England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY
COURT (MR RECORDER ELLIOTT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th April 2005

Lady Justice Smith : This is the judgment of the court

Introduction

1. This is an appeal by the defendants from the judgment of Mr Recorder Elliott given in the Sheffield County Court on 28^th September 2004.  The Recorder found the defendants/appellants liable to compensate the claimant, Mr Alan Brookes, the respondent to this appeal, for injury to his hands caused by the use of vibrating tools during the course of his employment with them as a fitter.  The respondent was awarded £4,780 in damages following the Recorder's finding that the appellants had negligently exposed him to harmful vibration throughout the whole course of his employment, which began in 1982. The appellants appeal against that decision, with the permission of the lower court, contending that liability did not arise until the mid-1990s.  In the event that the appeal on liability succeeds, the appellants contend that the damages should be reduced.

 

The Factual Background

2. Mr Brookes was born in 1946 and has been employed as a fitter all his working life.  Between 1961 and 1982, he worked for various employers but was not required to use vibrating tools with any regularity.  He joined the first defendant, South Yorkshire Passenger Transport Executive, as a motor fitter, in 1982.   The first defendant was responsible for the operation of a large fleet of buses and employed about 250 fitters on work of maintenance and repair. This work entailed the regular use of vibrating tools, in particular pneumatic impact wrenches, chisels, drills, saws and grinders.  In 1986, the first defendant ceased to exist; the business was 'privatised' and was taken over by Mainline Group Limited, the second defendant. However, the claimant's work and his use of vibrating tools continued as before.  Although the defendants are separate entities, they were jointly represented at the trial and the Recorder was invited to treat them as one. They have been jointly represented on this appeal.  
3. In the winter of 1999, Mr Brookes first noticed blanching of the tip of the ring finger of his left hand.  Over the course of the following months, this progressed so as to affect the middle and ring fingers as far as the proximal interphalangeal joints.  In due course, this condition was diagnosed as vibration white finger (VWF) or, as it is now more commonly known, hand arm vibration syndrome (HAVS).  Fortunately, Mr Brookes' symptoms are not severe and do not appear to be increasing. At the trial, there was no dispute as to the nature, extent or cause of the respondent's symptoms of VWF. The Recorder's overall assessment of the quantum of damage was not challenged.    

The Issues at Trial

4. The respondent had to prove that the appellants had exposed him to a vibration dose that was foreseeably likely to cause harm. The evidence about the frequency and length of time for which he had used the various vibrating tools that were capable of causing harm was hotly disputed. The Recorder found that the claimant's average daily exposure to vibration exceeded 2.8 metres per second per second, the level recognised to give rise to a significant risk of injury.  There is no need to consider that finding further, as the appellants accept that it cannot be challenged in this Court.  
5. The respondent also had to prove that the appellants were or ought to have been aware that the use which their fitters made of vibrating tools gave rise to a risk of VWF. The respondent alleged that the appellants should have been aware of a potential risk from 1975 when the British Standards Institution published 'Draft for Development  -  Guide to the evaluation of exposure of the human hand-arm system to vibration'.  This publication was known as DD43. It contained a description of the cause and symptoms of VWF and gave advice about the levels of exposure which were thought to give rise to a risk of harm. It stressed that it was not possible to give definitive advice as further research was required.  The respondent's primary case was that the appellants should have been aware of this publication from about 1975 and, by the time he joined the workforce in 1982, they should have had time to assess the risk created by their use of vibrating tools and to take appropriate steps to protect the fitters from harm. At the very least, they should have recognised the existence of a risk and warned their fitters about it. 
6. In the alternative, the respondent contended that, even if the appellants could not be criticised for not knowing about DD43, they should have been aware of the risk of VWF by 1987, when the British Standards Institute published (as BS 6842: 1987) the 'British Standard Guide to the Measurement and evaluation of human exposure to vibration transmitted to the hand.' By this time, further research had been carried out.  Far more was known about the effect of vibration on the hands and BS 6842 provided much more specific advice for employers, users and manufacturers than had been possible in 1975.  The publication included a review of the state of knowledge about the relation between vibration dose and the effect on the hands.  It provided information about the methods by which a cumulative vibration dose could be measured.  It identified a vibration dose of 2.8 metres per second per second as the level at which 10% of an exposed population of workers could be expected to develop symptoms. It gave detailed advice about preventive measures.   The respondent's alternative case was that, within a year or two of 1987, the appellants should have measured the vibration dose of their fitters.  They would have found that the dose was potentially harmful and should have taken steps to reduce or avoid the risk of harm.
7. The appellants averred that they were not aware of either DD43 or BS 6842 at the times of publication. They did not know that their fitters were exposed to the risk of harm from vibrating tools. They had had no complaints from their workforce or the trade union about VWF. The first case of VWF of which they were aware within their workforce arose in the late 1990s. They called evidence from their safety officers who said that they had endeavoured to keep abreast of developments in knowledge of occupational diseases but had been unaware of any potential risk to the fitters from vibrating tools.  The safety officers had attended conferences with safety officers from other employers in the transport industry but the risk of VWF had never been discussed.  The HSE had never advised the appellants about VWF and had not mentioned it even when on the premises measuring noise exposure. The appellants contended that they could not reasonably have been expected to be aware of the risks until 1994, when the Health and Safety Executive (HSE) published guidance on VWF in the form of a booklet called 'Hand Arm Vibration H5(G)88'.  Until then, it was too much to expect of them that they should have known of the risk.  They should not be fixed with constructive knowledge of the risks of VWF until that date.  The appellants accepted that, once they had become aware of the risk, they could and should have investigated the vibration levels and have addressed the risk revealed.         
8. There was no disagreement as to the correct legal test to be applied.  Both parties relied upon the well known statement of the law set out by Swanwick J in Stokes v GKN (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at page 1783 where he said:

"From these authorities I deduce the principles that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of the common sense or newer knowledge, it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does, and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

9. The Recorder was also referred to the judgment of Mustill J, as he then was, in Thompson v British Shiprepairers [1984] QB 405, at page 415.  After referring to the judgment of Swanwick J, Mustill J continued:

"I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive, as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed 'without mishap'. Yet even the plaintiffs have not suggested that it was 'clearly  bad', in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow."

10. The appellants contended that to expect them to have been aware of the risks of VWF and to have taken any investigative steps before 1994 would have been to expect them to plough a lone furrow. 
11. The Recorder held that the appellants should have known of the potential risk of VWF in 1975 on the publication of DD43. He also held that, on gaining that knowledge, the appellants should have investigated their vibration levels and that, had they done so, they would have found that the fitters' daily vibration dose exceeded 2.8 metres per second per second.  Measures would have had to be taken. Had that been done, by the time the respondent started work in 1982, the working conditions would have been such that he would not have developed VWF.  As he had already found that the vibration exposure had in fact been such as to cause the respondent's VWF, the Recorder found the appellants liable for all the harm he had suffered.        

The Appeal on Liability

12. In the appeal, Mr Nolan for the appellants submitted that there was no evidence upon which the Recorder could properly have held that the appellants had had constructive knowledge of the risk of harm from VWF from 1975.  He observed that the Recorder had not explained his reasons for his conclusion but had only reviewed the evidence on which it was apparently based. This included, first, the fact that the Mechanical Engineering Industry Standards Committee which had supervised the preparation of DD43 had upon it representatives of a number of organisations of which the appellants might have been members or from whom they might have received information.  These organisations included the Institute of Mechanical Engineers, the Machine Tool Trades Association, the Motor Industry Research Association and the Society of Motor Manufacturers and Traders Ltd. However, as Mr Nolan for the appellants pointed out, there was no evidence that the appellants had been members of any of those organisations and no evidence that they received any information from them about DD43.  Nor was there any evidence of the extent to which DD43 had been publicised.  No articles were produced from trade magazines or the like. 
13. Second, the Recorder mentioned the evidence of the members of the appellants' staff who had been responsible for safety during the material period.  It had been the appellants' case that these men had taken reasonable steps to keep abreast of developments but had not become aware of the risk of VWF until the late 1990s.   The Recorder had not made any comment upon this evidence and it was not clear that he had found that the safety officers' efforts had been insufficient. However, as Mr Carling for the respondent pointed out, the fact that these members of staff had not learned of the risk of VWF until after a time when the appellants had conceded that they ought to have been aware of it demonstrated that the appellants' staff had not in fact kept reasonably abreast of developments.  
14. Mr Carling submitted that there was evidence upon which the Recorder had been entitled to find as he did. Although he did not specifically refer to the evidence in this part of his judgment, the Recorder had heard evidence about the size and resources of the appellants which was relevant to the question of what could be expected of them.  The appellants were not a small organisation.  They were responsible for the operation of a large fleet of buses.  They had staff with specific responsibility for the safety and welfare of the workforce. From 1981 they had had an occupational health department.  They had about 250 fitters, who would be potentially at risk of VWF. While the appellants could not be compared with one of the large nationalised industries such as the National Coal Board, more could be expected of them than could be asked of a small company with a few employees.  They should have been aware of DD43 from the time of its publication and the fact that they were not simply demonstrated that their safety officers were not keeping abreast of developments as they should have been doing.      
15. In our view, the Recorder's decision was unsatisfactory in that he did not explain why he decided that the appellants should have known of DD43 in 1975.  Even though he reviewed the evidence he thought relevant, he did not give any indication of what weight he attached to any aspect of it. He did not say whether or not the safety officers had carried out their duties conscientiously. He appears to have attached importance to the constitution of the Committee responsible for the preparation of DD43 but did not remark on the absence of any direct evidence of a connection between the appellants and the bodies represented on that Committee.  Whilst we accept that a decision of the kind the Recorder had to make on this occasion will often involve the drawing of inferences and the exercise of judgment, the decision must be founded in the evidence and must be adequately explained.  In our view, the Recorder's conclusion on this point cannot stand. 
16. When we examine the relevant evidence for ourselves, we conclude that there was insufficient evidence to support the conclusion that the appellants ought to have been aware of DD43 in 1975 or even shortly thereafter. We note the absence of any evidence of how and to what extent DD43 was publicised and discussed or written about in trade publications.  We note the absence of evidence of a connection between the appellants and the organisations represented on the Committee.  We note that DD43 did not promulgate a British Standard; it gave provisional advice and called for contributions to the advancement of knowledge on the subject of VWF.  We do not think that, in the absence of evidence, we could properly infer that DD43 must have been widely discussed at health and safety conferences or written about in trade journals which the appellants ought to have read and heeded.  In our view, bearing in mind the duty of the reasonable employer, as set out in Stokes and Thompson supra, it is not reasonable to conclude that the appellants should have been aware of DD43 in or about 1975.
17. In the light of that conclusion and the conclusions which will follow, Mr Nolan's second criticism of the Recorder's judgment ceases to be of any importance. Mr Nolan had pointed out that the Recorder had erred in finding that, if the appellants had investigated their fitters' exposure in 1975, they would have found that it exceeded 2.8 metres per second per second. It was not possible to measure an average daily vibration dose until well into the 1980s, possibly until even as late as 1987. Mr Carling accepted this criticism. However, as we have said, the point is no longer of importance.  
18. We turn now to consider the question of whether the appellants should have been aware of the risk of VWF at some later date up to and including 1987 when BS 6842 was published.  As we have said, that was the respondent's alternative case at the trial and was relied upon in the respondent's notice in this Court. 
19. Mr Carling submitted that, by 1987, a substantial amount of additional information about VWF had gone into the public domain. In 1981, the Industrial Injuries Advisory Committee had published a report in which it recommended that VWF should become a prescribed disease. In particular, VWF caused by the use of the use of a pneumatic chisel was to be prescribed.  In 1985, that advice had been accepted and VWF caused by the use of various vibrating tools became a prescribed disease. Although the transport industry was not specifically singled out as being an industry to which the new arrangements applied, Mr Carling submitted that prescription was an event of real significance of which all employers who used vibrating tools ought to have been aware.  The publication of BS 6842 in 1987 provided employers with the advice that they needed in order to measure their workers' exposure and to take steps to protect them. Unlike DD43, BS 6842 did impose a British Standard. No employer whose workers used vibrating tools could be heard to say that he was unaware of it.  
20. Mr Nolan submitted that, even by 1987, there was no basis upon which the appellants could be held to have constructive knowledge of the risk of VWF from vibrating tools.  He accepted that scientific knowledge had advanced considerably since 1975. He sought to rely on the absence of evidence of the way in which BS 6842 had been disseminated. He relied on the evidence that his safety officers and occupational health department had not by then become aware of the risk. That was a difficult argument because those members of staff had still not become aware of the risk by 1994 at which date it was conceded they should have done. Mr Nolan sought to draw a distinction between a publication by the British Standards Institute, which, he said, was not aimed primarily at employers, and one published by the HSE which was. 

Conclusions on Liability

21. In our view, the publication of BS 6842 in 1987 was of far greater significance for employers than DD 43 had been.  It promulgated a British Standard.  It was published against the background that VWF was now a prescribed industrial disease.  Although there is an absence of evidence of the extent to which BS 6842 was disseminated or discussed in trade journals, we consider that an organisation of the size and with the resources of these appellants ought, in compliance with their duty to keep reasonably abreast of developments relevant to the welfare of their employees, to have had knowledge of BS 6842 at or shortly after publication. 
22. Further, we consider that it would be reasonable to expect the appellants to have investigated the extent of their fitters' exposure to vibration and to have instituted remedial measures within two years of learning of the potential risk.  Their duty was to apply their new-found knowledge with reasonable expedition.  In our view, two years would have been sufficient time for the appellants to instruct experts to measure the fitters' exposure and to recommend remedial steps and for the appellants to have to put those steps into effect. That timescale is consistent with the time it took for the appellants to act once they had in fact appreciated the risk. There is now no dispute that investigation would have revealed a significant risk and that effective remedial measures could have been taken.  Accordingly, we set aside the Recorder's finding that the appellants were liable in negligence to the respondent throughout the whole of his employment and substitute a finding that they were negligent from 1989.
23. We wish to stress that this decision should not be taken as a finding of general application that liability for VWF in fitters working in the transport industry arose in 1989.  In another case, there may be evidence that would enable a judge to conclude that the particular employer was or should have been aware of the risk of harm to its employees much earlier than 1989, possibly because it was or should have been aware of DD43. This depends, first, on the evidence put before the Court and the inferences that can properly be drawn from it as to the date by which, in the light of its duty to keep reasonably abreast of developments, the employer ought reasonably to have been aware of a potential risk to its employees.  Second, the date of negligence will depend upon the evidence and inferences that can be drawn as to the time it would take for the employer, acting with reasonable expedition, to investigate and remedy the potential problem of which it had become aware. The decision that these appellants were negligent by 1989 is dependent on the evidence given (and not given) in this particular case.     

Should there be Apportionment of the Damages? 

24. The appellants contended that, if they succeeded in putting back the date from which they were liable to the respondent to the late 1980s, the respondent's damages ought to be reduced to take account of the fact that he had already suffered some damage before their liability began.  The Recorder had not had to address this issue because he had found liability throughout the respondent's employment. 
25. Mr Nolan relied on the decision in Allen v British Rail Engineering Ltd [2001] ICR 942 in which the Court of Appeal upheld the decision of Smith J to reduce the damages of a claimant part of whose exposure to vibration had been non-negligent.  Mr Carling also relied on Allen.  He accepted that, if the evidence warranted it, the Judge was entitled to make a reduction for non-negligent harm.  However, he submitted that there should be no such reduction in this case, on the assumption that the appellants' liability began in 1989, because the respondent had only begun to suffer symptoms several years later. If the appellants had complied with their duty, the respondent would probably never have had any symptoms at all. Second, he submitted that, even where apportionment might be justifiable, it would only be made where the evidence was such as to enable to the judge to make a sensible assessment of the extent of the effects of the exposure before and after the date at which negligence began. He submitted that there was no such evidence in the present case.  Moreover, he submitted that the burden of producing that evidence lay on the party seeking to justify the reduction, namely the appellants.      
26. It is now generally accepted that the development of VWF is dose-related and that all exposure to vibration causes damage and will make a contribution to the eventual development of symptoms.  That was the effect of the evidence of Mr D.C. Berridge, a consultant vascular surgeon and the sole medical expert instructed in this case.  However, the objective of an award of general damages is not to compensate the claimant for the amount of physical damage suffered but the effect of that damage upon him. It is also generally accepted that different people have different susceptibility to the effects of vibration.  That is recognised in the publications to which we have earlier referred and was also confirmed by Mr Berridge.  Some claimants will develop symptoms after a short period of exposure; others will be exposed for many years before any symptoms are noticed.  In a case of VWF, two claimants who have worked side by side doing the same job for the same period of time may be affected very differently. Claimant A, with high susceptibility, may have developed symptoms after, say, five years in the job and these may have increased in severity over the ensuing years.  Claimant B, with lower susceptibility, may not have developed any symptoms until after, say, 15 years' exposure. By the date of trial, they might still be mild. The full verdict damages of the two claimants would be very different. However, if the judge finds that the employers' liability operated from, say, ten years after the start of the employment, Claimant A should, on principle, receive only such sum as reflects the deterioration in his condition that can be attributed to the exposure since the date of negligence. He would have suffered some permanent symptoms even if the employer had taken appropriate steps at the right time. However, it is not always possible for the judge to make an appropriate reduction in the damages and, if the material is not available to enable even a broad brush approach, the claimant will receive full damages because the negligence has made a material contribution to his condition. Claimant B, who did not develop symptoms until some years after the date of negligence, can properly argue that he should receive full verdict damages (despite the fact that he had already had some exposure to vibration before the date of negligence) because he would never have developed any symptoms if it had not been for the employer's negligence.
27. The respondent in this case did not develop symptoms until 1999, about 17 years after his vibration exposure had commenced and ten years after the date by which the employers should have taken remedial steps.  Even then, his symptoms have not become severe.  It seems to us that this respondent is in the position of claimant B in the example we gave above. He can properly argue that, but for the appellant's negligence, he would never have had any symptoms. In our view, there is no evidential basis to justify any reduction of his damages to take account of the latent damage he had suffered before 1989.  Mr Nolan sought to persuade us that Mr Berridge's confirmation that all exposure causes some damage was sufficient to justify some reduction in the damages.  We are quite satisfied that it goes no way towards laying the necessary evidential basis. We are quite satisfied that there should be no reduction.

Result

28. In the event, the appellants' partial success on the issue of liability has not resulted in any change in the overall result of this claim. The respondent is still entitled to damages of £4,780.  The Recorder added interest at the rate of 2% per annum from February 2003 until the date of judgment in September 2004, producing a total award of £4,938.33.  The respondent should be entitled to interest at the judgment rate from September 2004 until payment.