Bowe v Mersey Rewinds Engineering Ltd & Ors

The claimant sued his successive employers for personal injury arising from hand-arm vibration, alleging vibration white finger and carpal tunnel syndrome. The recorder found the defendants had breached their duty by failing to warn, advise or monitor the claimant despite transitory exposures above the agreed threshold level. On appeal the Court of Appeal held that a finding of occasional or transitory exposure above the threshold, without findings as to frequency/regularity and without expert evidence linking intermittent exposure to a foreseeable risk, cannot sustain a finding of breach. The court applied the agreed expert framework for assessment of A8 daily exposure and emphasised the distinction between isolated/transitory exposure and regular or frequent exposure which gives rise to a duty to warn or to take further action (as reflected in the Control of Vibration at Work Regulations 2005 and guidance such as BS 6842:1987 and HSE HS(G)88).

Background and parties

The claimant alleged that repeated use of vibrating tools while employed by the three defendants over different periods caused vibration white finger and carpal tunnel syndrome. The defendants admitted a duty of care but denied frequent or prolonged exposure and disputed causation; the first and third defendants also pleaded limitation.

Procedural history

• The trial before a recorder was directed on two issues: limitation (date of knowledge) and breach of duty. The recorder gave an ex tempore judgment on 18 February 2015, dismissing the limitation defences (no appeal against that). The recorder also found breach on the basis that the claimant had been "transitorily" exposed to vibration above the threshold and that no warnings, monitoring or advice had been given.
• The defendants appealed to the Court of Appeal against the recorder's finding of breach. The appeal was heard on 11 July 2017 and decided on 31 January 2018.

Issues before the Court of Appeal

• Whether the recorder was entitled to conclude that occasional or transitory exposures above the threshold level, in the absence of evidence as to frequency or regularity and without further expert analysis, constituted a breach of duty by the employers.
• Whether the recorder impermissibly substituted his own expert assessment for that of the parties' experts.

Reasoning

The Court of Appeal accepted the agreed expert framework (BS 6842:1987 and the experts' table for A8 estimates) and the agreed legal proposition that employers owe no common law duty in relation to exposure below the threshold A8 level but do owe duties to warn/monitor above it, and further duties above the action level. However, the court held that the recorder had only made findings of transitory or occasional exposure over many years and had not found that exposure was regular or frequent. In those circumstances, and absent expert evidence showing the effect of intermittent exposures at the frequencies suggested, it was not open to the recorder to infer breach from the limited findings he had made. The appeal was allowed for that reason.

Appeal allowed. The Court of Appeal held that the recorder erred in concluding breach from findings of merely transitory or occasional exposure above the threshold without findings as to frequency/regularity and without expert evidence linking such intermittent exposure to a foreseeable risk; a finding of regular or frequent exposure was necessary to support a duty to warn, advise or monitor.

On appeal from the Liverpool Civil and Family Court (recorder), case no. 3YK54788; recorder delivered ex tempore judgment 18 February 2015 rejecting the limitation defence and finding breach; appeal to the Court of Appeal determined [2018] EWCA Civ 72 (this judgment).