Case - Brown v Corus

[2004] EWCA Civ 374, Court of Appeal - Ian Scott

The claimants (C) appealed against the dismissal of their personal injury claims. C worked for many years at the steelworks of the defendant (D) using a variety of handheld pneumatic mechanical tools such as jackhammers and drills. C suffered from vibration white finger (VWF). C claimed damages for personal injury alleging negligence and breach of duty by D. C's exposure to vibration greatly exceeded the recommended maximum. D admitted that by January 1, 1976 it should have been aware of the risk of injury from the use of vibrating tools. The judge held that C's claim failed for two reasons: first, D owed no duty to reduce the levels of vibration to which C were exposed either by using alternative machines or changing the work systems. D had a duty to consider and investigate those matters but had it done so, in the absence of a single case of symptomatic VWF at that time, the results of such an investigation would not have been reasonable to require D to take steps to reduce the vibration levels. Secondly, D's failure to comply with such precautions as they were under a duty to undertake, such as proper use of the tools, training and medical surveillance, was not causative because if such precautions had been taken the injuries would have been no different.

HELD: (1) There was no evidence of impracticability or intrinsic difficulty in the steps which the judge found D ought to have taken. There was clear evidence on which the judge should have found a duty to decrease vibration levels to which C were exposed. Once the judge concluded that C had been subjected to excessive levels of vibration the burden shifted to D to justify why that situation was allowed to continue. It was not open to the judge to speculate on matters such as cost and resistance to change in working practices. Those were matters which required evidence. There were many different ways in which the employer could create a safe system of work. The choice of how it was to be achieved lay with the employer. D was in plain breach of duty and should have taken appropriate steps to reduce vibration levels. Armstrong & ors v British Coal Corp and Desmond Peter Smith v Wright & Beyer Ltd (A firm) (2001) EWCA Civ 1069 applied. (2) C did not have to show to what extent the reduction in vibration levels would have made a difference. By failing to reduce the level of vibration D exposed C to an increased risk of suffering from the condition from which in the event they suffered. Once the position was reached that D was in breach of duty in failing to reduce the vibration levels to which C were exposed causation was established (applying McGhee v National Coal Board (1973) 1 WLR 1). The same reasoning and result applied to D's failure to comply with its obligation to provide proper training in the use of the tools.

Appeals allowed.

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