WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Allison - v - London Underground Ltd

Date	Court	Claimant(s)	Task	Injury	Judgment for
13 Feb 2008	Court of Appeal	Allison	Use of hand operated control	Tenosynovitis	Appellant (Claimant)
25 Jan 2007	Central London County	Allison	Use of hand operated control	Tenosynovitis	Defendant

Ms Latona Allison developed Tenosynovitis of the flexor pollicis longus tendon sheath. It appears to have been common ground at the initial trial of this matter that this injury was caused by the position in which she held her thumb, resting against the chamfered end of the handle, while applying pressure to the traction brake controller (TBC), which is used to drive the train. However, her claim failed at first instance (decision reversed on appeal) in the absence of any finding by HH Judge Cowell of a breach of statutory duty or negligence. The circumstances in which her injury arose are described in detail in the passage of the Court of Appeal Judgment headed 'The Factual background', at paragraphs 3 to 10. (The full text of the Court of Appeal Judgment is available free of charge on the BAILII website) HH Judge Cowell held that the duty imposed by regulation 9 of the Provision and Use of Work Equipment Regulations 1998 was not absolute but required the employer to provide such training as was 'adequate in all the circumstances'. However, HH Judge Cowell recognised that a difficult question of construction arose and gave permission to appeal, which the Claimant duly did.

As might be expected, much of the Court of Appeal Judgment addresses the construction and interpretation of regulation 9 of the Provision and Use of Work Equipment Regulations 1998, which involves complex legal argument. Of note from a lay perspective is that: the Claimant is described as a very small woman, only 5 feet 1 inch in height and of slight build; her arms are short and her hands small; and that she found it natural and comfortable to rest her thumb against the chamfered end of the handle, when driving a Jubilee Line train. Her evidence was that she thought that the end of the handle was chamfered for the purpose of providing a resting place for the thumb. This design feature was evidently introduced on Jubilee Line trains at the suggestion of the two experienced drivers who were consulted at the design stage. They suggested that a chamfered end would be more comfortable for them, when grasping the handle. The idea seems to have been accepted by management partly because it would make it more difficult for the driver to prop the handle in position.

This modification of the design of the handle was not the subject of any expert advice, either at the design stage or later when it had been put into use. Most of the male drivers, whose hands were larger, apparently did not rest their thumbs against the chamfered end but tucked them underneath the handle. However, the evidence was that the position of the thumb was a matter for the driver's choice. Some drivers would change the position of their thumbs from time to time and rest them against the chamfered end. No special instructions were given to the drivers as to how the thumb was to be positioned in relation to the chamfered end while the handle was under pressure, although drivers were trained to keep their wrists straight and to avoid dorsiflexion because it was recognised that applying pressure while holding the wrist in dorsiflexion could give rise to tenosynovitis.

The Court of Appeal found that under regulation 9 of the Provision and Use of Work Equipment Regulations 1998 Ms Allison's employer should have ascertained what risks there were in holding the handle in the way Ms Allison did, and having done so by taking the advice of an ergonomist, should have instructed drivers not to hold it in that way but differently. While not wishing to trespass into legal matters or to question their Lordships' Judgment, from a lay perspective it appears to be asking much of the Defendant, and of any ergonomist who might have been asked to advise, to identify such a hazard given that: the Claimant evidently found it natural and comfortable to rest her thumb against the chamfered end of the handle; and that until the Claimant suffered her injury there had evidently been no cases of tenosynovitis arising from the use of the chamfered handle.

Of particular note from a lay perspective is a passage of the Court of Appeal Judgment on the 13th February 2008, at paragraph 58, in which Lady Justice Smith states:

Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that [the Judge at first instance] was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury.

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Last updated: 16/10/2009