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Catherine Foster successful before Court of Appeal- who hold that transitory vibration exposure was not negligent.

Adrian Bowe v Mersey Rewinds Engineering Ltd & 2 Others [2018] EWCA Civ 72

Facts

The claimant worked for the defendants at differing periods between 1985 up to the date of trial, largely in the same or very similar capacity, alleged to be in the role of armature winder and fitter. The extent of fitting work and consequently vibratory tool usage was disputed in evidence.

The matter came before the County Court at Liverpool on the preliminary issues of breach of duty and limitation, running over some 4 days in October 2014 and February 2015.

The Recorder at first instance found that the claimant was an armature winder.  Armature winding is “a highly skilled job which does not involve the use of vibrating tools”.  The Recorder found that the claimant also carried out other tasks more usually carried out by fitters but he did not do so as frequently as armature winding.  The other tasks did require the use of needle guns and air chisels with such tools reaching the vibration threshold levels in fairly short periods of use.

The Recorder concluded that each defendant was in breach of its duty of care to the claimant because they “transitorily” exposed the claimant to vibration levels above threshold levels over a period of many years when the needle guns and air chisels were used and took no steps to warn the claimant about the potential effects to his hands/arms nor monitor his tool usage.

It was on the issue of transitory tool usage that the defendants sought permission to appeal the first instance decision.

The argument 

The Appeal Judges were required to address the issue of whether “transitory” exposure was capable of leading to a finding of breach of duty.

The claimant advanced the argument, relying on the conclusions of the single joint engineer (who did not give oral evidence at first instance), that vibration threshold levels would be exceeded by using a needle gun for 3 minutes.  Consequently if accepted that the claimant used a needle gun for just 30 minutes every two weeks, the daily equivalent would be 3 minutes per shift.

The Court of Appeal rejected the claimant’s approach, firstly on the basis that there was no expert evidence to suggest 30 minutes exposure fortnightly equated to 3 minutes exposure on 10 occasions.  Secondly, at first instance, there had been no finding that the claimant used the needle gun once a fortnight or at any other level of frequency or regularity nor were there any findings about the frequency of use of the air chisel.

In the circumstances the Court of Appeal concluded that in the absence of any finding as to frequency and any expert evidence about the effect of intermittent use at such a frequency it was not open to the Recorder to conclude there has been a breach of duty for transitory exposure, even over many years.

In light of the evidence available the defendants were therefore successful in their appeal.

Commentary

Whilst the issues in this matter were fact sensitive, the case illustrates the importance of ensuring a clear chronology of tool usage is obtained from claimants and also reinforces the existing authorities that breach of duty in vibration related case does have to be more than transitory or occasional exposure.

Catherine Foster represented the successful Appellants, instructed by Weightmans LLP & BLM.

Credit: Weightmans LLP for the note.



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