Griffiths v Vauxhall Motors Ltd

Under regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998, suitability and maintenance concern the physical condition of equipment, assuming proper operation by trained and instructed personnel. Equipment is not unsuitable merely because injury results from inadequate control or mishandling where it is otherwise safe for intended use. Manufacturer-set parameters are relevant but not conclusive. A risk-assessment duty may inform the common-law standard of care, although breach of that duty creates no independent civil action under the Management of Health and Safety at Work Regulations 1992. Causation may be established where proper assessment would probably have led to warnings or instructions preventing injury. Contributory negligence remains fact-sensitive.

The claimant, an experienced production operator, injured his left hand at Vauxhall’s factory while using a two-handed electrically powered torque gun. He alleged breach of regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 and negligence arising from the failure to assess the risk of kickback. The Recorder found no breach of regulations 4 or 5, but held that the failure to carry out a risk assessment caused the accident. Agreed damages of £4,000 were reduced by 50 per cent for contributory negligence. The employer appealed on liability and the claimant cross-appealed on apportionment.

Disposition. The appeal and cross-appeal were dismissed. Lord Justice Clarke gave the principal judgment. Lord Justice Judge agreed and added that work equipment is not unsuitable merely because injury results from inadequate control or mishandling of equipment otherwise safe for use. Lord Justice Aldous agreed with both judgments.

1. Equipment suitability and maintenance. Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 concern the physical condition and suitability of equipment, on the assumption that it will be properly operated by trained and instructed personnel. The manufacturer’s operating parameters are relevant to suitability but are not the sole consideration. Regulation 4(4) could not be applied so broadly that every operational risk became a defect in the equipment. Regulations 8 and 9 address information, instructions and training. On the Recorder’s findings, no intermittent mechanical defect or other fault had been proved, and the gun was suitable when properly operated. There was therefore no breach of regulations 4 or 5.
2. Risk assessment and causation. Regulation 3 of the Management of Health and Safety at Work Regulations 1992 did not create a civil cause of action because of regulation 15, but it helped identify the standard expected of a reasonable employer. A proper assessment should have been carried out before the accident, particularly given the previous kickbacks. The Recorder was entitled to find that a competent employer would probably have identified the risk and warned or instructed operators to control the gun firmly, and that the accident would probably then have been avoided. The pleading objection failed because the employer was not taken by surprise.
3. Contributory negligence. The degree of care required varies with the circumstances, including the actual conditions in which work is performed, as illustrated by Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152. The Recorder was entitled to find that the experienced claimant knew of the risk and failed to hold the gun firmly enough. The 50 per cent apportionment was not disturbed.
4. Order. Appeal dismissed with costs. Cross-appeal dismissed with no order as to costs. Detailed assessment ordered.

• Court of Appeal (Civil Division): The appeal against liability and the cross-appeal against the contributory-negligence apportionment were dismissed under [2003] EWCA Civ 412.
• Tameside County Court sitting at Manchester: Mr Recorder Hand QC found the employer liable for negligent failure to carry out a risk assessment, rejected the alleged breach of regulations 4 and 5, and reduced agreed damages by 50 per cent for contributory negligence.