Brookes v South Yorkshire Passenger Transport Executive & Anor

In negligence claims for occupational vibration injury, the reasonable employer must keep reasonably abreast of developing knowledge and act with reasonable expedition once a potential risk is known. Constructive knowledge is evidence-sensitive. A publication does not automatically establish knowledge; the court must assess its status, dissemination, the employer’s resources and the circumstances connecting it to the employer. Once the risk is appreciated, the employer must investigate exposure and implement effective precautions within a reasonable period. Damages may be reduced for non-negligent exposure only where the evidence permits a sensible assessment of the deterioration attributable to each period. If such assessment is unavailable, and negligence materially contributed to the condition, full damages may be awarded.

Mr Alan Brookes, a fitter employed by the defendants from 1982, developed vibration white finger, now commonly called hand-arm vibration syndrome, after regularly using vibrating tools. The Recorder held that the defendants should have known of the risk from 1975, investigated the exposure and taken remedial measures. He awarded £4,780 in damages.

The defendants appealed, arguing that liability arose only in the mid-1990s and that damages should be reduced for pre-liability exposure. The Court of Appeal considered the evidential significance of DD43, BS 6842:1987, the time reasonably required for investigation and remediation, and whether the evidence supported apportionment of damages.

The appeal was allowed in part on liability, but the damages award remained unchanged.

1. The applicable standard was that of the reasonable and prudent employer. The employer must take positive thought for workers’ safety in light of what is known or ought to be known, keep reasonably abreast of developing knowledge, and balance the risk against the effectiveness, expense and inconvenience of precautions, following Stokes v GKN (Bolts and Nuts) Ltd [1968] 1 WLR 1776 and Thompson v British Shiprepairers [1984] QB 405.
2. The Recorder’s finding that the defendants should have known of DD43 in 1975 could not stand. His reasons did not explain the weight given to the evidence, the adequacy of the safety officers’ work, the absence of evidence connecting the defendants with the relevant organisations, or the extent to which DD43 had been disseminated. The Court of Appeal found the evidence insufficient to establish constructive knowledge in 1975 or shortly afterwards.
3. BS 6842:1987 was materially more significant. It promulgated a British Standard against the background that vibration white finger had become a prescribed industrial disease. Given the defendants’ size and resources, they should have known of it at or shortly after publication. Two years was a reasonable period to measure exposure and implement remedial measures. The defendants were therefore negligent from 1989.
4. The 1989 date was not a general rule for the transport industry. The date of constructive knowledge and the period required for investigation and remediation depend on the evidence and permissible inferences in the particular case.
5. On damages, exposure to vibration is dose-related and susceptibility varies. General damages compensate the effect of physical damage. A reduction for non-negligent exposure is permissible only where the evidence enables a sensible, even broad-brush, assessment of the effects attributable to the different periods, as considered in Allen v British Rail Engineering Ltd [2001] ICR 942. Here, the claimant’s symptoms arose only in 1999, and there was no evidential basis for reduction. He could properly contend that, without the negligence, he would never have developed symptoms.
6. The defendants remained liable for £4,780, with the interest directions stated by the Recorder and judgment-rate interest from September 2004 until payment.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 452, allowed the appeal in part, substituted a finding of negligence from 1989, rejected any reduction in damages, and left the £4,780 award unchanged.
• Sheffield County Court: Mr Recorder Elliott held on 28 September 2004 that the defendants were liable throughout the claimant’s employment, and awarded £4,780 in damages together with interest.