Willock & Ors v Corus UK Ltd

Provision and Use of Work Equipment Regulations 1998, regulation 17(2), extends to risks caused by the position of controls, including musculoskeletal risks from awkward postures, and is not confined to contact with machinery. A claimant need not prove a particular alternative control or remedial method. Workforce opposition does not make an unsafe control position necessary, nor does it break causation where the employer could override the opposition. In common-law negligence, the level of risk and employee resistance are relevant to whether an employer acted reasonably. Where the trial judge has not decided whether control positioning materially contributed to injury, the issue should be remitted.

Three crane drivers appealed from Swansea County Court proceedings concerning back pain and discomfort allegedly caused by postures adopted while operating overhead cranes. The trial judge rejected the claims in negligence and under the Provision and Use of Work Equipment Regulations 1998. He treated the regulatory claim as failing for causation, because the drivers had rejected proposed joystick controls, but did not decide whether regulation 17(2) had been breached.

The appeal concerned whether the regulation covered ergonomic risks arising from the position of controls, whether the drivers’ refusal severed causation or made the existing controls necessary, and whether the primary findings established a breach.

1. Disposition. The appeals were allowed to the extent that the trial judge’s causation conclusion under regulation 17(2) could not stand. The issue was remitted for further determination.
2. The drivers’ rejection of proposed joystick controls did not break the chain of causation. The employer retained power to override the objection or devise another means of avoiding the risk. The refusal was therefore not a novus actus interveniens. The limited exception concerning employee conduct as the sole cause of a breach did not apply: [1959] 1 All ER 414 and [1969] 1 WLR 661.
3. Regulation 17(2) concerns the position of controls, rather than their ergonomic design. Its scope is not limited to risks of contact with dangerous machinery. It also covers other health and safety risks, including backache caused by an awkward posture resulting from control positioning.
4. The claimants were not required to prove a particular positive method of avoiding the breach. The regulation prohibits controls whose position creates the relevant risk, whatever type of alternative control might be used. The statutory exception for what is necessary could not be established merely by workforce opposition where the employer had other available choices.
5. The common-law negligence finding was upheld. Whether an employer should insist on an unpopular safety change depends on reasonableness. The level of risk and considered employee resistance may be relevant. The trial judge was entitled to conclude that, given the limited injury risk, it was reasonable to inform and advise the workforce rather than impose the proposed changes: [2003] EWCA Civ 1856.
6. The delayed risk assessment did not itself establish liability because an earlier assessment would not have led to different risk-reducing action. The primary findings did not clearly establish whether the location of the controls contributed, beyond a de minimis level, to the risk and occurrence of backache. That question was remitted. If established, breach of regulation 17(2) and judgment for the claimants on that basis would follow.

1. Court of Appeal (Civil Division): allowed the appeals to the extent of the causation error under regulation 17(2), and remitted the unresolved breach issue to the trial judge.
2. Swansea County Court: His Honour Judge Vosper QC rejected liability in negligence and treated the regulatory claims as failing for causation, without deciding whether regulation 17(2) had been breached.