Health and Safety — Employer’s liability — Work equipment — Employee driving underground train using traction brake controller — Employee developing tenosynovitis due to strain caused by manner of holding controller — Whether risk assessment and training by employer adequate — Whether duty on employer to ensure adequacy of training strict or absolute — Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306), reg 9

Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] WLR (D) 45

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

The test to determine whether the training an employer was required to provide for his employees was adequate for the purposes of reg 9 of the Provision and Use of Work Equipment Regulations 1998 was what training was needed in the light of what the employer ought to have known about the risks from the activities of his business. The statutory requirement imposed a higher duty than at common law.

The Court of Appeal so held, allowing the appeal of Latona Allison against the dismissal by Judge Cowell in the Central London County Court on 25 January 2007 of her personal injuries claim against her employer, London Underground Ltd. Damages were agreed.

SMITH LJ said that the claim rested partly on the alleged inadequacy of the risk assessment the employer had carried out on the use of the traction brake controller (“the handle”) on the Jubilee line. The judge did not deal with the suitability or sufficiency of the risk assessment carried out on the handle as required by reg 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242). It was submitted for the employee that the duty to provide training under reg 9 of the 1998 Regulations was strict or absolute and that the test did not depend upon reasonable foreseeability. If the employee had been trained not to rest her thumb on the chamfered end of the handle, she would not have suffered injury. It mattered not whether the employer could not have reasonably foreseen the need to provide that particular element of training. The judge held that the training had been adequate because it had been adequate to deal with the risks which the employer had actually foreseen. Counsel had used the expressions “strict liability” “absolute liability” and no-fault liability” interchangeably. Her Ladyship did not think that they all meant the same thing. “Strict liability” was used where liability could not be excused on the ground that it was not practicable or reasonably practicable to avoid the risk. “Absolute” or “no-fault” liability covered the smaller class of obligations which imposed on the employer liability for something which he could not have avoided even by the exercise of all possible care. Reg 9 imposed a mandatory duty to provide adequate training. The test for the adequacy of training for the purposes of health and safety was what the employer ought to have known about the risks arising from the activities of his business. To say that the training was adequate if it dealt with the risks which the employer knew about was to impose no greater a duty than existed at common law. The statutory test was higher and imposed on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary. What the employer ought to have known was (or ought to be) closely linked with the risk assessment he was obliged to carry out under reg 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 would be what he would have known if he had carried out a suitable and sufficient risk assessment. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to minimise those risks. They should be a blueprint for action. The right approach for the court, in deciding whether the employee’s training had been adequate for health and safety purposes, was to examine whether the employer’s risk assessment had been sufficient and suitable. Her Ladyship concluded that the employer ought not to have put the new handle into service without taking advice from an ergonomist. Had it done so, it would have identified the need for the drivers to be trained in how to hold the handle to minimise the risk of strain injury. Because that advice was not taken the risk arising from the design was not recognised as it should have been and the training given to the employee was not adequate in breach of reg 9. Had proper training been given the employee would probably not have developed the strain injury which she had suffered.

SIR ANTHONY CLARKE MR gave a concurring judgment. HOOPER LJ agreed.

Appearances: John Foy QC (Thompsons) for the employee. Christopher Purchas QC and George Alliott (Kennedys, Chelmsford) for the employer

Reported by: Susan Denny, barrister