Bowe v Mersey Rewinds Engineering Ltd & Ors

Exposure to vibration above a threshold does not, by itself, establish breach of an employer’s duty of care. The claimant must establish regular or frequent exposure at or above the relevant threshold, together with a failure to take reasonable precautions such as warning, advice or monitoring. A finding of occasional or transitory exposure over many years is insufficient without findings about the frequency of use and, where necessary, expert evidence about the effect of intermittent exposure. A trial judge may make findings which reflect neither party’s case where the evidence justifies them, but must not infer breach from unsupported assumptions about exposure.

The claimant sought damages for vibration white finger and carpal tunnel syndrome allegedly caused by workplace use of vibrating tools while employed by three defendants. The trial was split between limitation and breach of duty. The recorder dismissed the limitation defence and found each defendant in breach because the claimant had been exposed from time to time to vibration above the threshold and had received no warning, advice or monitoring.

The defendants appealed the breach finding. The central issue was whether the recorder was entitled to treat transitory or occasional exposure above the threshold as sufficient to establish breach without findings about the frequency of exposure.

Appeal allowed. The Court of Appeal, in the judgment of Lady Justice Thirlwall, with Lord Justice Moylan and Lady Justice Asplin agreeing, held that the recorder’s conclusion on breach could not stand.

1. The claimant was not confined to proving the precise factual case advanced in his pleadings. A judge may make findings which reflect neither party’s case where the evidence supports them. The recorder was therefore entitled to reject the claimant’s exaggerated account while considering evidence from the defendants’ witnesses about some use of vibrating tools.
2. That did not resolve the legal issue. Exposure above the threshold, described as transitory or occasional, does not automatically establish breach of duty. The relevant risk depends on regular or, more accurately, frequent exposure. In the circumstances, a breach required a finding that the claimant used the needle gun or air chisel at or above the threshold on a regular or frequent basis, coupled with the admitted absence of warning, advice, monitoring or other appropriate precautions.
3. The table showing that a needle gun could reach the threshold after a short period of use was based on daily exposure assessment. It did not establish that one period of exposure could be treated as equivalent to repeated daily exposure. The recorder made no finding about the frequency of needle-gun use or air-chisel use. Nor was there expert evidence about the effect of intermittent use at the suggested frequency.
4. Although the agreed framework referred to later obligations under the Control of Vibration at Work Regulations 2005, the appeal concerned the common-law breach finding. The recorder had not established the factual frequency necessary to move from occasional exposure over many years to breach of duty. The appeal was accordingly allowed.

1. Court of Appeal (Civil Division). In [2018] EWCA Civ 72, the defendants’ appeal against the finding of breach of duty was allowed.
2. Liverpool Civil and Family Court. On 18 February 2015, the recorder dismissed the limitation defence and found each defendant in breach of duty. The limitation ruling was not appealed.