Court of Appeal
In an appeal by the British Coal Corporation ('BC') from the decision of Judge Stephenson sitting as a judge of the High Court on 30 September 1997 the finding of liability as against BC in respect of Vibration White Finger ('VWF') claims by seven plaintiffs was challenged. Claims by two other plaintiffs were rejected. Some of the awards were also challenged. The nine original plaintiffs had been lead cases, representative of some twenty-five thousand similar claims brought against BC by employees alleging that in consequence of BC's negligence they developed and suffered from VWF. It was agreed that the critical symptoms of this condition, in particular loss and impairment of sensation and movement in the fingers, were now well known. VWF had two components: the first, vascular, was well understood. The second, sensorineural, was more recently understood. The sysmptoms were often very minor indeed, limited to either intermittent tingling or intermittent numbness, and, it was said, in the context of the mining industry where employees faced constant and major physical danger, trivial. In some cases, however, it was accepted that the condition could become much more serious. It could involve serious and permanent discomfort and disability to the digits of each hand. The condition could occur naturally as it did in about four to five per cent of the population. When the condition arose from VWF it was the result of work with powered hand tools transmitting the vibrations to the hands and arm of the operator. The effect of exposure was cumulative. If the condition was recognised in its early stages it could be cured by removing the employee from such work. The critical issue in the appeal was the assessment of the degree of exposure, which might, subject to appropriate precautions for the continuing safety of the employees, be permitted. The judge had decided that (a) by 1 January 1973 BC ought to have recognised that work with the tools complained of gave rise to a foreseeable risk of VWF; (b) by 1 Janaury 1975 BC ought to have recognised that effective precautions in the form of warnings, system and routine examinations could and should have been taken in respect of such work; and (c) by 1 January 1976 BC ought to have recognised that effective precautions in the form of job rotation could and should have been taken. BC appealed against those conclusions.
HELD: (1) For any of the plaintiffs to succeed it was necessary for that plaintiff to show that the level of exposure to vibrating tools and hence the risk of VWF was greater than a prudent employer should have allowed. They had so persuaded the judge. (2) It was commonplace that employers owed a duty of care at common law to provide safe plant and appliances for the use of their employees, the standard required was not absolute but reasonable care. As was said in Paris v Stepney Borough Council (1951) HL not every risk to safety can be eliminated. Work underground at a coal face was dangerous but liability did not automatically attach to every accident there resulting in personal injury. (3) In countering the plaintiff's arguments BC had attempted to shelter behind a draft British Standard available in the mid-1970s (DD43) but that approach had been rejected by the judge. The judge had concluded that any exposure that exceeded de minimis should have been reduced by rotation. (4) The problem with this approach was that nothing in the evidence suggested that the use of vibrating tools after 1973 should have been banned. The employees were not exposed to an injury of such magnitude that the risk should have been averted by virtually prohibiting the use of vibrating tools throughout the industry. The judge did not sufficiently appreciate the consequence of his own findings that by 1975 an adequate system of warnings and surveillance should have been in place. There would have been no logic to such a system when most of those who used tools would not have gone on to develop any symptoms. De minimis exposure was neither practicable nor reasonable. (5) Nevertheless, BC had failed in its duty. The appropriate level of exposure that was commensurate with the nature of the industry was the 1994 "booklet" standard. After January 1976, any level of exposure in excess of that advised by the handbook required job rotation, in addition to warnings, surveillance and the other precautions identified at the first hearing. These had in fact been exceeded through the negligence of BC. (6) In the result all the appeals on liability were dismissed. As to other potential claimants the question would need to asked as to whether warnings would have been effective in individual cases: would robust men have been prepared to give up well paid work to avoid the risk of VWF, at any rate in the early stages? For those who would not have heeded the warnings the critical questions which would require resolution would then be whether their exposure was excessive and whether it caused VWF. (7) The Judicial Studies Board guidelines on general damages for VWF were too low. First instance decisions had, accordingly, been rather more generous. The JSB guidelines did not sufficiently acknowledge the severity of disability from VWF, particularly in Scale 4 cases. Appropriate awards were made to each plaintiff on this basis. An award of #5,000 for a man of 42 years with 13 years of VWF suffering which was permanent was top of the bracket but not excessive. At the higher level of VWF severity, an award was also deemed appropriate for disadvantage on the open labour market.
Appeals dismissed. Revised awards accordingly.
LTL 31/7/98, [1997] JPIL 50 (CA)
