England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
(HIS HONOUR JUDGE APPLETON)

		Royal Courts of Justice Strand London, WC2
		14 February 2003

1. LORD JUSTICE BUXTON: The appellant, Mrs Yvonne Naylor, was employed by the defendants, the Volex Group Plc, in work described more fully in the learned judge's judgment, but which for present purposes can be summarised as being the making-up of wiring harnesses for insertion into vans or other vehicles. Part of that operation involves the soldering of those wires. Mrs Naylor was not originally directly involved in that. Her case is that from April 1997 she was exposed to the actual soldering. That was in principle an operation exposing the employees to some hazard. The reason for that is set out in paragraph 4 of the learned judge's judgment, which I can do no better than to quote:

".... in the soldering wire there was a rosin core and that rosin core, when it met the heat of the soldering iron, gave off a plume of what one would call smoke but which contains a substance called Colophony and those substances are hazardous to health."

The injury that Mrs Naylor claimed to have suffered as a result of exposure to colophony was industrial asthma. There is a dispute as to the causation of that injury, which turns on a dispute as to when Mrs Naylor ceased involvement in the work of soldering. I shall have to return briefly at the end of the judgment to that question.

2. The claim on which she succeeded at the trial was under the 1994 Control of Substances Hazardous to Health Regulations 1994 ("the regulations"). Regulations 6 and 7(1) provide as follows:

"6 Assessment of health risks created by work involving substances hazardous to health

(1) An employer shall not carry on any work which is liable to expose any employees to any substance hazardous to health unless he has made a suitable and sufficient assessment of the risks created by that work to the health of those employees and of the steps that need to be taken to meet the requirements of these Regulations.

(2) The assessment required by paragraph (1) shall be reviewed regularly and forthwith if --

(a) there is reason to suspect that the assessment is no longer valid; or

(b) there has been a significant change in the work to which the assessment relates,

and where, as a result of the review, changes in the assessment are required, those changes shall be made.

7 Prevention or control of exposure to substances hazardous to health

(1) 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."

3. When this appeal was initially put in hand and when permission was granted to appeal to this court, it was possible to say that there was some uncertainty about the state of authority in this court with regard to the true construction of those regulations; though I am bound to say that even at that stage that contention seemed to me to be a difficult one. However, the court now has the benefit of its recent decision in the case of Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689.  At this stage I need do no more than read paragraph 27 of the court's judgment, which is in the following terms:

"This all reinforces the view taken by Lord Nimmo Smith [in Bilton v Fastnet Highlands [1998] SLT 1323] that the purpose of the regulations is protective and preventive: they do not rely simply on criminal sanctions or civil liability after the event to induce good practice. They involve positive obligations to seek out the risks and take precautions again them. It is by no means incompatible with their purpose that an employer who fails to discover a risk or rates it so low that he take no precautions against it should nevertheless be liable to the employee who suffers as a result."

4. The judgment of Lord Nimmo Smith, to which this court there refers, had compared the position under section 29(1) of the Factories Act 1961. Lord Nimmo Smith's view that that section also imposed a similar strict liability on the employer, comparable to that which he discerned in the regulations, echoed the general view of the relevance of the concept of reasonable practicability to the employer's liability which was expressed by this court in Larner v British Steel [1993] 4 All ER 102. I would venture to mention in particular the citation by Hirst LJ at page 110D and by Peter Gibson J (as he then was) at page 113A of a dictum of Lord Guest in Nimmo v Alexander Cowan [1968] AC 122. I accept that those observations were addressed to a different provision, but it was clearly the view of Lord Nimmo Smith that they ran in parallel with the view that he took, and this court has now taken, of the present regulations.
5. I turn to this case.
6. It is common ground that colophony fumes have for many years been recognised as an environmental employment hazard. The question was what was the level, if any, of safe exposure to such fumes. Although the present employers provided general ventilation in the workplace, they had never provided local exhaust ventilation at the particular repair benches where the claimant's exposure occurred. Had such local exhaust ventilation been provided, as I understand it the problem would not have arisen.
7. Turning to the regulations, the judge found that there had been a breach of regulation 6 in circumstances to which I shall come, and also a breach of regulation 7. This he explained in paragraph 20 of his judgment. He first of all explains why he thought that in the circumstances a risk assessment had been required in January 1997 under the provisions of regulation 6(2)(a). (That finding of the judge is contested and I shall come back shortly to explain the basis upon which it was put.) He continued thus:

"It did not happen and so thereafter, in my judgment, (and I will come to the facts in a moment) if, in terms of breach of statutory duty, the employer breached 7(1) then, subject to the findings of fact which I will make further on, there has got to be liability in terms of a breach of statutory duty. I say that because there is no leeway in this statutory duty. It is mandatory. 7(1) says:

'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.'

There has been no case advanced on behalf of the defendants in this court as far as I understand it as to prevention not being reasonably practicable in this factory and frankly I am not surprised because local exhaust ventilation ducts have been in this place for a very long time. They have just never been applied to the temporary repair benches. As a matter of law, I have come to the conclusion that any exposure after the .... 1st January [I will explain the importance of that date in a minute] would have and did amount to a breach of statutory duty in terms of 7(1)."

I would respectfully comment that that approach seems to me to be exactly in line with the view subsequently taken by this court in Dugmore, that I have already set out.

8. I turn to the breaches in more detail.
9. First, the breach of regulation 6. The employers had originally, before 1997, made an assessment of risk, although we have not seen it and apparently it was not made in writing. That had led them to think that persons working in the situation of Mrs Naylor were not exposed to a significantly dangerous risk from colophony. That assessment was probably based upon standards provided by the Health and Safety Executive. In January 1997 the Health and Safety Executive standards were withdrawn. At broadly at the same time, the employers received a report from a firm of environmental consultants, to whom I will refer as RPS, with regard to exposure from colophony.
10. Evidence was given about the receipt of that report and other relevant matters by a Mr Jones, who had been for many years the defendant's Group Health and Safety Officer and who was responsible for the defendant's reaction to health and safety hazards. The fact of withdrawal of the Health and Safety Executive requirements was set out in a leaflet produced by that body about which there was dispute as to when it had arrived in Mr Jones' possession. He gave evidence to the judge, as I understand it, that he had had that leaflet in January 1997. The judge was later told (although Mr Jones was not invited to go back into the witness box) that that had been an error on Mr Jones' part. All that he had had in January was the RPS report. When the judge dealt with this matter in his judgment, it is fair to say -- and hardly surprising -- that he appears to have believed that Mr Jones had the HSE report itself in January 1997. As I say, it is hardly surprising that he thought that in view of the evidence he had had to that effect.
11. I am content to deal with the matter, having been addressed at considerable length by Mr Feeney on this point, on the basis that in truth all that the employer had was the RPS report at that date. If, however, one turns to that report, it is clear from it, and from passages that the judge cited, that there was serious cause for concern about the previous methods of testing. The consultants said this at page 2 of their report:

"Currently, the method by which colophony fume is sampled (and also the Occupational Exposure Standard) are under review by the HSE. This is because the above method for rosin core pyrolysis products only measures the gaseous components of the fume and there is some doubt as to whether an OES based on formaldehyde exposure is appropriate .... 

An alternative method for sampling colophony fume has been devised by the HSE to investigate the resin acids in solderfume that occur during rosin cored soldering. However, this method has not been fully verified and as yet no official occupational exposure standards have been set, so this method was not used in this survey."

On page 75 there is a table of limits but it is specifically noted as being in relation to substances under review by the Health and Safety Commission's Advisory Committee on Toxic Substances.

12. The judge said, believing that Mr Jones had positive information that the HSE standard based upon the then Occupational Exposure Standards previously used had been actively withdrawn by the HSE, that that was a significant moment when it was necessary under section 6(2)(a) for there to be a reassessment, there being reason to suspect that the original assessment was no longer valid. That, if I may say so, was a clear and obvious conclusion from the evidence that was before him. But even if Mr Jones had given evidence about his correct state of mind, that he only had the RPS report, nonetheless in my judgement that report itself should unambiguously have rung warning bells in the mind of any health and safety officer. What the employer was being told was that the sure standard previously relied on was under investigation, and could not safely be relied on. In those circumstances a finding that a new risk assessment was required, with the possible conclusion that the work either must be stopped or that the practicable step of installing local ventilation should be taken, was clearly something that should have come to attention.
13. I say all that because it appears to be suggested in this appeal that, because of the confusion about which document Mr Jones actually had in January, this appeal should be allowed to the extent of the matter being remitted to the learned judge for him to review the regulation 6 position on the basis solely of the RPS report. That in my judgement would be a futile exercise because even if that were done, it would certainly be open to the judge -- and I would go so far as to say he might well be bound -- to find that the reliance on the RPS document alone led him inexorably to the same conclusion. There are no grounds, therefore, for going behind the judge's finding as to regulation 6. I have gone into that matter at some length because of the complaint that was made about the confusion as to the underlying documents.
14. The question as to breach of regulation 7 is somewhat more straightforward. The judge is criticised because he said, in the passage that I have already read, that there was no claim made in respect of reasonable practicability. He is said to have misunderstood paragraph 4 of the defence, which reads as follows:

"In the circumstances, the Claimant's exposure to colophony fumes was minimal. At the material time there was no official standard for colophony exposure. The previous Occupational Exposure Standard had been withdrawn by the Health & Safety Executive and a new Maximum Exposure Limit was proposed. However, the Defendants deny that the Claimant's exposure was such as to exceed the previous OES or the proposed MEL. The Defendants deny that they could reasonably have anticipated in the light of contemporaneous knowledge that the Claimant would have suffered any injury as a result of her minimal exposure to colophony fumes."

I am not surprised, in the light of that pleading, that the judge did not understand what the pleader apparently was seeking to say to him. No word is said in that pleading about reasonable practicability. What is relied on is lack of knowledge or foresight and that, first of all, is a different matter from reasonable practicability; and, secondly, under these regulations properly construed, is not a consideration that can be taken into account.

15. The judge said this about paragraph 4 in paragraph 21 of his judgment:

".... whilst the contents of paragraph 4 are very interesting and probably inform the court as to why the decision was taken to defend the action .... it does not, in my judgment, amount to any, or any adequate, response to a plain breach of section 7. If there is exposure, it does not matter how minimal. Regulation says that there is to be no exposure."

That was directly in line, in my judgement, with the view taken by this court in Dugmore. Mr Feeney sought to distinguish Dugmore in a number of respects. I was not persuaded by any of them. In my judgement, first of all what this court said in Dugmore was of general application; and, secondly, there is no feature in this case that renders the employer's position more favourable than that of the employer in Dugmore. In any event, as the judge himself said, if there had been a breach of regulation 6 by not getting the proper information and not putting themselves in the right position that they should have been in, then even if ignorance or lack of foresight was a potentially available plea under regulation 7 it cannot be available in a case where the employer is in the state of knowledge that he is in because he has not performed his duty under regulation 6.

16. On the main question of liability, therefore, this appeal is in my judgement bound to fail.
17. I come to the two factual questions. The first concerns the dates at which Mrs Naylor was exposed to colophony. On the medical evidence it was common ground that the diagnosis of occupational asthma on which the claim depended needed the claimant to show that she had worked on soldering in July to October 1997 on her return to work from her honeymoon, as well as during a previous period in April to May of 1997. At the trial, but not before, the claimant advanced circumstantial considerations to support her evidence of that fact, saying that she had gone back to soldering because of the removal of a fellow worker, a Mrs Hatton, to another section of the factory when she, Mrs Hatton, also returned from honeymoon. Mrs Hatton was already a witness as to the general nature of soldering, but she only volunteered evidence supporting that aspect of Mrs Naylor's claim at the trial itself. The defendants had called a witness, a Mrs Farrimond, to say that Mrs Hatton had only transferred to the other work in 1998. That evidence was given, as we understand it, on the second day of the trial, Mrs Farrimond saying that she had consulted the wage records from 1998 which established Mrs Hatton's position in 1998. It was pointed out that those records did not cover the relevant period of 1997. Therefore there were produced overnight, and after Mrs Naylor and Mrs Hatton had completed their evidence, the wage slips for Mrs Hatton which were said to demonstrate that there had been no such increase in her pay over the relevant period in 1997 as would have been granted for the new job to which she said she had moved.
18. The judge understood the employer's case on this point to be -- and we have not been told by Mr Feeney otherwise -- that Mrs Naylor was not just mistaken about the period of her employment but was activity lying about it. He dealt with that allegation in the light of the wage slips in this way (paragraph 31):

"The point that Mrs Farrimond was taking is that there would have been extra pay in the job that Denise Hatton said she went off to do and she checked the records for 1998. She did not, unfortunately, check the records for 1997, which is the year in question, so that was not at all helpful. I am told the defendants endeavoured to produce her wage slips because they would have reflected the increase[d] pay but there are only four wage slips for the week of 1st August, 5th September, 12th and 19th September. That is all.

Do I accept from Mrs Farrimond her trenchant assertions that the claimant's account is not true and Denise Hatton cannot be right because the records do not show extra pay? I do not find Mrs Farrimond that reliable to reach those conclusions. Using my common sense as a Judge, looking at milestone events in people's lives, I am very impressed by the coincidence that these two ladies had honeymoons within a very short period of each other and that that was a significant milestone event in both their lives. It gave them a good reference point for their recollections."

He therefore found, in the face of strong allegations against them, that both of those witnesses were telling the truth; and of course he had seen and heard them give evidence.

19. Before us there is an application in terms of the jurisprudence of Ladd v Marshall [1954] 1 WLR 1489 to admit not only the four wage slips that were at the trial but also a significant number of further wage slips which are said to demonstrate that Mrs Hatton did not move until 1998. That is supported by a substantial witness statement by Mr Simon Denyer, the solicitor for the appellants. The difficulty about that application, it seems to me, is this. There were already present at the trial, albeit belatedly, wage slips available to be used, if so interpreted, to challenge the evidence of Mrs Hatton. Indeed, in paragraph 8 of his witness statement in support of this application, Mr Denyer points out that one of those wage slips was, as he puts it. "crucial for causation", because it covered a particular month in 1997 in respect of which month both the claimant and Mrs Hatton had suggested that Mrs Hatton had already moved. There was, therefore, relevant evidence in this sense already before the court. As we understand it, those slips were produced but no further application was made either for an adjournment or to recall certainly Mrs Naylor and possibly Mrs Hatton, and to confront them with these slips.
20. One understands why it was thought best to take that course. Applications for recalling witnesses or, much worse, for adjourning the trial are not lightly made. The fact remains, however, that this court has to decide whether it should now allow this appeal to the extent of sending the matter back to the judge for further consideration. On the evidence supporting the application, which I have already set out, it is difficult to see how the new slips covering 1998 will improve the position as it was originally before the judge. The substance of this complaint therefore is not really that there was new evidence that ought to have been before the judge, but that he made an inadmissible or improper assessment of the evidence that he actually had: which did include, at the end of the day, these wage slips. It seems to me impossible to say that the course that the judge took was not open to him. He was faced with two witnesses whom he had heard give evidence, who had not been confronted with the slips although they could have been, and whom he clearly found to be witnesses of truth. In my judgement it would be quite inappropriate now to send the matter back to the judge effectively suggesting that he ought to think again. I would therefore not grant the application and would not allow the appeal on that point.
21. Finally, complaint is made about the judge's treatment of the medical evidence. It was a strong point put against Mrs Naylor that she had been suffering from conventional (as I will call it) asthma before coming into contact with colophony, and therefore her asthmatic symptoms of which she complained, and which were established, were not causally related to the colophony. Reliance was placed upon a number of doctors' notes that suggested breathing difficulties in the early days of 1997. Reliance was also placed on a note taken at Bolton Metropolitan Hospital when Mrs Naylor presented there in a condition of considerable distress with her breathing in October 1997, which reported a history given by her husband that she had suffered breathing problems for some undefined period prior to that, but certainly predating the exposure to colophony.
22. The judge had the benefit of very skilled medical evidence, including the evidence on behalf of the claimant of a Dr Rudd, who is a most distinguished consultant in this field. Dr Rudd had had the benefit of not only examining the claimant but also taking a history from her and her husband. Mr Naylor's evidence at the trial was that his wife had not had previous respiratory problems, and I will note in passing that the judge specifically recorded that Mr Naylor was a witness of truth. Dr Rudd, being shown the notes, gave what I have to say is a comprehensive account of them to the judge. He expressed the view that the earliest of them did not record asthma but upper respiratory tract infection, and the General Practitioner had never suggested otherwise; and that the note that emanated from the visit to Bolton Hospital could not be relied upon. It was a houseman's note taken at a time of considerable stress for all concerned, and was the sort of note that would not be relied upon against the presence of other evidence. That is, if I may say so, exactly the sort of informed judgment of a medical history that an experienced clinician is entitled to make, and it is exactly the sort of evidence that a judge in his turn is entitled to accept, if he finds it convincing, from a man of that standing in the profession. The notes themselves, of course, prove nothing. They require to be interpreted. In this case each and every one of them, in my judgement, was as a whole interpreted by Dr Rudd in a sense that the judge was entitled to accept. There are no reasons for seeking to go behind the medical findings in this case and I am bound to say that I have to express some surprise that that was even attempted.
23. There are no grounds for allowing this appeal. I would dismiss it.
24. LORD JUSTICE CARNWATH: I agree.
25. LORD JUSTICE SIMON BROWN: I too agree and wish to add only a few sentences with regard to the main ground of appeal, essentially to express my surprise that it has been persisted in beyond 21 November 2002 when Hale LJ, who herself some nine months previously had given permission for the present appeal, gave this court's judgment in Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689. Dugmore, to my mind, dictates that the central ground of the present appeal fails for two independent reasons.
26. The first reason -- and this indeed appears fatal to the appeal with or without the problem that the appellants face in Dugmore -- is because the judge was to my mind bound to find here a breach of regulation 6 of the 1994 regulations by reference to the information which Mr Jones acquired in January 1997. Even accepting that Mr Jones at that date learned only of the unreliability of the previous measurements upon which, up to that date, the Occupational Exposure Standard for colophony (the hazardous substance in this case) had been calculated, rather than that the OES had already been withdrawn, when he did learn of that unreliability it became at once impossible to rely upon the previous assessment, which was that the risk to which those in the respondent's position were exposed was minimal. At that date, therefore, regulation 6(2)(a) required the previous assessment to be reviewed forthwith. It was not. From then on, even were the foreseeability of risk to be regarded as relevant to determining whether or not the appellant employers were in breach of regulation 7, they could no longer rely on their earlier assessment of the risk being minimal. From that date they simply had no knowledge of the extent of the risk to which they were exposing their employees.
27. As I understand this court's decision in Dugmore, that essentially was the conclusion there reached in paragraph 24 on the facts of that case. The court then, however, went on to consider the position under regulation 7, even were they wrong with regard to that first conclusion. Let me read paragraph 25 of Dugmore:

"25. If we are wrong about that, there is still the question of whether the claimant's exposure was adequately controlled. With the greatest of respect to Simon Brown J [the court there was referring back to paragraph 19 of its judgment in which a small part of my judgment in Knox v Cammell Laird Shipbuilders Ltd had been discussed], for the purpose of this regulation at least, it seems to us that his first impression is to be preferred to his later acceptance of the plaintiffs' concession. Here, the duty is to ensure that exposure is adequately controlled. 'Adequately' is defined in regulation 7 without any reference to reasonableness or the foreseeability of risk: it is a purely practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else. It cannot be adequate control to oblige an employee frequently to wear powdered latex gloves when other barriers are available."

The court in paragraph 23, be it noted, had regarded the total elimination of the need to wear latex gloves (the hazardous substance there in question) as not practicable. Here it is common ground that total elimination of the exposure to the hazardous substance was entirely practicable. All that it required was the installation of local exhaust ventilation such as was already in place for most of the work involving this risk, just not for the temporary repair work.

28. The claimant's position here is therefore stronger even than it was in Dugmore. Regulation 7 unambiguously provides that the employer shall, if, as here, it is reasonably practicable to do so, prevent the exposure of their employees to hazardous substances. They failed in that plain duty.
29. I agree with all that my Lord has said on the other, perhaps even less promising, grounds of appeal. Having regard to the comparatively small size of this award, it is puzzling indeed why the appeal has been pursued with quite such vigour. It is dismissed.

ORDER: Appeal dismissed with costs to be subject to detailed assessment if not agreed.

(Order does not form part of the approved judgment)