Allison v London Underground Ltd

Under Provision and Use of Work Equipment Regulations 1998, the duty to ensure adequate health-and-safety training is mandatory but is not an absolute, outcome-based guarantee against injury. Adequacy is assessed by reference to the training required in light of risks which the employer ought to have known were inherent in its operations.

The statutory duty is stricter than the common-law duty confined to known or reasonably foreseeable risks. An employer must investigate its operations and obtain professional advice where necessary. A suitable and sufficient risk assessment should identify the risks for which training and other protective measures are required.

The appellant was a train driver employed by the respondent. She developed a strain injury after operating a traction brake controller for prolonged periods with her thumb resting on the controller's chamfered end.

At trial, His Honour Judge Cowell in the Central London County Court held that the respondent's training was adequate in all the circumstances. He treated the absence of reasonable foresight of this particular injury as material. The claim therefore failed on primary liability.

The appeal concerned the construction and application of Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998: whether it imposed no-fault liability and, if not, how the adequacy of training for health-and-safety purposes should be assessed.

1. Appeal allowed. The court held that Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998 did not impose absolute or no-fault liability. The mandatory word ensure required the employer to provide training and did not permit an excuse based on cost, time or practicability. It did not, however, make training inadequate whenever different training might retrospectively have prevented injury.
2. Per Smith LJ, with whom Hooper LJ and Sir Anthony Clarke MR agreed, training is adequate if it meets what the employer ought to have known about risks inherent in its operations. The statutory duty is stricter than the common-law duty limited to risks actually known or reasonably foreseeable. It requires investigation of the risks and professional advice where necessary. The court treated Dugmore v Swansea NHS Trust and another [2002] EWCA Civ 1689 as consistent with that approach, and distinguished Stark v Post Office [2000] ICR 1013, which concerned a differently worded equipment-maintenance duty.
3. What the employer ought to know is closely linked to the suitable and sufficient risk assessment required by Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. A risk assessment should identify the risks requiring training and operate as a blueprint for protective action. Although the adequacy of the actual assessment was not an appeal ground, the court could decide directly what the respondent ought to have known from the evidence.
4. The respondent knew that prolonged use of the controller could cause strain injury. It introduced the chamfered handle without ergonomic advice and left drivers free to choose how to hold it. It ought to have obtained advice from an ergonomist. That advice would have identified the risk of holding the thumb on the chamfered end and the need to instruct drivers to keep the thumb underneath the handle.
5. The appellant's training was therefore inadequate in breach of Regulation 9(1). On the balance of probabilities, proper training would have avoided her injury. The claim was to be listed before a district judge for directions on quantum unless agreed.

• Court of Appeal (Civil Division) — allowed the appeal and held that the respondent had breached Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998: [2008] EWCA Civ 71.
• Central London County Court — on 25 January 2007, His Honour Judge Cowell dismissed the claim on primary liability, holding that the training was adequate in all the circumstances. No citation for that decision was stated.