Naylor v Volex Group Plc

LORD JUSTICE BUXTON: The appellant, Mrs Yvonne Naylor, was employed by the defendants, the Volex Group Plc, in work described more fully in the learned judge's judgment, but which for present purposes can be summarised as being the making-up of wiring harnesses for insertion into vans or other vehicles. Part of that operation involves the soldering of those wires. Mrs Naylor was not originally directly involved in that. Her case is that from April 1997 she was exposed to the actual soldering. That was in principle an operation exposing the employees to some hazard. The reason for that is set out in paragraph 4 of the learned judge's judgment, which I can do no better than to quote:

The claim on which she succeeded at the trial was under the 1994 Control of Substances Hazardous to Health Regulations 1994 ("the regulations"). Regulations 6 and 7(1) provide as follows:

When this appeal was initially put in hand and when permission was granted to appeal to this court, it was possible to say that there was some uncertainty about the state of authority in this court with regard to the true construction of those regulations; though I am bound to say that even at that stage that contention seemed to me to be a difficult one. However, the court now has the benefit of its recent decision in the case of Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689.  At this stage I need do no more than read paragraph 27 of the court's judgment, which is in the following terms:

The judgment of Lord Nimmo Smith, to which this court there refers, had compared the position under section 29(1) of the Factories Act 1961. Lord Nimmo Smith's view that that section also imposed a similar strict liability on the employer, comparable to that which he discerned in the regulations, echoed the general view of the relevance of the concept of reasonable practicability to the employer's liability which was expressed by this court in Larner v British Steel [1993] 4 All ER 102. I would venture to mention in particular the citation by Hirst LJ at page 110D and by Peter Gibson J (as he then was) at page 113A of a dictum of Lord Guest in Nimmo v Alexander Cowan [1968] AC 122. I accept that those observations were addressed to a different provision, but it was clearly the view of Lord Nimmo Smith that they ran in parallel with the view that he took, and this court has now taken, of the present regulations.

I turn to this case.

It is common ground that colophony fumes have for many years been recognised as an environmental employment hazard. The question was what was the level, if any, of safe exposure to such fumes. Although the present employers provided general ventilation in the workplace, they had never provided local exhaust ventilation at the particular repair benches where the claimant's exposure occurred. Had such local exhaust ventilation been provided, as I understand it the problem would not have arisen.

Turning to the regulations, the judge found that there had been a breach of regulation 6 in circumstances to which I shall come, and also a breach of regulation 7. This he explained in paragraph 20 of his judgment. He first of all explains why he thought that in the circumstances a risk assessment had been required in January 1997 under the provisions of regulation 6(2)(a). (That finding of the judge is contested and I shall come back shortly to explain the basis upon which it was put.) He continued thus:

I turn to the breaches in more detail.

First, the breach of regulation 6. The employers had originally, before 1997, made an assessment of risk, although we have not seen it and apparently it was not made in writing. That had led them to think that persons working in the situation of Mrs Naylor were not exposed to a significantly dangerous risk from colophony. That assessment was probably based upon standards provided by the Health and Safety Executive. In January 1997 the Health and Safety Executive standards were withdrawn. At broadly at the same time, the employers received a report from a firm of environmental consultants, to whom I will refer as RPS, with regard to exposure from colophony.

Evidence was given about the receipt of that report and other relevant matters by a Mr Jones, who had been for many years the defendant's Group Health and Safety Officer and who was responsible for the defendant's reaction to health and safety hazards. The fact of withdrawal of the Health and Safety Executive requirements was set out in a leaflet produced by that body about which there was dispute as to when it had arrived in Mr Jones' possession. He gave evidence to the judge, as I understand it, that he had had that leaflet in January 1997. The judge was later told (although Mr Jones was not invited to go back into the witness box) that that had been an error on Mr Jones' part. All that he had had in January was the RPS report. When the judge dealt with this matter in his judgment, it is fair to say -- and hardly surprising -- that he appears to have believed that Mr Jones had the HSE report itself in January 1997. As I say, it is hardly surprising that he thought that in view of the evidence he had had to that effect.

I am content to deal with the matter, having been addressed at considerable length by Mr Feeney on this point, on the basis that in truth all that the employer had was the RPS report at that date. If, however, one turns to that report, it is clear from it, and from passages that the judge cited, that there was serious cause for concern about the previous methods of testing. The consultants said this at page 2 of their report:

The judge said, believing that Mr Jones had positive information that the HSE standard based upon the then Occupational Exposure Standards previously used had been actively withdrawn by the HSE, that that was a significant moment when it was necessary under section 6(2)(a) for there to be a reassessment, there being reason to suspect that the original assessment was no longer valid. That, if I may say so, was a clear and obvious conclusion from the evidence that was before him. But even if Mr Jones had given evidence about his correct state of mind, that he only had the RPS report, nonetheless in my judgement that report itself should unambiguously have rung warning bells in the mind of any health and safety officer. What the employer was being told was that the sure standard previously relied on was under investigation, and could not safely be relied on. In those circumstances a finding that a new risk assessment was required, with the possible conclusion that the work either must be stopped or that the practicable step of installing local ventilation should be taken, was clearly something that should have come to attention.

I say all that because it appears to be suggested in this appeal that, because of the confusion about which document Mr Jones actually had in January, this appeal should be allowed to the extent of the matter being remitted to the learned judge for him to review the regulation 6 position on the basis solely of the RPS report. That in my judgement would be a futile exercise because even if that were done, it would certainly be open to the judge -- and I would go so far as to say he might well be bound -- to find that the reliance on the RPS document alone led him inexorably to the same conclusion. There are no grounds, therefore, for going behind the judge's finding as to regulation 6. I have gone into that matter at some length because of the complaint that was made about the confusion as to the underlying documents.

The question as to breach of regulation 7 is somewhat more straightforward. The judge is criticised because he said, in the passage that I have already read, that there was no claim made in respect of reasonable practicability. He is said to have misunderstood paragraph 4 of the defence, which reads as follows:

The judge said this about paragraph 4 in paragraph 21 of his judgment:

On the main question of liability, therefore, this appeal is in my judgement bound to fail.

I come to the two factual questions. The first concerns the dates at which Mrs Naylor was exposed to colophony. On the medical evidence it was common ground that the diagnosis of occupational asthma on which the claim depended needed the claimant to show that she had worked on soldering in July to October 1997 on her return to work from her honeymoon, as well as during a previous period in April to May of 1997. At the trial, but not before, the claimant advanced circumstantial considerations to support her evidence of that fact, saying that she had gone back to soldering because of the removal of a fellow worker, a Mrs Hatton, to another section of the factory when she, Mrs Hatton, also returned from honeymoon. Mrs Hatton was already a witness as to the general nature of soldering, but she only volunteered evidence supporting that aspect of Mrs Naylor's claim at the trial itself. The defendants had called a witness, a Mrs Farrimond, to say that Mrs Hatton had only transferred to the other work in 1998. That evidence was given, as we understand it, on the second day of the trial, Mrs Farrimond saying that she had consulted the wage records from 1998 which established Mrs Hatton's position in 1998. It was pointed out that those records did not cover the relevant period of 1997. Therefore there were produced overnight, and after Mrs Naylor and Mrs Hatton had completed their evidence, the wage slips for Mrs Hatton which were said to demonstrate that there had been no such increase in her pay over the relevant period in 1997 as would have been granted for the new job to which she said she had moved.

The judge understood the employer's case on this point to be -- and we have not been told by Mr Feeney otherwise -- that Mrs Naylor was not just mistaken about the period of her employment but was activity lying about it. He dealt with that allegation in the light of the wage slips in this way (paragraph 31):

Before us there is an application in terms of the jurisprudence of Ladd v Marshall [1954] 1 WLR 1489 to admit not only the four wage slips that were at the trial but also a significant number of further wage slips which are said to demonstrate that Mrs Hatton did not move until 1998. That is supported by a substantial witness statement by Mr Simon Denyer, the solicitor for the appellants. The difficulty about that application, it seems to me, is this. There were already present at the trial, albeit belatedly, wage slips available to be used, if so interpreted, to challenge the evidence of Mrs Hatton. Indeed, in paragraph 8 of his witness statement in support of this application, Mr Denyer points out that one of those wage slips was, as he puts it. "crucial for causation", because it covered a particular month in 1997 in respect of which month both the claimant and Mrs Hatton had suggested that Mrs Hatton had already moved. There was, therefore, relevant evidence in this sense already before the court. As we understand it, those slips were produced but no further application was made either for an adjournment or to recall certainly Mrs Naylor and possibly Mrs Hatton, and to confront them with these slips.

One understands why it was thought best to take that course. Applications for recalling witnesses or, much worse, for adjourning the trial are not lightly made. The fact remains, however, that this court has to decide whether it should now allow this appeal to the extent of sending the matter back to the judge for further consideration. On the evidence supporting the application, which I have already set out, it is difficult to see how the new slips covering 1998 will improve the position as it was originally before the judge. The substance of this complaint therefore is not really that there was new evidence that ought to have been before the judge, but that he made an inadmissible or improper assessment of the evidence that he actually had: which did include, at the end of the day, these wage slips. It seems to me impossible to say that the course that the judge took was not open to him. He was faced with two witnesses whom he had heard give evidence, who had not been confronted with the slips although they could have been, and whom he clearly found to be witnesses of truth. In my judgement it would be quite inappropriate now to send the matter back to the judge effectively suggesting that he ought to think again. I would therefore not grant the application and would not allow the appeal on that point.

Finally, complaint is made about the judge's treatment of the medical evidence. It was a strong point put against Mrs Naylor that she had been suffering from conventional (as I will call it) asthma before coming into contact with colophony, and therefore her asthmatic symptoms of which she complained, and which were established, were not causally related to the colophony. Reliance was placed upon a number of doctors' notes that suggested breathing difficulties in the early days of 1997. Reliance was also placed on a note taken at Bolton Metropolitan Hospital when Mrs Naylor presented there in a condition of considerable distress with her breathing in October 1997, which reported a history given by her husband that she had suffered breathing problems for some undefined period prior to that, but certainly predating the exposure to colophony.

The judge had the benefit of very skilled medical evidence, including the evidence on behalf of the claimant of a Dr Rudd, who is a most distinguished consultant in this field. Dr Rudd had had the benefit of not only examining the claimant but also taking a history from her and her husband. Mr Naylor's evidence at the trial was that his wife had not had previous respiratory problems, and I will note in passing that the judge specifically recorded that Mr Naylor was a witness of truth. Dr Rudd, being shown the notes, gave what I have to say is a comprehensive account of them to the judge. He expressed the view that the earliest of them did not record asthma but upper respiratory tract infection, and the General Practitioner had never suggested otherwise; and that the note that emanated from the visit to Bolton Hospital could not be relied upon. It was a houseman's note taken at a time of considerable stress for all concerned, and was the sort of note that would not be relied upon against the presence of other evidence. That is, if I may say so, exactly the sort of informed judgment of a medical history that an experienced clinician is entitled to make, and it is exactly the sort of evidence that a judge in his turn is entitled to accept, if he finds it convincing, from a man of that standing in the profession. The notes themselves, of course, prove nothing. They require to be interpreted. In this case each and every one of them, in my judgement, was as a whole interpreted by Dr Rudd in a sense that the judge was entitled to accept. There are no reasons for seeking to go behind the medical findings in this case and I am bound to say that I have to express some surprise that that was even attempted.

There are no grounds for allowing this appeal. I would dismiss it.

LORD JUSTICE CARNWATH: I agree.

LORD JUSTICE SIMON BROWN: I too agree and wish to add only a few sentences with regard to the main ground of appeal, essentially to express my surprise that it has been persisted in beyond 21 November 2002 when Hale LJ, who herself some nine months previously had given permission for the present appeal, gave this court's judgment in Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689. Dugmore, to my mind, dictates that the central ground of the present appeal fails for two independent reasons.

The first reason -- and this indeed appears fatal to the appeal with or without the problem that the appellants face in Dugmore -- is because the judge was to my mind bound to find here a breach of regulation 6 of the 1994 regulations by reference to the information which Mr Jones acquired in January 1997. Even accepting that Mr Jones at that date learned only of the unreliability of the previous measurements upon which, up to that date, the Occupational Exposure Standard for colophony (the hazardous substance in this case) had been calculated, rather than that the OES had already been withdrawn, when he did learn of that unreliability it became at once impossible to rely upon the previous assessment, which was that the risk to which those in the respondent's position were exposed was minimal. At that date, therefore, regulation 6(2)(a) required the previous assessment to be reviewed forthwith. It was not. From then on, even were the foreseeability of risk to be regarded as relevant to determining whether or not the appellant employers were in breach of regulation 7, they could no longer rely on their earlier assessment of the risk being minimal. From that date they simply had no knowledge of the extent of the risk to which they were exposing their employees.

As I understand this court's decision in Dugmore, that essentially was the conclusion there reached in paragraph 24 on the facts of that case. The court then, however, went on to consider the position under regulation 7, even were they wrong with regard to that first conclusion. Let me read paragraph 25 of Dugmore:

The claimant's position here is therefore stronger even than it was in Dugmore. Regulation 7 unambiguously provides that the employer shall, if, as here, it is reasonably practicable to do so, prevent the exposure of their employees to hazardous substances. They failed in that plain duty.

I agree with all that my Lord has said on the other, perhaps even less promising, grounds of appeal. Having regard to the comparatively small size of this award, it is puzzling indeed why the appeal has been pursued with quite such vigour. It is dismissed.