England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE VOSPER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th February 2010

Lord Justice Waller:

1. Mr Vance-Daniel appeals against the judgments of HHJ Vosper QC, which was handed down on 26 May 2009, by which the judge dismissed his claim for damages for personal injury against his erstwhile employer, Corus.
2. The judge found that the appellant suffered from Hand-Arm Vibration Syndrome ("HAVS") caused by the use of certain vibration tools while he was employed by Corus. He would have awarded the appellant £11,000 by way of damages if he had found Corus in breach of duty. He found, however, that Corus was not in breach of duty and dismissed the appellant's claim. There is no challenge to the judge's findings of fact.
3. He found that, from about 1975, Corus should have been aware of the dangers of HAVS being suffered from the use of vibrating tools. He found that the appellant used such vibrating tools between 1975 and 1995. He heard evidence from the appellant himself. He heard some evidence from a fellow worker giving evidence for the appellant and he heard evidence from a Mr Richard Williams, who was described as the Planning Engineer who gave evidence for Corus.
4. The evidence of Mr Vance-Daniel was to the effect that he used vibration tools for something over 2½ hours per day. It is fair to say he pleaded five hours a day but his evidence, and when he came to trial, was 2½ hours per day. No one suggested that he was being dishonest in giving his evidence. Calculating precisely the amount of hours of use of the vibration tools it not that easy, particularly as people are prone to exaggerate by reference to the actual use as opposed to what is called the "trigger period", when they are actually exposed to vibration. Mr Richard Williams evidence was to the effect that Mr Vance-Daniel used these vibration tools for a very much lesser period.
5. In any event, the judge had to assess all that evidence and his conclusion is all that matters for the purpose of the appeal. He found that Mr Vance-Daniel was exposed to vibration of an impact wrench for between 60 and 90 minutes a week, that being on two separate days, i.e. just over 30 minutes on each of those days. He found, more importantly, that he was exposed to vibration by virtue of the use of an angle grinder and he found that when he used such an angle grinder it was for more than half a shift -- a shift was some eight hours. Thus he found that that the angle grinder was used for somewhere in the region of four hours, and he found that that had occurred, as the judge put it, "on no more than one day each week".
6. The regulations and guidance on exposure to vibration measures in units of acceleration (that is minutes per second squared), adjusted to a standard reference of 2 hours, so one gets the calculation m/s² A (8). The relevant guidelines were the British Standard, dated 1987. There became established an "action level" of vibration of 2.8m/s² A(8). That is a calculation seeking to assess the amount of vibration that an employer will suffer by use of the tool over a period of time.
7. There was no doubt on the judge's findings that, so far as the use of the angle grinder was concnered when that was used for half a shift, the appellant was exposed to vibration in excess of the 2.8m/s². It is further common ground on the judge's findings that the exposure in relation to the impact wrench in the two periods was below that level, but it is relevant that that exposure was occurring as well as the exposure with the angle grinder.
8. The judge recognised that the 2.8m/s² was not a safe level of exposure and he accepted that damage could be caused at a lower level of exposure. The question, however, that he had to decide was whether Corus as an employer should reasonably foreseen that there was a risk to the appellant being exposed to the vibration that he had found he was exposed to over the years. Obviously, if they should reasonably have foreseen the risk a breach of their duty of care would be established.
9. No one suggested that they had acted in breach of any regulations. The simple question was: what should a reasonable employer have in mind at the time that the appellant was employed by Corus? It is perhaps important to stress that no other employees, employed in the same way as the appellant, complained of suffering from HAVS, so they had nothing of that natire to draw their attention to the possibility that injury was being suffered.
10. What the case ultimately turns on is what a reasonable employer should have discerned from the British Standard Guide BS6842 dated 1987. It is, however, right to put that British Standard in context in that, prior to that time, there had been a guide BS DD43 (1975) "Guide to the Evaluation of Exposure of the Human Hand-Arm System to Vibration". Mr Hallam, who was a consultant engineer and expert witness, whose statement was before the judge, said this about that guide:

"The introduction also explained that VWF [that is Vibration White Finger, which is the same as HAVS as I understand it] does not result from the casual use of vibrating tools but from the regular prolonged use normally found only in industry. On the subject of duration of exposure the draft said that it was expected that a regular user in industry would be subjected to at least 120 minutes cumulative exposure per day."

11. That was the way in which matters were put in that guide. When one then comes to BS 6842, one sees a constant reference to the word "daily". The introduction (second paragraph) "The vibration exposed as required to cause these disorders are not known exactly with respect to either the vibration magnitude frequency direction or the daily and cumulative exposure duration". One finds under "General Considerations" a little subparagraph which says:

"that the matters or working conditions are influenced by the duration of exposure per working day"

12. So, when one comes to the relevant working page of the guide, it is in the context of "daily" having become an important criterion, and what one finds at page 119 is the following. First, the wording:

"It appears that, with normal tool usage, symptoms do not usually occur if the frequency weighted acceleration is below about 1 m.s-2 r.m.s.

There is some evidence suggesting that, if a tool having a frequency weighted vibration magnitude of 4m.s-2 r.m.s. were to be used regularly for 4 h a day, there may be an occurrence of symptoms of blanching in about 10% of the vibration-exposed population after about 8 years."

13. The note 1 to this paragraph reads:

"The values presented in table five are based on exposures which are regularly repeated on a daily basis."

Then there is a table at the bottom; the left-hand column has a daily exposure. It then has a lifetime of exposure, and it is to that table which the note referred.

14. What the judge recognised in his judgment was that counsel had agreed that the question that he had to decide was whether the appellant had been regularly exposed to vibration above the action level. The judge also recognised in his judgment that the word "regular" in one sense was not the key question. The key question was really frequency; but nevertheless it is the word "regular" which is used in the British Standard. So what the argument came down to before the judge, and has come down to before us can be put in this way. Mr Mallett submits that when the regulation uses the phrase "daily" it means that is the amount of exposure in any day; "regular" simply means regular exposure to vibration upon that daily basis. Mr Mallett submits that an occurrence on a daily basis once a week was "regular" exposure.
15. Mr Edwards says "daily" means something more than once a week. He accepts that it would not be necessary to show that the vibration occurred each and every day, but he submits that the way in which the word "daily" appears in the British Standard indicates that even if it is not every day; daily does not mean weekly and requires many days. He submits that an employer would not foresee exposure as regular on a daily basis when the occurrence was simply once a week.
16. There has been some suggestion that it is for the court to lay down what would or would not be on a regular basis. That does not seem to me to be the role of the court. The correct approach is to pose the question: what would a reasonable employer in Corus's position deduce from the British Standard in relation to the appellant's employment? The appellant was exposed to vibration in excess of the action number but not more than once a week. Would a reasonable employer say that he was being exposed regularly on a daily basis? In my view, a reasonable employer would not so deduce, and in those circumstances it seems to me that the judge's conclusion was entirely right.
17. It is fair to say that the judge did a cross-check by reference to the 2005 regulations. Mr Mallett says that that was not a permissible exercise because calculations were different in those regulations or done in a different way and counsel had no opportunity to address the judge on those regulations. I have not found it necessary to go into that cross check. It seems to me that, simply looking at the British Standard on its own, the judge came to the right conclusion in this case and this appeal will be dismissed.

Lord Justice Stanley Burnton:

18. I agree.

Sir David Keene:

19. I also agree.

Order: Appeal dismissed