Coxall v Goodyear Great Britain Ltd

An employer is not generally required to remove or dismiss an employee who knowingly chooses to continue work that is ordinarily safe but carries a personal risk. The principle in Withers v Perry Chain Co Ltd remains applicable, but it is not absolute. The decisive consideration is the nature and extent of the known risk. A duty to remove an employee may arise where the employer’s own responsible personnel recognise that the employee should cease work to avoid physical danger, particularly after unequivocal medical advice.

The claimant developed occupational asthma after starting work spraying lubricant paint at the defendant’s tyre factory. The trial judge found that the work and protective precautions were ordinarily safe, but that the claimant had an unknown personal susceptibility. A company doctor advised that he should not work with the new paint. The advice was not acted upon, and the claimant remained exposed for about three weeks, worsening his condition.

The Walsall County Court awarded damages for the exacerbation. The employer appealed, arguing that earlier Court of Appeal authorities established that an employer had no duty to remove an adult employee from safe work which the employee wished to undertake. The central issue was whether that principle bound the trial judge on these facts.

1. Appeal dismissed. The employer was negligent in failing to act on the works doctor’s advice and failing either to move the claimant or, ultimately, dismiss him from the work.
2. The principle in Withers v Perry Chain Co Ltd ([1961] 1 WLR 1314) remained effective. It protected an employee’s freedom to decide whether to undertake work that was ordinarily safe despite a personal susceptibility. It did not operate irrespective of the risk. The actual nature and extent of the known risk were central.
3. The earlier authorities concerned comparatively slight risks, including dermatitis, tennis elbow and work undertaken without medical advice to stop. They did not involve circumstances in which the employer’s responsible personnel had recognised that the employee should no longer continue in the work. The trial judge was therefore entitled to distinguish them.
4. The company doctor’s advice was unequivocal. The line manager and health and safety manager accepted that, had they known of it, they would have removed the claimant. Their evidence did not itself define the legal duty, but supported the conclusion that the employer had failed to take the protective step its own personnel considered necessary.
5. Contributory negligence was not pursued. The claimant’s decision to remain at work despite knowing the risk and the doctor’s advice might have reduced the employer’s liability if that issue had been raised.
6. Brooke LJ agreed in the result but emphasised that the decision established no new principle. On the limited basis common to the appeal, the employer should at least have discussed the available options with the claimant after the medical advice. If he had then insisted on continuing, the case might have been different.

The appellant was ordered to pay the respondent’s costs of the appeal, subject to detailed assessment if not agreed.

1. Court of Appeal: The appeal from the Walsall County Court was dismissed. The appellant was ordered to pay the respondent’s appeal costs.
2. Walsall County Court: HHJ Rundell awarded the claimant £7,500 plus interest and costs on 9 November 2001, holding that the employer should have removed him from the paint and line work after the company doctor’s advice.