Vance-Daniel v Corus UK Ltd

In assessing whether an employer breached its duty of care in relation to vibration exposure, the question is what a reasonable employer in the relevant position would have deduced from the available guidance and the employee’s actual exposure.

Where guidance refers to exposure occurring on a daily basis, exposure above the stated action level occurring no more than once a week need not constitute regular daily exposure. The court should not prescribe a universal meaning of “regular”; the issue is context-specific.

The claimant appealed against the dismissal of his personal injury claim against his former employer. The first-instance judge found that he suffered from Hand-Arm Vibration Syndrome caused by workplace vibration tools and assessed damages at £11,000, but found no breach of duty.

The appeal concerned whether the employer should reasonably have foreseen a risk of injury from the claimant’s exposure, particularly in light of BS6842 (1987). The claimant used an angle grinder for approximately four hours on no more than one day each week, with additional exposure from an impact wrench. The central issue was whether that constituted regular exposure on a daily basis.

1. Appeal dismissed. The judge’s conclusion that the respondent was not in breach of its duty of care was upheld.
2. The relevant question was what a reasonable employer in the respondent’s position would have deduced from the British Standard Guide BS6842 (1987), considered against the claimant’s actual employment and exposure. The court was not required to determine an abstract or universally applicable meaning of “regular”.
3. BS6842 repeatedly referred to “daily” exposure. Its guidance and tables were based on exposures regularly repeated on a daily basis. Although the claimant’s exposure exceeded the stated action level when he used the angle grinder, that exposure occurred on no more than one day each week. A reasonable employer would not deduce from the guidance that this amounted to regular exposure on a daily basis.
4. The first-instance judge had therefore reached the correct conclusion on the British Standard alone. The judge’s additional cross-check by reference to the 2005 regulations was not necessary to the decision, and the Court of Appeal did not consider it.
5. There was no challenge to the factual findings, including the absence of comparable complaints from other employees. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): The appeal from the Swansea Civil Justice Centre was dismissed. The court upheld the decision of His Honour Judge Vosper QC, handed down on 26 May 2009, dismissing the claim.