WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of Health and Safety Regulations - Kane -v- Eaton Williams Group Ltd

Management of Health and Safety at Work Regulations 1992
Regulation 3	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 28, Mr Recorder Rhodri Davies QC stated:

Regulation 3(1) of the MHSWR requires every employer to make "a suitable and sufficient assessment of ... the risks to the health and safety of his employees to which they are exposed while they are at work ... for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions".

Section 47(2) of the Health and Safety at Work etc Act 1974 provides that breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable unless the regulations provide otherwise. Hence, [Counsel for the Claimant] says that breaches by the Defendants of the MHSWR and of the other regulations referred to below constitute actionable breaches of statutory duty.

In his Judgment, at paragraph 46, Mr Recorder Rhodri Davies QC noted that the Defendant had undertaken a risk assessment of work on the punching, folding and cutting machines on 18 February 2004, which categorised the hazards arising from punching machines as low risk and that there was nothing in the risk assessment to suggest that repetitive strain type injuries were identified as a risk at that time. After reviewing the evidence, Mr Recorder Rhodri Davies QC stated:

Taking all these factors into account, I have come to the conclusion that, in respect of this period, the risk of injury to Trumpf operators through the use of snips was not such that precautions ought to have been taken by a reasonable and prudent employer or that precautionary steps ought to have resulted from a suitable and sufficient risk assessment.

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Manual Handling Operations Regulations 1992
	Contextual Commentary | Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 28, Mr Recorder Rhodri Davies QC stated:

The MHOR apply to manual handling operations which are defined as meaning "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force". [Counsel for the Claimant] submitted that this case was not about the transporting or supporting of a load but about the use of snippers. In their first joint statement, the expert ergonomists agreed at paragraph 1 that the Manual Handling Regulations were not helpful or relevant to their investigation of the significant matters in this case. I agree with them and with [Counsel for the Claimant]. I need not refer further to the MHOR.

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Personal Protective Equipment at Work Regulations
Regulation 4	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 29, Mr Recorder Rhodri Davies QC quoted the pertinent parts of the regulation 4 of the Personal Protective Equipment at Work Regulations and then, at paragraph 30, stated:

In my view, the only allegation to which the PPER could apply is the complaint that Mr Kane should have been provided with wrist supports.

Mr Recorder Rhodri Davies QC returned to this allegation in paragraph 93 of his Judgment in which he said:

Little was said about the need for or desirability of wrist supports. Mrs Griffin said that they needed to be fitted individually but that Mr Kane would certainly have been provided with them if he had asked. I do not find any breach of duty in relation to wrist supports.

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Provision and Use of Work Equipment Regulations 1998
	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 25, Mr Recorder Rhodri Davies QC noted that Counsel for the Claimant relied upon regulations 4, 5 and 9 of PUWE Regulations and went on to quote the pertinent parts of the regulations. Then, at paragraph 26, Mr Recorder Rhodri Davies QC stated:

I have omitted Regulations 6 (Inspection) and 8 (Information and instructions), which are also pleaded, as they do not appear to me to add anything to the case.

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Provision and Use of Work Equipment Regulations 1998
Regulation 4	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 27 (1), Mr Recorder Rhodri Davies QC stated:

It is alleged that, in breach of Regulation 4, the Trumpf machine was not suitably constructed, adapted or used because it was not programmed accurately so as to avoid the need for components to be snipped out of the metal sheeting;

Mr Recorder Rhodri Davies QC returned in paragraph 89 of the Judgment to this allegation, which he referred to as 'the first point', and then said:

In my view, the evidence did not support the first point. As part of this point it was suggested that more use should have been made of the ability to programme the machine so that it would cut components out completely, not leaving them held in by tags at all. The Defendants' witnesses explained that this was done where possible, but that it was only possible with components of a size and weight such that they would fit the chute under the machine and could be relied upon to fall down that chute under their own weight. Otherwise, loose components would simply jam the machine. I accept this evidence.

The remainder of this point depended on the proposition that, since the Defendants said (notably in their Further Information) that the process had since become much more efficient such that less snipping was required, it must have been a breach of duty not to have achieved such a level of efficiency earlier. Since I have not been persuaded that the process did become much more efficient over the relevant period, I reject this point on the facts. In any event, I would not accept the rather tendentious assumption that, whenever an employer makes an improvement, it must have been a breach of duty not to do it earlier.

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Provision and Use of Work Equipment Regulations 1998
Regulation 5	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 27 (2), Mr Recorder Rhodri Davies QC stated:

It is alleged that, in breach of Regulation 5, the snips were not maintained in an efficient state, in efficient working order and in good repair, particularly because they were often blunt, twisted or lacking operational self-opening springs;

Mr Recorder Rhodri Davies QC returned to this allegation in paragraphs 87 & 88 of his Judgment in which he said:

I now turn to the issue over the state of the snips. It was Mr Kane's case that the snips were frequently not in a serviceable state and that he complained about it. It was the Defendants' case that the snips were kept in good order and that no complaints were received. This flat contradiction in the evidence was not subject to a great deal of cross-examination on either side. It is not easy to resolve it, but I have not been persuaded that there was a real problem in this respect. It is notable that the point did not feature in the opening letter from Mr Kane's solicitors of 7 September 2004. No doubt, snips did wear out from time to time but there was no evidence that convinced that the Defendants were either cavalier or penny-pinching about the need to maintain and replace such items as necessary.

[Counsel for the Claimant] reminded me that, under PUWER, the employer has an absolute duty (not just a duty of care) to provide suitable work equipment and to maintain it in an efficient state (see Stark v The Post Office [2000] ICR 1013). Nonetheless, I am not satisfied that the duty was breached here. Even if it was, in a case of repetitive strain injury rather than a one-off accident such as that in Stark, it would be necessary to show that any breach continued for long enough to cause the injury, and I am even less satisfied of that.

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Provision and Use of Work Equipment Regulations 1998
Regulation 9	Kane -v- Eaton Williams Group Ltd | Find Other Cases

In his Judgment, at paragraph 27 (3), Mr Recorder Rhodri Davies QC stated:

It is alleged that, in breach of Regulation 9, Mr Kane had not received adequate training in the operation of the Trumpf machine and his superiors had not received adequate training for purposes of health and safety.

Mr Recorder Rhodri Davies QC returned in paragraph 89 of the Judgment to this allegation, which he referred to as 'the second point', when considering events up to Mr Kane first going off work due to wrist symptoms, and then said:

The second point does not lead anywhere at this stage in consequence of my conclusions that a reasonable employer, including a properly trained employer, would not have apprehended a risk of injury which needed to be addressed and that the Trumpf machine was being operated in an efficient manner.

However, when considering events after Mr Kane had returned to work, in paragraph 101 of his Judgment, Mr Recorder Rhodri Davies QC stated:

On the evidence none of Mr Kane, Mrs Griffin or Mr Jeffrey had received any relevant health and safety training. Mr Leyland, who was the health and safety officer at the time, was aware of the HSE's 1990 guidance, but not of its 2002 up-dated guidance, and clearly saw RSI problems as centred on keyboard use. In my view, this state of affairs constituted a failure to provide adequate training in breach of Regulation 9 of PUWER. I am not convinced that every member of staff needed to be trained in relation to ULDs, but a combination of training and organisation was needed so as to ensure that if an employee was diagnosed with tendonitis then positive attention was paid to the risk that was signalled by that diagnosis.

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Reporting of Injuries, Diseases and Dangerous Occurences Regulations
	Kane -v- Eaton Williams Group Ltd | Find Other Cases

Mr Recorder Rhodri Davies QC first referred to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations in paragraph 16 of his Judgment:

The HSE guidance also deals with the management of ULDs once they have occurred. [Counsel for the Claimant] relies on this aspect of the guidance as having been triggered after Mr Kane was diagnosed as suffering from tendonitis in late March [Counsel for the Claimant] drew attention to paragraphs 105 to 117 of the guidance, which include the following:

105 ... The approach to managing these complaints [ULDs] is broadly similar whether they are thought to have been caused by work activity, been made worse by the work or are largely unrelated to particular work tasks.

113 Receipt of a written diagnosis of an upper limb disorder may trigger a requirement to make a report to the relevant enforcing authority under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). This requirement applies only to a small number of ULDs which arise in the course of specified work activities. Appendix 4 provides further details.

115 Confirmation of a case of an ULD should be taken as a prompt to consider whether existing risk assessments and controls are adequate. This is especially important if there are other previously reported cases.

Mr Recorder Rhodri Davies QC went on to say, in paragraphs 17 to 22:

RIDDOR contains two reporting requirements which are potentially relevant to this case. The first appears at Regulation 3(2) which provides:

(2) Subject to regulation 10, where a person at work is incapacitated for work of a kind which he might reasonably be expected to do, either under his contract of employment, or, if there is no such contract, in the normal course of his work, for more than three consecutive days (excluding the day of the accident but including any days which would not have been working days) because of an injury resulting from an accident arising out of or in connection with work (other than one reportable under paragraph (1)), the responsible person shall as soon as practicable and, in any event, within 10 days of the accident send a report thereof to the relevant enforcing authority on a form approved for the purposes of this regulation, unless within that period he makes a report thereof to the Executive by some other means so approved.

This reporting obligation is triggered in the event of a person being unable to work for three (or more) days because of "an injury resulting from an accident arising out of or in connection with work". As will be seen, the Defendants made a report under this provision in June 2004.

The second potentially relevant reporting obligation appears at Regulation 5:

5.-(1) Subject to paragraphs (2) and (3) and to regulation 10, where-

(a) a person at work suffers from any of the occupational diseases specified in column 1 of Part I of Schedule 3 and his work involves one of the activities specified in the corresponding entry in column 2 of that Part; ...

the responsible person shall forthwith send a report thereof to the relevant enforcing authority on a form approved for the purposes of this regulation, unless he forthwith makes a report thereof to the Executive by some other means so approved.

(2) Paragraph (1) shall apply only if-

(a) in the case of an employee, the responsible person has received a written statement prepared by a registered medical practitioner diagnosing the disease as one of those specified in Schedule 3; ...

Schedule 3 includes in column 1 as a specified occupational disease:

Traumatic inflammation of the tendons of the hand or forearm or of the associated tendon sheaths.

And in column 2 as a specified activity:

Physically demanding work, frequent or repeated movements, constrained postures or extremes of extension or flexion of the hand or wrist.

Thus, under Regulation 5 of RIDDOR an employer must make a report if he receives in relation to an employee a written diagnosis from a doctor of traumatic inflammation of tendons of the hand and forearm and the employee is engaged in physically demanding work or repeated movements. Unlike Regulation 3, Regulation 5 requires a report whether or not the case arises from or in connection with work.

[Counsel for the Claimant] relies on the RIDDOR requirements as an indication of the standards of knowledge, care and attention to be expected of a reasonable and prudent employer.

When reviewing the evidence, Mr Recorder Rhodri Davies QC said, in paragraphs 54 & 55:

On 25 June 2004 Mr Baldy made an online RIDDOR report to the HSE in respect of Mr Kane's injury. This report described the injury as having occurred on 7 June 2004 at 8.00 a.m., as being tendonitis of the wrist, as an injury to an employee which prevented him from doing his normal work for at least 3 days and as having occurred while handling, lifting or carrying. The description of the circumstances said that Mr Kane had to load and unload the machine with sheet metal.

On 5 July 2004 an HSE inspector visited the Defendants' premises at Edenbridge in response to the RIDDOR report. Mr Baldy said that this visit came as a surprise to him. Following this visit, the HSE wrote to the Defendants on 16 July 2004.

Mr Recorder Rhodri Davies QC returned to the requirements of RIDDOR in paragraphs 98 to 100 of his Judgment:

[Counsel for the Claimant] is able to pray in aid paragraph 115 of the HSE guidance stating that confirmation of a case of an ULD should be taken as a prompt to consider whether existing risk assessments and controls are adequate and the requirement under regulation 5 of RIDDOR for an employer to make a report if he receives in relation to an employee a written diagnosis from a doctor of traumatic inflammation of tendons of the hand and forearm and the employee is engaged in physically demanding work or repeated movements.

I have concluded that [Counsel for the Claimant] is right about this. Mr Kane had a physical job which required extensive use of his arms, wrists and hands. I consider that, when Mr Kane returned to work after a week off as a result of tendonitis, a reasonable and prudent employer who was familiar with current good practice, as evidenced by the HSE guidance and the RIDDOR requirements, would have been alerted to the risk of a connection between Mr Kane's work and his tendonitis. Mr Baldy, who made the RIDDOR report in June 2004, was inclined to agree that the need for a RIDDOR report in April had probably been overlooked.

The relevance of the RIDDOR requirements here is that, whether or not the Defendants were strictly required to make a report in April 2004, the requirements of regulation 5 demonstrate the need to be alert to cases of tendonitis even if it is not obvious that the injury is caused by work.

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Last updated: 14/05/2013