England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM PRESTON COUNTY COURT
(His Honour Judge Appleton)

		The Royal Courts of Justice The Strand London Friday 15 February 2002

Friday 15 February 2002

1. LADY JUSTICE HALE: This is a defendant's application for permission to appeal against the order of His Honour Judge Appleton made on 1 November 2001 in the Manchester County Court sitting in Preston. He gave judgment for the claimant for over £42,000 and costs. The defendant also applies for a stay of execution, which I understand to be agreed if permission is granted, and for permission to rely on further evidence.
2. This was a claim against the employers for the development of asthma allegedly caused by exposure to colophony while carrying out soldering work. Colophony is known to cause asthma. It is a substance within the Control of Substances Hazardous to Health Regulations 1994. The employer took precautions, in the form of exhaust ventilation, at established soldering stations but not at the repair benches where soldering had to be carried out during on-the-spot repairs.
3. The claimant developed asthma in 1997 and by October 1997 it was sufficiently severe to require hospital admission. There was a dispute in the medical evidence but it was common ground that in order to show that it was attributable to exposure at work she would have to show that the exposure continued through the summer of 1997 and that there was no wheezing before that exposure began. Her exposure was, on any view, very limited. It began from 11 April 1997 when she temporarily moved sections and had to do some soldering while carrying out repairs, but she claimed that she had carried on soldering when she returned to her own section between July and October, filling in for a colleague who had moved. The defendants disputed this. They said that the colleague had not moved until 1998. The defendants also relied on references in her medical notes suggesting that her wheezing had begun before April 1997, in particular a note in her GP notes of a consultation on 10 April 1997 referring to "wheeze".
4. Mr Feeny on behalf of the defendant puts forward three grounds of appeal. The principal one is a point of law, the other two are points of fact. The point of law relates to whether the degree of forseeability of risk is relevant to an allegation of breach of, in particular, regulation 7(1) of the 1994 regulations. This provides:

"Every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled."

5. It was not argued that exposure could not in practice be prevented, because it was routinely done at the regular soldering stations and was subsequently done at the repair stations. The argument was that if the degree of risk from a level of exposure such as that suffered by the claimant was so small, or indeed non-existent, then it was not reasonably practicable to prevent that exposure. The judge held, in effect, that once one had a substance such as this and it was acknowledged that there were practicable precautions to prevent exposure, that was the end of the matter.
6. The issue raised by Mr Feeny is not a straightforward one. All of these regulations are different and they have received differing interpretations in the courts. He has drawn attention to first instance and Scottish decisions on other statutory provisions which demonstrate that foreseeibility of risk has been held relevant to other statutory provisions not identical but in some respects not dissimilar to the one under consideration. This particular regulation has not been considered in any reported case, nor has the whole general question of the relevance of foreseeability to reasonable practicability, where it appears in such provisions, been considered in full by this court. For that reason, and without wishing to express any view as to the prospects of Mr Feeny's argument ultimately persuading the court, this seems a proper case in which permission should be granted.
7. Our attention has been drawn to certain aspects of the evidence, in particular from Mr Jones, the Health and Safety Officer, which might be said to suggest that, whatever the interpretation of this provision, the employer had the required degree of knowledge to be able to foresee sufficient hazard in this substance to trigger the duty under regulation 7. It would be dangerous for a court simply considering an application for permission to express any view upon that evidence, but I simply note that the judge does not refer to it in terms in his judgment, so that it is difficult to work out to what extent he was influenced by the answers to which our attention has been drawn.
8. The second two issues relate to the degree of exposure over the summer and the date of onset of wheezing. One understands that the judge heard the claimant and her husband, in particular, giving evidence as to when her symptoms began and had to compare those with the notes. Similarly, as to the extent of exposure over the summer, the judge heard the claimant and her colleague as to what had happened that summer and preferred that to the wage slips which were produced in an attempt to counter the colleague's evidence as to when she moved. If we had not been giving permission on the first ground, I would have regarded those as eminently factual questions depending upon the judgment of the judge upon the oral evidence; but given that the matter is to go before the court and will not be very considerably extended if those issues are also ventilated, I would give permission on those grounds as well.
9. With regard to the application to adduce fresh evidence in the shape of even more wage slips, in relation to the colleague, that is a matter which can be considered by the full court. I would not wish to prejudice their judgment upon the Ladd v Marshall principle, but in any event that is not going add anything to the expense of preparing for this appeal.
10. LORD JUSTICE PILL: I agree.
ORDER: Application allowed, with a time estimate of a day. (Order not part of approved judgment)