Employers must base training on risks they ought to foresee

Howard Fidderman reports on an important appeal judgment on how employers should assess the adequacy of their training provision.

On this page:
“Peculiar” use of dead man’s handle
London Underground wins in county court
Strict liability is not “no fault” liability
Assessment is basis for training
Judge “put the cart before the horse”
Judge’s finding was “perverse”
Ask an ergonomist
Training was not adequate
Box 1: “Dead man’s handle”
Box 2: “A very small woman”
Box 3: Risk-assessment ignorance.

In February, the Court of Appeal handed out an important judgment in the case of Allison v London Underground Ltd¹. The appeal revolved around London Underground’s (LU’s) use of its risk assessment to determine the adequacy of the training it offers its employees and the fact that, under statutory law, it should have based its training on the risks that it should have foreseen, not what it actually foresaw. Further, LU’s consideration of foreseeability should have involved it “investigating” the risks inherent in its operation and consulting an ergonomist about a specific piece of work equipment.

“Peculiar” use of dead man’s handle

Repetitive strain injuries suffered by tube drivers led LU, when designing trains for the Jubilee Line, to consult experts, including ergonomists, and two experienced drivers. Most of the discussions concerned the driver’s seat and armrest, although there was limited consideration of the traction brake controller (TBC), or “dead man’s handle”, which drove the train – in particular, whether it should be capable of both clockwise and anticlockwise movement (as was the case on some lines) or should only operate in a clockwise direction (see box 1). But there was no detailed discussion of the design of the TBC when it came to the introduction of a bevelled or “chamfered” handle for it (this feature had been suggested by the two drivers, who thought it would make the handle more comfortable to grasp).

Latona Allison joined LU in 1996 as a train guard but by 1998 she had trained as a driver on the Northern Line. In November 1998, she developed shoulder strain related to her use of the TBC. After treatment, she returned to work in July 1999 but was transferred to the Jubilee Line, where the rolling stock and driver’s work equipment were more modern and, LU believed, more suited to her small stature (see box 2). Once Allison returned to work, she was monitored and declared fit for full duties in September 2001 after she reported she was not experiencing any problems. By that time, her job involved training other drivers as well as driving trains. In early 2003, however, she developed inflammation of the flexor pollicis longus tendon – which flexes both joints of the thumb – in her right hand and wrist. The condition was caused by strain from the “peculiar” way in which she held the TBC, resting her thumb against the chamfered end of the handle while it was under pressure for prolonged periods (static strain).

LU had not instructed drivers in how to position the thumb, although it had trained them to keep their wrists straight and avoid dorsiflexion (bending them back) because applying pressure while holding the wrist in dorsiflexion could give rise to tenosynovitis (tendon inflammation). By January 2004, LU had rectified this omission by introducing a new element into the training of drivers, advising them of the need to keep their thumbs tucked under the handle and not to let them rest on the chamfered end. Allison has not recovered fully from her condition and is now unfit for work as a driver. She sued LU for damages but, on 25 January 2007, Judge Cowell in the Central London County Court rejected her claim.

London Underground wins in county court

Allison alleged that LU’s risk assessment for the use of the Jubilee Line TBC was inadequate under the Management of Health and Safety at Work Regulations 1999 (MHSW), reg. 3(1) of which states: “Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of [its] employees to which they are exposed while they are at work … for the purpose of identifying the measures [it] needs to take to comply with the requirements and prohibitions imposed upon [it] by or under the relevant statutory provisions.”

Allison also alleged breaches of the Provision and Use of Work Equipment Regulations 1998 (PUWER), which require employers to ensure that:

• “work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided … In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment … In this regulation, ‘suitable’ means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person” (reg. 4); and
• “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” (reg. 9(1)).

Judge Cowell said he accepted expert evidence that, had LU consulted an ergonomist at the design stage of the TBC, the design could have been significantly improved, so as to reduce the type of strain suffered by Allison. Nevertheless, he concluded that the TBC was suitable under reg. 4 because it had not been reasonably foreseeable, at the design stage, that this kind of problem would arise; until Allison’s injury, there had been no cases of tenosynovitis caused by use of the chamfered handle, so there had been no reason to consider any change to the design. He further held that LU’s training satisfied reg. 9 because it had been adequate to deal with the risks that LU had actually foreseen. Allison appealed against the reg. 9 ruling.

Strict liability is not “no fault” liability

Giving the lead judgment in the Court of Appeal on 13 February, Lady Justice Smith noted that although Allison was not appealing against Judge Cowell’s finding under reg. 4, she was “doubtful about the correctness” of the ruling that a risk of strain injury from the use of the chamfered end of the TCB was not reasonably foreseeable. She said that the Court of Appeal in Dugmore v Swansea NHS Trust² had distinguished between the common law duty (for the employer to take reasonable care to avoid reasonably foreseeable risks) and the “more onerous” duty imposed by the Control of Substances Hazardous to Health Regulations 1998 (COSHH). In Dugmore, the court held that the COSHH Regulations “required the employer to go out and discover the risks and to take the appropriate steps. In other words, the duty was ‘strict’”, ie “liability cannot be excused on the ground that it is not practicable or reasonably practicable to avoid the risk.”

Smith LJ emphasised that “strict” liability “is not the same as ‘absolute’ or ‘no-fault’ liability, which is reserved for the much smaller class of obligations which impose on the employer liability for something which [it] could not have avoided even by the exercise of all possible care”. In terms of reg. 9, LU’s duty “to ensure” that Allison was given “adequate training for the purposes of health and safety” implied a mandatory duty, although this did not “mean anything more than that the duty to provide training is mandatory. The employer cannot say that it was too expensive or too time-consuming or not reasonably practicable to provide training. [It] must provide training.” But the “mere fact that the duty to train is mandatory” does not raise the meaning of “adequate” to the high level that Allison alleged, so the regulation did not impose “no-fault” liability.

Assessment is basis for training

Smith LJ noted that, in determining the extent of the liability, Judge Cowell held that adequate training meant “adequate in all the circumstances”; he also “imported some element of foreseeability into the test”. The “problem with that formulation”, she said, is that “it is not at all clear.” The test that Judge Cowell used was not correct: it should rather have addressed “what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view, the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in [its] operations, taking professional advice where necessary … This formulation of the test is consistent with the test applied by this court in Dugmore.”

What LU ought to have known about the risks should be “closely linked with the risk assessment” that LU was obliged to carry out under reg. 3 of the MHSW Regulations, said Smith LJ: “What the employer ought to have known will be what [it] would have known if [it] had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of [its] duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.” (See box 3.)

Judge “put the cart before the horse”

Although Judge Cowell recognised that there was a connection between risk assessment and adequacy of training, Smith LJ said that he wrongly “thought that, once he had decided that the training had been ‘adequate in all the circumstances’ he did not need to decide whether the risk assessment had been ‘sufficient and suitable’. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in [its] operations and takes steps to remove or minimise those risks. They should be a blueprint for action.”

The correct approach as to whether the training had been adequate for health and safety purposes would have seen the judge examining whether LU’s March 2000 risk assessment was sufficient and suitable. But Smith LJ believed that the judge “was saying that it was not necessary to decide on the sufficiency and suitability of the risk assessment because, if training was given in accordance with the results of the risk assessment, the sufficiency of the risk assessment equated to the adequacy of the training … However, the judge had not applied his mind directly to the issue of whether or not the risk assessment was ‘sufficient and suitable’; in particular, he had not dealt with [the] submission that the employer should have sought expert advice about the risks related to the use of the handle with the chamfered end, either at the design stage or in March 2000, when the formal risk assessment was carried out.”

Judge’s finding was “perverse”

Smith LJ said that the proper assessment of the risks of developing a static strain upper-limb disorder from the prolonged use of a TBC were “likely to be beyond the capability of anyone other than an ergonomist”. Given that art. 5a of the 1989 work equipment Directive, which PUWER implemented in the UK, requires that ergonomic principles be taken into account when providing work equipment, she could not see why this did not also apply when deciding upon the need for training. LU was aware of the risks of strain injury arising from the prolonged use of TBCs, and should have taken advice about it from an ergonomist. Smith LJ added that Dr de Mello, the ergonomist called by LU, said at trial that, had LU employed an ergonomist “to look at the specifics of the handle design and operation, it would have received advice which would have led it to change both the handle design and operation. This would have reduced the risk of injury” (emphasis added by Smith LJ).

Judge Cowell, however, had said that he was “reluctant to accept that the use of ergonomists when the TBC was designed would necessarily have resulted in their noticing that the bevel might be used by the end of the thumb”. But Smith LJ said the judge was not “entitled” to reject Dr de Mello’s statement: “While a judge is entitled to reject part of the evidence of an expert witness, even though he accepts most of it, the judge neither applied the correct test nor gave any reasons for rejecting this aspect of the evidence. The judge’s finding on whether an ergonomist would have noticed the problem should be made on the balance of probabilities, but [Judge Cowell] instead said that the ergonomist would not necessarily have noticed that problem.” This finding, said Smith LJ, was “perverse. The judge had accepted Dr de Mello’s evidence in general. Why he should think that she should be wrong in describing what an ergonomist would appreciate when examining this TBC, I cannot understand. There does not appear to be any basis for him to reject her evidence on this point. The evidence before him was that an ergonomist would have noticed the potential problem created by the chamfered end of the handle and would have given advice accordingly.”

Ask an ergonomist

On the evidence before the judge, Smith LJ believed it was clear that LU “had not applied its mind” to whether the design of the handle would give rise to any risk of strain injury. “More importantly,” she added, “in the context of this case, it had allowed its drivers to use the chamfered handle in any way they chose. No specific instruction was given as to the correct way to hold the handle so as to minimise the risk of injury.”

Had professional advice been taken from an ergonomist, Smith LJ believed that LU “would (incidentally) have been given advice about the design of the handle and (crucially for the purposes of this case) have been given advice about its use … Dr de Mello was of the view that the drivers should have been given specific training about how to hold the handle. She said that, had she (or, I take her to mean, a similarly qualified ergonomist) been consulted, she would have described the risk of using the handle as ‘medium’ rather than ‘low’, precisely because the drivers had been given ‘no information or training on the specifics of handle holding and use’.”

Training was not adequate

Smith LJ concluded that LU ought not to have put this new TBC into service without taking advice from a suitably qualified expert, ie an ergonomist: “Had it done so, it would have identified the need for the drivers to be trained in the way in which they held the TBC handle in order to minimise the risk of strain injury. The drivers would have been instructed to grasp the handle with the thumb tucked underneath. Because this advice was not [given], the risk arising from the design of the chamfered end was not recognised as it should have been and the training given to [Allison] was not adequate for the purposes of health and safety, in breach of reg. 9 [of PUWER].” There was “no reason to suppose” that Allison would not have heeded the advice and “the only inference which can properly be drawn is that she would probably not have developed the strain injury which she has suffered.” Allowing the appeal, Smith LJ referred the case to a district judge to assess the level of damages if LU and Allison were unable to reach agreement by themselves.

1. Allison v London Underground Ltd [2008] EWCA Civ 71.

2. Dugmore v Swansea NHS Trust and another [2002] EWCA Civ 1689.

Howard Fidderman is a freelance journalist and editor of HSB.

Box 1: “Dead man’s handle” When the traction brake controller (TBC) – or “dead man’s handle” – is in its “rest” position, the train is stationary. In order to move the train forwards, the driver grasps the TBC handle with the right hand and turns it clockwise, releasing the brakes. The driver then pushes the handle forwards to accelerate. The mechanism is spring-loaded, so the handle returns to its rest position if the pressure is released completely (this is a safety device, should the driver become incapacitated). When driving, the pressure is in two directions, pushing and twisting. An eight-hour shift normally involves between four and five hours “in motion”.

Box 2: “A very small woman” One issue to arise from the Allison judgment is the importance of ensuring that risk assessments look at hazards that may be related to gender. Lady Justice Smith described Allison as a “very small woman, only 5 feet 1 inch in height and of slight build. Her arms are short and her hands small.” This meant that she “found it natural and comfortable to rest her thumb against the chamfered end of the handle [of the traction brake controller] … Most male drivers, whose hands were larger, tucked them underneath the handle.”

Box 3: Risk-assessment ignorance Lady Justice Smith used her judgment to criticise the judiciary more generally for failing to recognise the role of risk assessment: “I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably, judicial decisions have tended to focus on the breach of duty that has led directly to the injury.”