England and Wales Court of Appeal (Civil Division) Decisions

Volex Group Plc v Evans [2002] EWCA Civ 225 (27th February, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR. JUSTICE ELIAS

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2002

Sir Christopher Staughton:

1. Mrs Jane Evans worked in a factory at Merthyr Tydfil for Volex Group plc. Their business was in manufacturing cables and plugs for the supply of electricity to household and other implements. On 17^th January 1996 her shift began at 6.00 am. Her task was to operate a machine which riveted a plug to the end of a flexible cable. Nearby was another machine called a Battenfield, which was operated by Mr Bevan. It was used to hot mould the plug on to the cable by a plastic injection moulding process with a p.v.c. compound.
2. Early in her shift that morning Mrs Evans complained of a strange smell emanating in fumes from the Battenfield machine. She described the fumes as acrid; she said that they caused her eyes to water and irritated her nose and throat, causing her to cough. She complained, first to the leader of her cell - as her part of the factory was called; next to the foreman and supervisor on the factory floor, and again to a woman from quality control. All that was done in the first hour and a half or so of the shift. At about 8.00 am she complained to a Mr Woollet. Then at some time between 9.30 and 10.00 am the problem came to the attention of Mr Dent, the company’s general manager at Merthyr, and Mr Jones, the Health and Safety Officer of the Group, who happened to be in the factory on that date. A maintenance engineer was called to try to deal with the problem but did not succeed in doing so. Mr Jones at some stage told Mrs Evans that she could go out and get some fresh air when she wanted to. There is a dispute as to when the offer was made. Her evidence was that it happened towards the end of the shift; Mr Dent and Mr Jones said that it was much earlier. The judge’s findings were (i) that she was told that “relatively early in the piece”, as he had no doubt that Mr Jones was concerned for her welfare, but (ii) that she did not appreciate that she could simply leave as and when she wanted until sometime later. If the question is whether Mr Jones was negligent, I suppose that finding (i) is of slightly more importance than finding (ii). It is pleaded in the Particulars of Claim that Mrs Evans went outside from 10.45 to 11.15, and took breaks for fresh air from 1.10 pm to the end of her shift at 2.00 pm.
3. On the following day Mrs Evans returned to her post at the factory. The particular compound which had been used in the Battenfield machine on the previous day was required for an order to a particular customer, and was no longer in use. We do not have detailed information of what happened to Mrs Evans in the next few days, perhaps because the damages were agreed at £40,000 if liability is established. But we know that on 20^th January she went to her doctor who noted “sore throat, runny nose, croaky voice, aches and pains, cough …? viral”. On 30^th January she was admitted to Prince Charles Hospital in Merthyr Tydfil with two days’ history of left-sided chest pain. She was suffering a pleuritic injury, subsequently diagnosed as pneumonia and pulmonary embolus, and certain psychiatric problems thereafter.
4. Issues before the judge were first, what caused the illness from which Mrs Evans was suffering, and secondly whether it was brought about by negligence or breach of statutory duty on the part of Volex Group plc or any of their employees.
5. The amended Particulars of Claim contained the allegation, in paragraph 5B that the fumes to which Mrs Evans was exposed were probably of hydrogen chloride gas and/or phenol and/or phosgene, and in paragraph 7(g) that hydrogen chloride gas and/or phenol and/or phosgene were substances hazardous to health within the Control of Substances Hazardous to Health Regulations 1994. It is now common grounds that those allegations of breach of statutory duty were not made out. It was not shown that the chemicals mentioned, in the circumstances in which they might have been present, were likely to have caused any injury to Mrs Evans. The breach of statutory duty was in effect abandoned, and the case went ahead as one based on negligence at common law.
6. Medical reports were prepared by Dr Howard on behalf of Mrs Evans and Dr A.P. Smith on behalf of Volex Group. Dr Howard was of the opinion that inhalation was the cause of the illness, and specifically inhalation of the fumes, for a number of reasons. Dr Smith thought that Mrs Evans suffered a viral illness. His view was based on the fact that nobody else was injured, but this was not the finding which the judge reached. He concluded that Mr Bevan also suffered some ill effects, although not to any significant extent.
7. However, the medical witnesses added to their evidence by completing what was called a statement of agreement/disagreement. That had this proposition, which was agreed by both of them:
8. If the Court is satisfied that she was exposed to dangerous levels of toxic fumes, the initial illness was probably caused by that incident. If the Court is not so satisfied - it was probably due to an infective illness.
9. Dr Howard in cross-examination was asked about that proposition as follows by Mr Feeny:

Q. If I take you to the fourth matter down the page, which I suggest to you is probably the most important aspect of this agreement, you basically indicate an agreement between you that, if the court were satisfied there was an exposure to dangerous levels of fumes, the initial (inaudible) which was probably caused by the incident.… - A. Yes.

Q. The court is not satisfied it was probably due to an infective illness. - A. Yes. I mean, I… Yes, I (inaudible).

Q. Yes, and I was not challenging you at all on that point, Dr Howard. That is a reasonable assessment, and obviously the question, as you correctly mirror in the memorandum, is a matter for my lord ultimately as to whether he is satisfied on the evidence. - A. Yes. I agree.

Q. There was exposure to dangerous levels of fumes. - A. Yes. That’s the crux of this case.

Q. And by dangerous levels of fumes you mean those levels which are recognised scientifically as being likely to cause an irritant injury. - A. Yes.

Q. And they are, happily, defined in, particularly, the COSHH Regulations of 1994 where occupational exposure limits are set out - yes? - A. Yes.

Q. You are nodding but it is taped so if you agree you have to say it. - A. Sorry, yes. Yes. Yes.

Q. So the position is that, if the exposure exceeded occupational exposure limits then you would be satisfied this was an inhalational injuries whereas if the evidence was that it did not, you would have to say it was an infective process. - A. Yes.

Q. And just dealing - I appreciative you have got certain arguments in relation to the probabilities but it is all subject to that fundament point, is it not, Dr Howard…? - A. Yes.

Q. Just looking at the peripheral issues if I can, obviously nothing surprising about a person developing a viral illness in the upper respiratory tract at the end of January. - A. No.

Q. Very common occurrence. - A. Yes.

Q. I think it is right to say that we are expected to have a certain number of those infections every year, are we not? - A. Yes. We have waves of them.

10. Under the heading of uncontroversial evidence, Elias J. found that there was no sign of decomposition in the P.V.C. material being used. It followed that there could not have been dangerous fumes from hydrogen chloride or phosgene. Nor was there a risk from phenol.
11. The only other possible cause of injury by dangerous fumes was from some other unknown toxic substance, or because Mrs Evans was unduly susceptible to injury from the substance used. But there was no evidence supporting another toxic substance as the cause. There was on the other hand an argument for Mrs Evans that she was or might have been particularly susceptible to harm, but no evidence to support it, or that the Defendants were aware that she was particularly susceptible.
12. That there were fumes was, as the judge said, incontrovertible. But nobody could suggest any source of toxic or dangerous fumes. Dr Howard maintained that the fumes were the most likely cause of the illness. He gave a number of reasons for that conclusion, of which the most plausible in my view was that it would be an unlikely coincidence if Mrs Evans suffered from a viral illness at the same time as she was exposed to inhalation of fumes. There was no evidence to the contrary, as Dr Smith did not give evidence. That led Elias J. to conclude that the fumes were indeed the cause of her illness. He nevertheless gave permission to appeal, and with admirable clarity stated this reason for doing so:

“The question arises whether it is justifiable to infer negligence in circumstances where the Defendants have shown on a balance of probabilities, and in relation to each potential toxic element, that no toxic fume emanating from that element was likely to be present. Could it nevertheless properly be inferred that the Claimant was suffering some, albeit unidentified, toxic element in the fumes, and that accordingly she should have been removed from her place of work?”

13. I have to say that in my judgment that question ought to receive a negative answer in the circumstances of this case, because it is inconsistent with the statement of agreement of the two doctors, particularly as it was elucidated in the evidence of Dr Howard. It was not shown that there was exposure to some toxic element in excess of occupational limits. It followed that in the view of both doctors that the cause of illness was an infective process.
14. That makes it unnecessary to consider whether there was negligence on the part of the Volex Group or any of its employees. The judge held, not that there was negligence in exposing Mrs Evans to the fumes, but there was negligence by somebody in failing to order her away from the fumes when the risk to her health was or should have been appreciated. Mr Jones told her “relatively early in the piece” that she could go out and get some fresh air when she wanted to. But it is said and the judge found, that Mrs Evans should have been removed from the site once she had made it plain that the process was adversely affecting her. He added -

“had that occurred at a much earlier stage there must have been every chance that she would not have suffered the deleterious effects which she did.”

15. And of Mr Jones he said -

“It would in any event have been more prudent for him to have insisted that the Claimant should leave the machine until the problem was identified and resolved.”

16. It was argued that this was not a finding of negligence, or if it was that it ought not to have been made. Mrs Evans, after all, was as good a judge of her state of health as the employees of the Defendants, if not better. It was also argued that one could not tell how much, if any, of the injury to her health had occurred by the time when she should have been removed from the vicinity of the machine. Those points need not be determined. During the argument the judge appeared to be rejecting the suggestion that there was negligence in failing to send Mrs Evans away from her machine. But he was fully entitled to change his mind. It is enough to decide this appeal that the illness of Mrs Evans was not shown to have been caused by the fumes from the machine under the control of her employers. I would allow this appeal.

Chadwick LJ:

17. I agree that the appeal must be allowed.
18. There was no evidence from which the judge could find that the claimant was exposed to dangerous levels of toxic fumes. The agreed medical evidence was that, if the judge was not satisfied that she was exposed to dangerous levels of toxic fumes, then her initial illness was probably due to an infection. To argue, as Dr Howard sought to do after he had confirmed his agreement to that proposition, that the fact of the illness was indicative of exposure to dangerous levels of toxic fumes is to seek to undermine the agreed proposition by a process of a priori reasoning. The judge should have rejected that argument. The only conclusion which he could properly reach, on the evidence before him, was that the claimant had not established that her initial illness was caused by exposure to dangerous levels of toxic fumes.
19. On the basis of that conclusion, the employer’s failure to insist that the claimant left her place of work cannot have been a cause of her illness. There was no evidence to suggest that the viral infection from which she was or may have been suffering was aggravated by the fact that she remained at her machine longer than she would have done if the defendant had taken steps to remove her.
20. The answer to the question posed by the judge, when giving permission to appeal to this Court, is that it was not open to him to infer negligence on the part of the employer in the circumstances which he described.
21. No chemical reaction was identified as having been present. The more obvious potential candidates were ruled out. In those circumstances Mrs. Evans has not shown that any chemical reaction has caused her problems. Since that was a pre-condition of any liability of the employers the appeal must be allowed.

Schiemann L.J.:

22. I agree. The possible causes of Mrs. Evans problems were:

(1) a viral infection of a common type in January

(2) exposure to hazardous fumes or

(3) a combination of (1) and (2).

23. No chemical reaction was identified as having been present. The more obvious potential candidates were ruled out. In those circumstances Mrs. Evans has not shown that any chemical reaction has caused her problems. Since that was a pre-condition of any liability of the employers the appeal must be allowed.
Order: Appeal allowed; action dismissed; costs of the appeal and costs of the action below to be paid by the respondent to the appellant, such costs to be subject to detailed assessment by a costs judge if not agreed. (Order does not form part of the approved judgment)