Dugmore v Swansea NHS Trust

An employer’s duty under regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1988 and the corresponding 1994 provision is absolute. The employer must ensure that exposure is prevented or, where prevention is not reasonably practicable, adequately controlled.

Reasonable foreseeability does not qualify that duty. The reasonable-practicability defence applies only to prevention, and the employer bears the burden of establishing it. Adequacy of control depends solely on the nature of the substance and the nature and degree of exposure.

An employer cannot satisfy the duty by requiring frequent use of hazardous powdered latex gloves where a simple alternative barrier is available. Liability nevertheless requires the statutory breach to have caused the employee’s injury.

A nurse developed a Type I allergy to latex protein after using powdered latex gloves while employed at Singleton Hospital. She later moved to Morriston Hospital, where she was given vinyl gloves but suffered an anaphylactic attack after touching an empty latex-glove box.

The Cardiff County Court dismissed her claims in negligence and under the Control of Substances Hazardous to Health Regulations 1988 and the corresponding 1994 Regulations. She appealed.

The Court of Appeal considered when a reasonably prudent healthcare employer should have known that latex gloves could cause sensitisation, whether regulation 7 imposed an absolute duty independent of foreseeability, and whether any breach by Morriston caused the later attack.

1. Disposition. The appeal against Singleton was allowed and judgment entered for the claimant for breach of regulation 7(1). The appeal against Morriston was dismissed. Lady Justice Hale gave the judgment of the court.

2. At common law, a reasonable and prudent employer must take positive thought for employees’ safety, keep reasonably abreast of developing knowledge, and act on any greater-than-average knowledge it possesses. A healthcare employer may be expected to know more about occupational health risks than an ordinary employer and need not await official guidance. Nevertheless, the evidence did not establish that Singleton ought to have known before the claimant became sensitised in 1993 or 1994 that latex gloves presented that risk.

3. Regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1988 and the corresponding 1994 provision imposed an absolute duty to ensure that exposure to a hazardous substance was prevented or adequately controlled. Foreseeability was not an element of that duty. The words concerning reasonable practicability qualified only total prevention and did not permit the court to rewrite the duty as one governed throughout by reasonable foreseeability.

4. Total elimination of latex from a hospital was not reasonably practicable. Before sensitisation, however, the relevant hazardous substance was contained in powdered latex gloves. Replacing those gloves with vinyl gloves was a simple, available precaution. Singleton bore the burden of proving that replacement was not reasonably practicable and failed to discharge it.

5. Adequate control was defined exclusively by the nature of the substance and the nature and degree of exposure. It was a practical standard unqualified by reasonableness or foreseeability. Requiring an employee frequently to wear powdered latex gloves could not constitute adequate control when alternative barriers were available.

6. Morriston’s common-law liability failed on causation because the trial judge found that further warning would not have caused the claimant to leave the intensive therapy unit. Although the statutory duty might require stricter protection despite an employee’s willingness to accept a risk, an anaphylactic attack could have occurred in any available working environment. Any regulatory breach by Morriston was therefore not shown to have caused the attack.

1. Court of Appeal: In Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689, the appeal against Singleton was allowed and judgment was entered for breach of regulation 7(1). The appeal against Morriston was dismissed.
2. Cardiff County Court: His Honour Judge Masterman dismissed the claimant’s claims in negligence and under the Control of Substances Hazardous to Health Regulations 1988 and the corresponding 1994 Regulations.