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 TAMESIDE COUNTY COURT
SITTING AT MANCHESTER
(MR RECORDER HAND QC)

		Royal Courts of Justice Strand London, WC2
		12th March 2003

1. LORD JUSTICE ALDOUS: I invite Lord Justice Clarke to give the first judgment.

LORD JUSTICE CLARKE:

Introduction

2. On 8th May 2000 the respondent suffered an injury to his left hand while working for the appellant, Vauxhall Motors Ltd, at their factory at Ellesmere Port. His claim for damages for negligence and breach of statutory duty was tried on 31st October and 1st November 2002 before Mr Recorder Hand QC. The Recorder held that the appellant was liable to the respondent, but reduced the quantum by 50 per cent because of the respondent's contributory negligence. Since it had been agreed that the respondent would recover £4,000 on a full liability basis, judgment was given on 1st November for £2,000.
3. The appellant appeals on the ground that the Recorder was wrong to hold that it was liable, whereas the respondent cross-appeals on the ground that the Recorder was wrong to find him guilty of contributory negligence.

The facts

4. The injury occurred when the respondent was working as a production operator and using an electrically powered Stanley torque gun. There was a gun either side of the production line, a left-hand gun and a right-hand gun. The respondent was using the left-hand gun, and was doing so with both hands because it is a two-handed operation. The purpose of the operation was to fit a rear seat belt bolt bracket to the left-hand side of a Vauxhall Astra body shell. The gun was controlled by a Stanley controller which was designated C160. Both the gun and controller were part of what is known as the QCOS tool system. The Recorder described the system in this way in paragraphs 6 and 7 of his judgment:

"6. Indeed, the whole point of this equipment which has been called 'state of the art' and which might also be described as 'smart tooling' is that it eliminates any need for skill on the part of the operator. The seat belt bracket bolts have to be properly fitted using the correct amount of torque so that they are neither under-tightened (in which event they would vibrate loose) or over-tightened (in which case they might fail due to stress). Originally an operator would have performed a similar operation to this using purely manual equipment such as a torque wrench which would have to be set to the correct torque and operated manually so that there would be some element of skill on the part of the operator.

7. This 'state of the art' Stanley torque gun is controlled by the control box which has some of the features of a computer. It no doubt has some form of electronic chip and some form of storage medium. It has ... a digital read out and key pad. It can be set, by the input of data, to operate within certain parameters."

5. Electronically the maximum torque was 70Nm and the minimum 30Nm with a torque set point of 35Nm. However there was a mechanical restriction which limited the maximum torque to 58Nm. The method of working was as follows. Either the respondent as operator or someone else put a bolt into the bolt hole. The operator then applied the socket head of the gun to the head of the bolt, holding the upper part of the barrel of the gun in his right hand and the lower part in his left hand. The gun was activated by pressing a trigger which rotated the head of the wrench, which in turn tightened up the bolt. It did so in two phases. The first phase was at a higher speed and the second at a lower speed and lower torque setting. As I understand it, that was to avoid excessive torque and to ensure that the correct torque was applied when the head of the bolt was up against the flat of the car body. The whole operation took no more than two seconds or so.
6. There were three lights on the body of the gun: red to indicate incorrect torque, amber to indicate an incorrect angle and green to indicate a satisfactory result.
7. The respondent was an experienced operator who had worked for the appellant for some 14 years and used the right-hand gun for two years. Although he had used the left-hand gun for a relatively short time, the guns worked in the same way, except for the direction of the torque.
8. The accident occurred after the respondent had completed a number of operations on different bolts. The Recorder held that the respondent sustained an injury when he felt a sudden upward movement of the gun, which he described as a "kickback", which caused his left hand and left thumb to be pushed back.
9. The respondent was not immediately very concerned, because he went on working from about 7.15am, when the accident happened, to about 11.45am. He reported the accident and went to the surgery either just before or after lunch. He then received medical and subsequent hospital treatment, but it was only some two weeks later that it was discovered that he had fractured the scaphoid bone in his left hand. It is not in dispute that the fracture was caused by the accident.

Previous kickbacks

10. Both parties rely upon the fact that there had been previous kickbacks, albeit for different purposes. The Recorder held that there had indeed been kickbacks in the past. In particular there was one on 22nd October and another on 15th November 1999. He also held that operators had complained about kickbacks before the accident. The Recorder concluded that there was evidence to indicate that, as he put it, the phenomenon of kickbacks was known before the accident. The Recorder said this in paragraph 21:

"I think the truth of the matter is that sometimes the claimant and possibly other people mentioned this phenomenon of kick back as an observation, not intending that anything was to be done about it and, indeed, in those circumstances nothing would be done about it. I think that on other occasions the operators were intending to make a more formal complaint and I think that on some occasions there was investigation and on other occasions there may not have been investigation."

11. The Recorder then described the post-accident investigations. There was an investigation which included what was called a risk assessment. There was also a Trade Union investigation and later an investigation carried out by Stanley, the manufacturers of the equipment, which was known as the Stanley investigation. The Recorder said this with regard to the Stanley investigation, in paragraph 23:

"The outcome of the Stanley investigation was that there was an explanation for the phenomenon of kick back to do with misalignment of the body. In some of the other material it seems there may have been operator error in the sense of double triggering of the equipment. On other occasions there seem to have been no explanation for the phenomenon. ... I detect in the emails a tension of a sort between the engineers who were putting this equipment on the bench or jig I have referred to earlier and obtaining read outs from it that indicated that the equipment was functioning perfectly normally and the operators who were reporting kick back occurring from time to time."

12. The Recorder concluded that there was a conflict between the appellant's engineers and maintenance people, who were attempting to investigate the problem, and the operators. The former tended to blame the operators, whereas the operators said that there was something wrong with the equipment.
13. The Recorder concluded in paragraph 25 that the position at the time of the accident was that for a variety of reasons, some of which he said might never be capable of investigation, it was known that the tool was prone to unexpected kickback.

The issues

14. The key issues before the judge, and indeed on this appeal, may be considered under three heads: (1) the Stanley gun; (2) risk assessment; (3) contributory negligence.

(1) The Stanley gun

15. The respondent alleged at the trial that the appellant was in breach of regulations 4 and 5 of The Provision and Use of Work Equipment Regulations 1998 ("the 1998 regulations") which provide, so far as relevant, as follows:

"Suitability of work equipment

4(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. ...

(4) In this regulation 'suitable'-

(a) ... means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person; ...

Maintenance

5(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

16. The Recorder held that the question he had to answer under this head was whether there was an inherent defect in the equipment in the form of an intermittent mechanical defect. If the answer had been yes, he would have held that there was a breach of regulation 4 and/or 5 of the 1998 regulations. However, the Recorder held that there was no such defect in the equipment.
17. In reaching his conclusion he considered the evidence of Mr Hallam, who was an expert jointly instructed by both parties. Of his evidence the judge said this in paragraph 27:

"Mr Hallam, the joint expert, was of the view that although he could point to nothing wrong with the maintenance of the equipment and on looking at the spreadsheets relative to the Stanley investigation he could see no evidence that the equipment was working outside its parameters, nor could he find in relation to any of the instances which he had set out in his report ... any evidence of the equipment being in any way at fault, nevertheless he, as I put it in the course of argument with counsel, clung on to the concept that there must be something wrong with this equipment because there were a series of complaints about it."

18. The Recorder then expressed his conclusion thus in paragraph 28:

"I cannot accept Mr Hallam's evidence on this matter. It seems to me that the evidence is all one way and it is to the effect that there has never been found to be anything wrong with these torque guns. They work as they were always intended to work within the parameters that were set for them by the manufacturers and by Vauxhall."

19. The Recorder held that there was no breach of regulation 4 and/or 5 of the 1998 regulations. The respondent says that he was wrong so to hold.

(2) Risk assessment

20. The respondent made a number of further allegations before the Recorder which were held to be misconceived and which are no longer relevant. However, he also made an allegation which succeeded. It was that the appellant negligently failed to carry out a risk assessment with regard to the operation of the Stanley gun and that that failure was causative of the accident.
21. It was and is common ground that no risk assessment was carried out before the accident. The respondent had pleaded a breach of the duty contained in regulation 3 of The Management of Health and Safety at Work Regulations 1992 ("the 1992 regulations") which is entitled "risk assessment" and provides:

"(1) Every employer shall make a suitable and sufficient assessment of—

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; ..."

It is right to add that regulation 15 of the 1992 regulations is entitled "exclusion of civil liability" and provides:

"15(1) Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings."

22. Having regard to regulation 15 it is common ground that the relevance of regulation 3 is that it helps to identify the standard of care to be expected of a reasonable employer. It is however conceded, to my mind correctly, that the Recorder was right to hold that the appellant should have carried out a risk assessment well before the accident, especially having regard to the previous experience of kickbacks. The real issue before the Recorder, and indeed on this appeal under this head, is whether the failure to carry out a risk assessment was causative of the accident to the respondent.

(3) Contributory negligence

23. As indicated earlier, the Recorder held that the respondent was contributorily negligent to the extent of 50 per cent.

Discussion

24. There is some overlap between the three issues. As I see it, however, logically the first question is whether the appellant was in breach of regulation 4 and/or 5 of the 1998 regulations, because, as the Recorder observed, if it was, the appellant was liable to the respondent because there can be no doubt that any such breach was causative of the injury to the respondent.
25. For this reason I consider first whether the Recorder was correct to hold that there was nothing wrong with the gun, which always worked as intended within the parameters that were set for them by the manufacturers and the appellant.
26. Mr Rigby submits, on behalf of the respondent, that the Recorder was wrong so to hold, for these principal reasons (which I take from his skeleton argument):

(1) The evidence was that

(i) settings were adjusted after some of the kick back incidents;

(ii) it was expected that when used the torque gun would sometimes under or over tighten (when a red light would show) and sometimes misalign the bolt (when an amber light would show);

(iii) the torque gun sometimes (or perhaps even on numerous occasions ...) kicked back.

(2) The [Recorder] ought to have been applying the criteria of Regulations 4 and 5 of [the 1998 regulations] rather than the manufacturer's performance criteria. In terms of safety the equipment could ... operate within those parameters and yet be unsuitable or inadequately maintained under Regulations 4 or 5.

(3) The [Recorder], having found that the torque gun was prone to kick back and that there was a foreseeable risk of injury to the operators from kick back, was wrong not to ... find that the torque gun was unsuitable under Regulation 4(1) and (4) [of the 1998 regulations].

(4) On the clear evidence that settings for the downshift were adjusted after earlier incidents, the [Recorder] should in any event have found that the torque gun was not maintained in an efficient state, in efficient working order and in good repair and that the Appellant was in breach of Regulation 5.

27. In his oral submissions Mr Rigby stressed that the Recorder was wrong to determine whether there was a breach of regulations 4 and 5 by reference to the parameters set for their operation by the manufacturers and the appellant.
28. For my part I agree that that is not the sole consideration, but it is certainly relevant to a determination of the question whether the Stanley gun was "so constructed or adapted as to be suitable for the purpose for which it is used or provided" within the meaning of regulation 4. Mr Rigby further stressed the definition of "suitable" in regulation 4(4) and submitted that the gun was not suitable because it was reasonably foreseeable that as a result of kickback in operation its operation would affect the health or safety of the operator.
29. However, in my opinion Mr Rigby's submission approaches regulation 4 too narrowly. Regulation 4, and indeed regulation 5, are concerned with the physical condition of the equipment, on the assumption that they will be properly operated by properly trained and instructed personnel. To take an example discussed during the course of the argument, an owner of a bus must ensure that the bus is so constructed or equipped as to be suitable for use as a bus. That assumes that the bus will be driven by a competent bus driver. As I read the 1998 regulations, it is regulation 8 coupled with regulation 9 which, by contrast with regulations 4 and 5, are concerned with instructions and training. Thus regulation 8(1) provides:

"Information and instructions

8(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment."

Regulation 9 provides:

"Training

9(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."

30. In these circumstances, the question under this head is, as I see it, whether the gun was suitable for use as a torque gun within regulation 4(1) and the definition in regulation 4(4). On the judge's findings of fact the answer to that question is "yes, the respondent failed to discharge the burden of showing that it was not suitable if operated by a reasonably trained and instructed operator." In my opinion the Recorder was entitled so to hold. It is true that, as Mr Rigby observes, a number of different reasons for the kickbacks were considered. Thus, for example, in a "risk assessment" carried out in July 2000 the report includes the following:

"Incidents recorded in surgery of 'Kickback' from these QCOS guns, viewing the operation, there is an indication of effort to restrain hold this hand held equipment at the end of the cycle.

Tooling settings had been verified. Meet requirement.

Further investigation required. To error proof the tooling. An engineering solution to this is required."

31. Later, in the Stanley investigation, it was discovered that there the problem being considered was the result of a discrepancy in the manufacturing process of the body shop. Mr Rigby identified a number of other possibilities in the course of argument.
32. However, these possibilities were considered at the trial principally through the evidence of Mr Hallam. In the end, Mr Hallam could only say that there must be something wrong with the equipment because there were a series of complaints about it. However, the Recorder rejected that evidence on the basis that there had never been found to be anything wrong with the torque guns. I do not read his conclusion as based solely on the fact that they worked within the parameters set by Stanley and the appellant. At the very end of his judgment the Recorder said this:

"The net result will be that he [i.e. the respondent] will recover £2,000. He recovers that £2,000 in respect of the defendant's failure to assess the risks attached to this equipment properly with the consequent exposure to risk of injury. There is, in my judgment, nothing wrong with this equipment apart from that."

33. In all these circumstances, in my opinion the Recorder was entitled to hold that there was no breach of regulations 4 and 5.
34. I therefore turn to the second issue. This issue is raised by the appellant's appeal notice. Mr Alldis submits on behalf of the appellant that the Recorder was wrong to hold that the appellant's failure to carry out a risk assessment on the gun was causative of the accident.
35. Before considering that submission, I should first set out the basis upon which the Recorder reached his conclusions. They can I think be summarised in this way:

(1) There were unexpected kickbacks before the accident. As the Recorder himself put it, he could not begin to know what the causes were. The causes were a mystery which he could not solve. The Recorder said in paragraph 34, "As I say, it may be caused by misalignment; it may be caused by operator error."

(2) The equipment in normal operation, without any fault in it, was prone to unexpected adverse torque reaction and the operator who is holding the equipment, as the Recorder put it in paragraph 35, "if he is not holding it firmly, is thereby exposed to the risk of injury."

(3) In these circumstances, the failure to carry out a risk assessment did render the respondent and other operators liable to the risk of injury. The Recorder said this at the end of paragraph 36: "If there had been a risk assessment and that had been communicated through the proper channels of communication to the operators, then albeit it might be as simple as Mr Alldis says, you must hang on tightly to this tool at all times, that, I think, would have enabled the operator, in this case Mr Griffiths, to avoid the accident."

36. It seems to me that what the Recorder was in effect saying was that if there had been a risk assessment it would have been plain to the appellant that clear instructions should be given to its employees, that it would in fact have given such instructions, and that it is more probable than not that the respondent would have obeyed such instructions and that the accident would not have occurred.
37. Mr Alldis submits that the Recorder was wrong so to hold. He makes these submissions. The respondent knew that the gun was inclined to kickback unexpectedly and that he must, as he put it in evidence, grab hold of it firmly. In these circumstances, there is no reason to think that anything said to the respondents by way of training, or instruction, or reminder would have made any difference to what happened on the day of the accident. Mr Alldis also submits that the respondent is here complaining of insufficient training and instruction, which were allegations not pleaded.
38. For my part, I would not accept those submissions. As to the pleading point, the Recorder had it well in mind and rejected it. He no doubt had in mind in particular the questions put to the expert. They included question 7, which read:

"Do you agree that the operatives, including the Claimant, ought to have been warned about the tool's propensity to suddenly kick back/jerk and of the risk of injury?"

Mr Hallam's answer to question 7 included the following:

"In my view it would have been appropriate for the operators to be warned. This would have enabled them to take a particularly firm grip of the tool on each occasion and this might have served to reduce the risk."

To my mind the appellant was not taken by surprise at the trial and had every opportunity to meet this point.

39. As to the merits of the point, I would only say this. The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, which of course includes the extent of any risk of injury, and what can and should be done to minimise or eradicate the risk. Mr Alldis correctly concedes that that is the type of risk assessment which should have been carried out, which it may be noted is quite different from the "risk assessment" in fact carried out after the accident. If it had been carried out, it is much more likely than not that it would have identified the risk of injury, albeit of a comparatively low order. In those circumstances, a competent employer would surely have communicated that there was such a risk to the operators, and would at the very least have instructed them that in order to avoid the risk they must, in the judge's or perhaps Mr Alldis' phrase, hang on tightly at all times. The Recorder was, in my opinion, entitled so to hold.
40. In fact the respondent's evidence was that the only instruction that the operators were given was this:

"We just told just to put them on the bolts and look for the lights."

Although I see the problem of giving instructions and reminders to employees (and I understand the submission that such instructions and reminders would be ignored) to my mind the Recorder was entitled to reject the submission. He was entitled to hold, as he must have done, that if operators, including the respondent, had been given both a warning and an instruction, it is more likely than not that this accident would not have happened. Put another way, the Recorder was entitled to reject the appellant's submission that the whole cause of this accident was the respondent's negligent failure to hold the gun sufficiently tightly.

41. Finally, I turn to contributory negligence. In this regard the Recorder said this:

"I accept Mr Alldis' submission that this was a situation that an experienced operator and one who had complained of kick back before, as I find the claimant had done, should have been well aware of and, looking at the defendant's amended defence at paragraph 5, I have come to the conclusion that this accident was contributed to by the claimant's negligence in that he was not handling the torque gun with care and holding it firmly enough at the time of this accident. I think he was equally responsible for this accident. Accordingly, I will give judgment for the claimant but assess his contributory negligence at 50%."

42. Mr Rigby submits that the Recorder was wrong so to hold. He reminds us of two famous passages in the speech of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152. Lord Wright said at page 176 that the degree of want of care which constitutes negligence or contributory negligence must vary with the circumstances. It is a question of degree. The line must be drawn:

"... where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins."

He said at page 178 to 179:

"What is all important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety."

43. Mr Rigby submits, with some force, that that describes the situation here. The operation of tightening the bolts is extremely monotonous; some 42 or 84 an hour. Inadvertence, he submits, is all too likely. Any failure to hold the gun too loosely does not amount to contributory negligence.
44. However, I do not think that we should interfere with the judgment of the Recorder in this regard. Just as I would reject Mr Alldis' submission that this accident was wholly the fault of the respondent, I would reject Mr Rigby's submission that it was wholly due to the negligence of the appellant. As the Recorder put it, the respondent knew that he should hold the gun tightly because of the risk of kickback which could happen at any time with unpredictable results.
45. In conclusion, I would dismiss the appeal and the cross-appeal.
46. LORD JUSTICE JUDGE: I agree with Lord Justice Clarke and the reasons he has given for dismissing the appeal and cross-appeal. On the facts found by the Recorder, he was entitled to Reach the conclusions and to apportion liability as he did.
47. I shall add a few words on one aspect only of the submission by Mr Rigby. In my judgment, work equipment is not to be regarded as unsuitable for the purposes of The Provision and Use of Work Equipment Regulations 1998 when injury results from inadequate control of or mishandling of the equipment which would otherwise have been safe for use by the employee seeking damages for breach of statutory duty. Other causes of action may be available to him, but not this one.
48. LORD JUSTICE ALDOUS: I agree with both judgments.
ORDER: Appeal dismissed with costs; cross-appeal dismissed with no order as to costs; detailed assessment. (Order not part of approved judgment)