UK: Court Of Appeal Gives Guidance On Regulations 4 And 9 Of The Provision & Use Of Work Equipment Regulations 1998 And Dismisses The ´No Fault´ Concept.

Last Updated: 5 October 2008
Article by Joanne Kelly, Solicitor

By Roger Jones, Partner

The Court of Appeal Judgment in the case of Allison v London Underground Limited, concerning the construction of Regulations 4 and 9 of the Provision & Use of Work Equipment Regulations 1998 ("PUWER") was handed down on 13th February 2008.

A tube driver, Latona Allison, made a claim against her employers London Underground Limited (LUL) alleging that she developed RSI as a result of holding down the Traction Brake Controller (TBC), otherwise known as the 'dead mans handle', whilst driving tube trains on the Jubilee Line. Ms Allison claimed that she was not given adequate training in the use of the TBC. The claim was dismissed at first instance.

The appeal involved consideration of the construction of Regulation 9, requiring employers to ensure adequate training in the use of work equipment is given. The Court of Appeal held that LUL was in breach of Regulation 9 for failing to ensure that the Claimant received training in the risks involved in using the handle by holding her thumb over the end. Consequently they failed to ensure that she received adequate training in the way to hold the handle properly and to consider what precautions should be taken to avoid the risk of strain injury.

The Claim was dismissed following a trial in January 2007. His Honour Judge Cowell held that LUL were not in breach of Regulation 9 of the PUWER. The Judge held that the duty was not absolute but required the employer to provide such training as was "adequate in all the circumstances - the circumstances including", as he put it, "notions of foreseeability". The Judge recognised that a difficult question of construction arose and gave the Claimant permission to appeal.

The Appeal involved consideration of the construction of Regulation 9 of PUWER. Regulation 9 provides "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".

The main issue in the appeal was whether or not the duty imposed by Regulation 9 is absolute and therefore does not require the proof of any fault on the part of the employer, i.e. should the adequacy of training given to an employee be judged by the result in the light of events, or whether it should be assessed in the light of what the employer knew about the risks at the time even though, in the light of later events, it could be seen that training had been inadequate?

The second part of the appeal was whether the design of the TBC was unsuitable and therefore in breach of Regulation 4 of PUWER.

Sir Anthony Clarke MR, Lady Justice Smith and Lord Justice Hooper considered the appeal on 13 December 2007. They heard arguments put forward by John Foy QC on behalf of Ms Allison and Christopher Purchas QC on behalf of the Respondent LUL.

Judgment was handed down on 13th February 2008. The Claimant failed to convince the Court of Appeal that the design of the TBC was unsuitable and in breach of Regulation 4. Ms Allison also failed to convince the Court that the duty to provide adequate training under Regulation 9 was absolute.

However the Court of Appeal held that the Respondents LUL were in breach of Regulation 9 because they failed to ensure that the Claimant had received adequate training in how to hold the handle. In short, LUL should have ascertained what risks there were in holding the handle in that way and, having taken the advice of an ergonomist, should have instructed drivers to hold it in a certain way.

The Court held that under Regulation 9, the duty to provide training is mandatory and that the training must be "adequate". Smith LJ giving the leading judgment stated:

"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 that will be what he would have known if he had counted out a suitable and sufficient risk assessment." She went on to say, "Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks" and that they must be "carried out with all due care and diligence".

Sir Anthony Clarke MR said,

'I agree with Smith LJ that in order to carry out such a risk assessment it would be necessary to instruct an appropriate expert, namely an ergonomist. I also agree with her that such a risk assessment would have revealed the risk and led to appropriate training which would have led to instructions to drivers not to hold the thumb over the end, with the result that the appellant would, on the balance or probabilities, have held the handle in a different way and have avoided the strain injury which she suffered'.

What Does This Mean?

The Judgment places a higher duty upon employers to take a proactive approach to risk assessments and to investigate whether there are any potential risks, rather than deal solely with the risks already identified. Similarly training must take account of risks that are known and those that ought to have been revealed by a proper risk assessment. So any training programme should ensure that the risk has been properly assessed. One further point is that any risk assessor will need to have the appropriate professional expertise, and that if the employer does not have people with such expertise he should go out and seek advice from those who have.

Finally insurers and employers will be relieved to note that the Court of Appeal rejected the submissions made on behalf of Ms Allison that Regulation 9 imposed a 'no fault' liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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