Arriva Trains Northern Ltd v Eaglen

An employer’s duty under the Provision and Use of Work Equipment Regulations 1998 depends on whether work equipment is suitable in any respect which it is reasonably foreseeable will affect health or safety. Foreseeability must be assessed by the relevant evidence, particularly ergonomic evidence; medical evidence about causation cannot by itself establish that a risk was foreseeable. A court must keep separate the questions whether the claimant suffered additional symptoms, whether the equipment caused them, and whether injury was reasonably foreseeable. A failure to implement a suggested adjustment will breach the common-law duty of care only where the circumstances show that reasonable care required that step. An appellate court may determine causation on the evidence where the first-instance reasoning gives no adequate basis for preferring one expert opinion over another and neither party seeks a retrial.

A train driver claimed that seating in Class 158 train cabs aggravated sciatica arising from a degenerative lower-back condition. He relied on statutory duties under the Provision and Use of Work Equipment Regulations 1998 and on the common-law duty to provide a safe system of work.

HH Judge Belcher, sitting in the Leeds County Court, found liability and causation, entering judgment for the claimant with damages to be assessed. The defendant appealed, challenging both findings of breach and the adequacy of the reasoning on causation. The central issues were whether the sloping seats presented a reasonably foreseeable risk to health, whether the defendant was required to provide shorter routes after an occupational physician’s recommendation, and whether the claimant proved an additional aggravation caused by the seating.

1. Appeal allowed. The judgment for the claimant was set aside and judgment was entered for the defendant.
2. The statutory claim failed. Regulation 4 required equipment to be suitable in any respect which it was reasonably foreseeable would affect health or safety. The judge had wrongly moved from medical evidence about whether posture could aggravate an existing condition to a conclusion that injury from the sloping seats was foreseeable. The medical experts’ concession that each other’s view lay within the range of reasonable opinion did not establish a link between posture and pathological symptoms. The ergonomic experts agreed that the seats created foreseeable discomfort, but not a foreseeable risk of injury. The absence of complaints also materially undermined the inference of foreseeability.
3. The judge’s separate finding of breach of the common-law duty was also unsustainable. The defendant had responded promptly to the complaint, arranged an occupational-health assessment, and followed the physician’s principal plan. The recommendation that shorter routes would be helpful, made while the claimant was certified fit for normal work, did not make it a breach of duty to take at most six weeks to address that suggestion.
4. On causation, the judge had failed to distinguish between symptoms additional to those attributable to the degenerative condition and symptoms caused by the seating. The Court of Appeal was entitled to decide the issue itself because neither party sought a new trial. On the evidence, the claimant had not proved any additional pain caused by the seating. His later report of discomfort on all seats made it more probable that the degenerative condition, rather than the seating, caused the loss of work.
5. Longmore LJ’s alternative view was that, if a real aggravation had been proved, the defective seating could have caused it and the risk might have been foreseeable. Rix LJ and Wilson LJ agreed with the result and with the principal reasoning that the claim failed.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 352: allowed Arriva Trains Northern Ltd’s appeal from the Leeds County Court, set aside the judgment for the claimant, and entered judgment for the defendant.
• Leeds County Court — HH Judge Belcher: found statutory and common-law breach and causation, entering judgment for the claimant with damages to be assessed.