Brown & Ors v Corus (UK) Ltd

Where an employer exposes employees to dangerously excessive vibration, it must take appropriate steps to reduce that exposure. The employer must justify by evidence any contention that reduction was impracticable or too costly; the court must not speculate about cost, industrial resistance or feasibility. For causation, the claimant need not prove the precise reduction that would have followed or isolate the exact contribution of the breach. Under the McGhee principle, it is sufficient that the breach materially increased the risk of disease or of symptoms occurring sooner. The same approach applies to inadequate training where proper instruction would have reduced exposure to some extent. Clear findings concerning warnings and medical surveillance could not be recast as a new appeal issue.

Six former employees of the Llanwern Steelworks brought negligence claims arising from hand-arm vibration syndrome. The County Court dismissed three lead claims, although it found breaches including failures to investigate, warn, monitor, train and consider measures reducing vibration exposure.

The judge held that no further duty to reduce exposure had been established and that the proved breaches had not caused the injuries. Three employees appealed. The central issues were whether the employer owed a duty to reduce dangerously excessive vibration levels, whether failures to reduce exposure and train were causative, and whether warnings and medical surveillance could be reconsidered on a new basis.

The court, in a judgment delivered by Lord Justice Scott Baker for the court, allowed the three appeals and remitted the claims to Cardiff County Court for damages to be assessed.

1. Duty to reduce exposure. Once the judge found that the appellants had been exposed to dangerously high vibration levels, he should have found a duty to take appropriate steps to reduce them. The employer was entitled to choose the method of creating a safe system of work, but the evidential burden of justifying continued excessive exposure rested with the employer. The respondents called no evidence to establish impracticability, cost or industrial resistance. The judge therefore erred by speculating about those matters. The court also relied on the approach in Armstrong and Others v British Coal Corporation 1996 (unreported) CA and Smith v Wright and Beyer [2001] EWCA CIV 1069.
2. Causation. The leading authority was McGhee v National Coal Board [1973] 1 WLR 1, endorsed by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1AC 32. Where the breach materially increased the risk of the relevant disease, the claimant did not have to prove the precise reduction in exposure or identify the exact causal contribution of the breach. The respondents’ failure to reduce exposure materially increased the risk of HAVS, or of symptoms developing earlier. They called no evidence to displace the resulting inference. The reasoning was supported by Transco v Griggs [2003] EWCA CIV 564.
3. Training. Training in the proper use of vibrating tools and working methods should have been provided and should have improved as knowledge developed. The evidence established that appropriate training would have reduced exposure to some extent. The precise reduction did not need to be quantified, because the McGhee principle applied.
4. Warnings and surveillance. The trial judge had made clear factual findings that warnings and medical surveillance would not have altered the appellants’ conduct. Permission to appeal had not been granted on that point, and the proposed argument sought to introduce a new case not explored below. The court declined to reopen it.

• Court of Appeal (Civil Division): On 30 March 2004 allowed the three appeals and remitted the claims to Cardiff County Court for damages to be assessed.
• Cardiff County Court: On 13 February 2003 Judge Hickinbottom dismissed the three claims, finding breaches of duty but no causative link on the issues then determined.