Allison v London Underground - [2008] EWCA Civ 71
This case, whilst applying Dugmore v Swansea NHS Trust,
2002, nevertheless makes some helpful comments in relation to
strict, or no fault, liability. The claim by the pursuer was
brought under the Provision and Use of Work Equipment Regulations
and not the Control Of Substances Hazardous to Health Regulations,
as was the position in Dugmore. However, it restates that
no fault liability is rare and requires clear words of imposition.
The pursuer was a London tube train driver who developed
tenosynovitis, a repetitive strain injury, to her wrist. It was
accepted this was due to her prolonged use of a traction brake
controller. The brake controller had been modified by two other
drivers for reasons of comfort but without taking expert advice.
Her case was initially dismissed and she appealed, arguing that the
defenders duty under Regulation 9 of PUWER to ensure 'adequate'
training was absolute.
The Court of Appeal allowed the pursuer appeal and confirmed
that the words 'to ensure' implied a mandatory duty. However, that
meant no more than that the duty to train was mandatory. It did not
raise the meaning of 'adequate' to the high level that the pursuer
contended for and Regulation 9 did not impose no fault liability,
although the statutory duty was higher than that imposed at common
law. The employer would, under statute, have to investigate the
risks inherent in his operations, taking professional advice where
necessary.
The case nevertheless provides some protection to employers who
have done everything possible to protect their employees. It will
assist in fighting claims that stand a reasonable prospect of
success because the employer has taken steps to protect employees
from injury.