation 3 of the 1999 Regulations. That required the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needed 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. In this case the Defendant should have been aware of the risk of a strain injury and should have taken advice about it from an ergonomist. The new brake controller should not have been put into service without taking advice from a suitably qualified expert. Had advice been taken, it would have identified the need for the drivers to be trained in the way in which they handled the handle.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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