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

CA (Civ Div) (Sir Anthony Clarke MR, Smith LJ, Hooper LJ)

Health & Safety at work – ergonomics - risk assessment - adequacy of training for reg. 9 PUWER 1998

The claimant was employed by London Underground as a tube train driver. She developed tenosynovitis as a result use of a traction brake controller. The brake controller used by L had a chamfered end. This design feature had been introduced at the suggestion of two experienced train drivers who thought the new design might be more comfortable. The modification was not the subject of expert advice and no special instructions were given to the drivers as to how they should position their thumb in relation to the chamfered end. It was common ground at trial that the injury was caused by the position in which the claimant held her thumb.

The Court of Appeal held that no-fault liability was rare in English law. It existed but required clear word. The words "to ensure" in reg.9 implied a mandatory duty. However the words did not mean anything more than that the duty to provide training was mandatory. The employer must provide training and it must be adequate. The mere fact that the duty to train was mandatory did not raise the meaning of "adequate" to such a high level as to impose no-fault liability. The test for the adequacy of training was 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 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 duty was higher and imposed on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary. Although the judge warned himself that the test would not be the same as the common law test, he had in fact wrongly applied the common law test. The judge had failed to decide whether the risk assessment was sufficient and suitable. London Underground should have taken advice about the risk from an ergonomist. Had it done so, it would have identified the need for the drivers to be trained in the way in which they held the handle in order to minimise the risk of injury. Because this advice was not taken, the risk arising from the design of the chamfered end was not recognised as it should have been and the training given was not adequate therefore in breach of reg.9.

Appeal allowed.

Christopher Purchas QC appeared for the Defendant

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