Allison v London Underground Ltd: [2008] EWCA Civ 71

CA: Sir Anthony Clarke MR, Smith and Hooper LJJ: 13 February 2008

The claimant, a driver on an underground line, developed a shoulder strain related to her handling of the traction brake controller, by which the driver operated the train. On her return to work after treatment she was transferred to a newer line where the design of the traction brake controller was thought to be more suitable, the employer having consulted drivers and experts while developing the rolling stock for the line. However, a modification to the design of the traction brake controller, made at the suggestion of experienced drivers but without expert advice, led the claimant, who had small hands, to hold it in a way which caused her to develop tenosynovitis of the right hand and wrist, and she was unable to continue to work as a driver. On her claim against the employer for damages for personal injury, she alleged that the employer’s risk assessment under regulation 3 of the Management of Health and Safety at Work Regulations 1999 had been inadequate and that the employer had failed to ensure both that work equipment was suitable for purpose and that the claimant had had adequate training in its use, in breach of regulations 4 and 9 of the Provision and Use of Work Equipment Regulations 1998. Dismissing the claim, without specifically addressing the adequacy of the risk assessment, the judge held that there was no breach of regulation 4, the design of the traction brake controller being suitable because it had not been reasonably foreseeable that the kind of problem experienced by the claimant would arise, and that the training had been “adequate” in that it dealt with the risks which the employer had actually foreseen. The judge further held that if he had found primary liability established he would not have made any finding of contributory negligence.

The claimant appealed.

The Court of Appeal held:
The duty on an employer, under regulation 9 of the Provision and Use of Work Equipment Regulations 1998, to ensure that an employee had “adequate” training, required the employer to provide the training needed to avoid the risks arising from the activities of his business and included a duty to investigate the risks inherent in his operations, taking professional advice where necessary, and a suitable and sufficient risk assessment under regulation 3 of the Management of Health and Safety at Work Regulations 1999 would identify those risks in respect of which an employee needed training. The defendant employer had been aware of the risk of strain injury arising from prolonged use of the traction brake controller and ought not to have put the new controller into service without advice from a suitably trained expert, and, on the evidence, such advice would have identified the need for drivers to be trained in the way in which they held the handle of the controller. Accordingly, the employer was in breach of regulation 9 of the 1998 Regulations and the claim would be remitted for assessment of quantum.

The appeal was allowed.

Appearances: John Foy QC (Thompsons) for the claimant; Christopher Purchas QC and George Alliott (Kennedys, Chlemsford) for the employer.