Cotton v Helphire Ltd

An employer’s duty to provide health surveillance under Control of Substances Hazardous to Health Regulations 2002, regulation 11, arises only where the statutory conditions are established on the evidence. A workplace cough does not by itself establish an identifiable disease or adverse health effect related to exposure, or that surveillance was appropriate. Where the trial judge makes justified factual and medical findings that exposure did not cause the alleged occupational disease, an appellate court will not substitute its own assessment. Failure to establish causation is independently sufficient to defeat the claim.

The appellant had worked for Helphire Ltd and its predecessors as a car valet, checker and driver. He claimed damages for occupational asthma, alleging exposure to chemicals, cleaning products and exhaust fumes in breach of regulation 11 of the Control of Substances Hazardous to Health Regulations 2002 and at common law.

The Leeds County Court dismissed the claim. The Recorder found that the appellant had a persistent but unchanging cough, that his asthma was constitutional and became chronic following a serious infection in January 2011, and that there was no sufficient basis for finding work-related symptoms before then. The appeal challenged the factual findings, the approach to regulation 11, and the treatment of the medical and exposure evidence.

1. Appeal dismissed. The Recorder was entitled to make the findings he did about the appellant’s working conditions, symptoms and medical condition, and to prefer Dr Hind’s evidence over Dr Howard’s.
2. The existence of a cough during employment was not agreed medical evidence that the cough manifested an asthmatic condition or was caused by chemical irritation at work. The appellant’s evidence about the timing and development of his symptoms was rejected or treated as unreliable where it conflicted with the evidence accepted by the Recorder.
3. Regulation 11 of the Control of Substances Hazardous to Health Regulations 2002 requires health surveillance only where the statutory conditions are met. Under regulation 11(2)(b), the exposure must be such that an identifiable disease or adverse health effect may be related to the exposure, there is a reasonable likelihood of its occurrence under the particular working conditions, and valid low-risk techniques exist for detecting it.
4. On the findings made, there was no sufficient basis for concluding that the appellant had work-related symptoms which should have triggered health surveillance. The claim under regulation 11 therefore failed.
5. In any event, the appellant failed to establish causation. The absence of a finding that chemical exposure caused irritant-induced occupational asthma provided an independent basis for rejecting the claim.

• High Court (Queen’s Bench Division): Mr Justice Goss dismissed the appeal from the Leeds County Court order of Recorder Clayton dated 1 May 2018.
• Leeds County Court: The appellant’s claim for damages for occupational asthma and consequential loss was dismissed.