Armstrong & Ors v British Coal Corporation

An employer’s common-law duty is to take reasonable care for employees’ safety. It does not require work to be risk-free where the potential injury is initially minor and effective, practical precautions can manage the risk.

For vibration-induced white finger, a failure to reduce exposure was not established merely because exposure exceeded de minimis. The question was whether exposure exceeded the level a prudent employer should have permitted. Warnings, medical surveillance and job rotation were complementary precautions. A practical warning should require workers to report finger whitening or discolouration promptly.

General damages must reflect the actual disability in both hands. Judicial Studies Board guidelines are useful but non-binding and, for serious vibration white finger, were too low.

The defendant appealed from the judgment of Judge Stephenson, sitting in the Queen’s Bench Division, which held it liable to seven lead claimants who had developed vibration-induced white finger through work with vibrating tools. The lead cases represented a much larger group of claims.

Earlier preliminary findings had established that the defendant should have recognised the foreseeable risk by 1973, introduced warnings and medical surveillance by 1975, and introduced job rotation by 1976. The appeal concerned the exposure level requiring rotation, the content of an adequate warning, and several awards of damages.

The central issue was whether any post-1973 exposure beyond de minimis was negligent, or whether liability required proof of exposure exceeding a reasonably permissible level.

1. The appeals were allowed only in part. Judge LJ gave the leading judgment, with Simon Brown and Buxton LJJ agreeing. The liability appeals were dismissed. The appeals against the awards for Cudlip and Stokoe succeeded because their awards for disadvantage on the open labour market were speculative. The other appeals were dismissed.

2. The judge below erred in treating every exposure above de minimis as negligent. An employer’s duty is one of reasonable care, not an absolute obligation to eliminate every risk. The duty required proof that exposure exceeded the level which a prudent employer should have allowed, having regard to the seriousness of the risk and the practicability and effectiveness of precautions.

3. DD43 was not a reliable standard. In this litigation, however, the 1994 Health and Safety Executive booklet supplied a standard that a prudent employer could reasonably have applied. From January 1976, job rotation should have been used, with warnings and medical surveillance, where exposure exceeded the action level of A(8) 2.8 m/s². A lifetime average below that figure was not a complete answer where a significant period of higher exposure was connected with the onset of symptoms.

4. An adequate warning had to be practical for workers in the coal industry. It should have told a worker using vibrating tools to report whitening or discolouration of the fingers promptly. A general instruction to report tingling or numbness would not have been a useful or realistic warning. Stokoe’s claim nevertheless succeeded because he would have acted on an adequate warning when his symptoms began.

5. In assessing general damages, the Taylor-Pelmear and Stockholm classifications were useful starting points, but the decisive consideration was the overall effect of the condition on the individual and on each hand. The Judicial Studies Board guidelines were informative but non-binding and understated serious permanent disability from vibration white finger. The court upheld the challenged general-damages awards.

6. An award for labour-market disadvantage required a real, non-speculative future handicap attributable to the injury. Cudlip’s continuing employment and more serious back condition, and Stokoe’s unwillingness to work and other disabilities, meant that their awards under that head could not stand. The issue of a deduction for concurrent post-1975 fault-free exposure was left open.

• Court of Appeal (Civil Division) — In [1998] EWCA Civ 1359, the court dismissed the liability appeals and otherwise allowed the appeals only as to the labour-market awards for Cudlip and Stokoe.
• Queen’s Bench Division (High Court) — Judge Stephenson, sitting as a deputy High Court judge, held the defendant liable to seven lead claimants on 30 September 1997 and assessed their damages.