Naylor v Volex Group Plc

Under the Control of Substances Hazardous to Health Regulations 1994, risk assessments must be reviewed when information makes an earlier assessment unreliable. Regulation 7(1) imposes a mandatory duty to prevent exposure where reasonably practicable, or otherwise to ensure adequate control. Adequacy is an objective practical question depending on the substance and the nature and degree of exposure. An employer cannot rely on ignorance, lack of foresight, the absence of an official exposure standard or minimal exposure where those matters do not satisfy the statutory duty. An employer that has failed to reassess cannot rely on ignorance resulting from that failure. An appellate court should not remit factual findings that were open to a trial judge who heard the witnesses.

The claimant developed industrial asthma after alleged exposure to colophony fumes while soldering wiring harnesses for vehicles. Preston County Court, before His Honour Judge Appleton, found breaches of regulations 6 and 7 of the Control of Substances Hazardous to Health Regulations 1994 and awarded damages.

The employer appealed on liability, arguing that no further risk assessment was required, that exposure was minimal, and that liability depended on knowledge or reasonable foreseeability of the risk. It also challenged factual findings about the claimant’s periods of soldering and the medical evidence, and sought to rely on additional wage slips. The central issues were whether the statutory duties had been breached and whether the factual and evidential grounds justified appellate intervention.

1. Disposition. Lord Justice Buxton gave the leading judgment. Lord Justice Carnwath agreed, and Lord Justice Simon Brown agreed while adding further reasons on the principal ground. The appeal was dismissed unanimously, with costs subject to detailed assessment if not agreed.
2. Risk assessment. Under regulation 6(2)(a) of the Control of Substances Hazardous to Health Regulations 1994, an employer must review an existing assessment forthwith where there is reason to suspect that it is no longer valid. Information showing that the previous exposure measurements or occupational standard were unreliable or under review was sufficient to trigger that duty. The RPS report independently required the same conclusion, so there was no basis for remission.
3. Exposure control. Regulation 7(1) imposed a mandatory duty to prevent exposure where prevention was reasonably practicable, and otherwise to ensure adequate control. The court applied the protective and preventive approach in Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689. Adequacy was a practical question depending on the substance and the nature and degree of exposure. Lack of knowledge or foresight was distinct from reasonable practicability and was not a relevant answer under the regulations. Local exhaust ventilation would have prevented the exposure, so the breach was established.
4. Factual and medical grounds. The trial judge was entitled to accept the claimant’s and Mrs Hatton’s evidence after hearing them and assessing their credibility. Further wage slips would not materially improve the position, and the existing evidence had not been used to recall the witnesses or seek an adjournment. The court therefore refused the application under Ladd v Marshall [1954] 1 WLR 1489. Medical notes required interpretation; the judge was entitled to accept the comprehensive interpretation given by Dr Rudd and there was no basis to go behind the medical findings.

1. Court of Appeal (Civil Division) — appeal dismissed unanimously: [2003] EWCA Civ 222.
2. Preston County Court — His Honour Judge Appleton found breaches of regulations 6 and 7 of the Control of Substances Hazardous to Health Regulations 1994 and awarded damages.