Naylor v Volex Wiring Group Plc

Permission to appeal should be granted where an important point of statutory construction has not previously been considered by the appellate court and the proposed argument is properly arguable, even if its prospects cannot be assessed at the permission stage. Permission may also be granted on factual grounds where the issues depend on the trial judge’s assessment of oral evidence, particularly where they can be dealt with efficiently alongside the principal legal issue. The application to rely on further evidence should ordinarily be left for consideration by the full appellate court.

The claimant obtained judgment for more than £42,000 against her former employer after alleging that occupational exposure to colophony during soldering caused asthma. The defendant sought permission to appeal, raising the construction of regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1994, together with disputes about the extent of exposure and the onset of wheezing. The defendant also sought a stay and permission to rely on further wage-slip evidence. The central legal issue was whether foreseeability of risk could affect what was reasonably practicable under regulation 7(1).

1. Permission granted. The defendant’s application for permission to appeal was allowed, with a time estimate of one day.
2. Regulation 7(1) requires an employer to ensure that exposure to substances hazardous to health is prevented or, where that is not reasonably practicable, adequately controlled. The proposed argument was that, where the risk from a particular level of exposure was very small or non-existent, preventing that exposure might not be reasonably practicable. The point was not straightforward because the regulations had received differing judicial interpretations and this particular provision had not been considered in a reported case or by the Court of Appeal.
3. The court did not determine the merits of the foreseeability argument at the permission stage. Evidence concerning the employer’s knowledge and the foreseeability of hazard was noted, but assessment of that evidence was left to the full court.
4. Permission was also granted on the factual issues. The extent of the claimant’s exposure during the summer and the date on which wheezing began depended substantially on the trial judge’s assessment of oral evidence against documentary material. Those issues could be considered without materially extending the appeal.
5. The application to adduce further wage slips was left for determination by the full court, including consideration of the Ladd v Marshall principle. A stay of execution was understood to be agreed if permission was granted.

• Court of Appeal (Civil Division): Permission to appeal from the Preston County Court was granted on the legal and factual grounds identified by the defendant. The application to rely on further evidence was reserved for the full court.
• Preston County Court: His Honour Judge Appleton gave judgment for the claimant on 1 November 2001 for more than £42,000 and costs.