Annoushka Khadem a Senior Associate at BLM acted on behalf of the second defendant in Bowe v Mersey Rewinds Engineering Limited a Court of Appeal decision which has ruled that infrequent and transitory exposure to vibration levels above the daily guidance threshold limits does not automatically give rise to a foreseeable risk of injury.

Background

The claimant worked as an 'Armature Winder' from 1986 to 2014 and alleged that during his employment with the three defendants he was often, and for prolonged periods, required to use vibrating tools which caused him to develop vibration white finger and carpal tunnel syndrome.

The first and third defendants ran limitation defences. Annoushka on behalf of the second defendant ran a causation defence, namely that the claimant did not frequently work with vibrating tools and that ‘transitory’ exposure to vibration above the threshold level does not automatically lead to a finding of breach of duty, nor does it pre-suppose causation of harm.

At first instance the Recorder rejected the claimant's allegation that he had been exposed to excessive levels of vibration on a continuous basis for 70 to 80 per cent of his working life. The recorder was satisfied that the claimant had deliberately exaggerated the extent of his exposure. The court gave weight to the fact the claimant was an Armature Winder, a skilled position, which did not involve the use of vibrating tools and that while the claimant did carry out some of the tasks usually reserved for fitters, he did this far less frequently than his role as an Armature Winder.

It was accepted that the tools which the claimant used reached the threshold level after approximately three minutes of use. The Recorder at first instance made a finding that the use of vibrating tools was occasional but "to the extent the claimant used the needle gun and the air chisel with all the defendants there was a breach of duty 'in that he was transitorily…exposed to levels above the threshold". The basis for this finding was that from time to time the claimant’s exposure exceeded the threshold level without any warning or advice or monitoring regarding the claimant's health or well-being.

The appeal

On appeal Annoushka instructed Catherine Foster of Crown Office Chamber, and together they appealed the decision of Mr Recorder Alldis, on the basis that the Judge wrongly found the defendant to be in breach of duty given the evidence before the court. The defendant also appealed on the basis that the claimant had failed to establish a foreseeable risk of injury arising from transient exposure.

The appeal was heard by Lady Justice Therwall, Lord Justice Moylan and Lady Justice Asplin.

The key points in issue were that:

  1. The Recorder had failed to appreciate the evidence on vibration exposure and the engineer's views that the use of needle guns and air chisels for more than three minutes a day would cause the action level to be breached, but in the context of calculating A8 values, namely 'average daily exposures' on which basis the action level was assessed, this was unlikely to result in harm

  2. Further, the Recorder failed to give due weight to the guidance documents which were available from 1994; and finally

  3. The Recorder failed to consider the question of whether the transient exposure had in fact given rise to a foreseeable risk of injury

The second defendant relied on the Court of Appeal's decision in Vance Daniels v Corus Limited [2010] EWCA Civ274 where the claimant had contended that reference to 'daily' in the relevant guidance document meant the amount of exposure in any day and that 'regular' simply meant regular exposure to vibration upon that daily basis. That analysis was rejected by Lord Justice Waller.

Lady Justice Therwall, handing down judgment, ruled that the recorder's conclusions as to breach of duty could not stand and that given the transitory exposure to vibration above the threshold, it was not open to the Judge to find this constituted a breach of duty accordingly and judgement was set side and a finding was made for the second defendant.

What this means for you

This case, like many vibration exposure claims, appeared to show minor breaches of duty by the defendant, however the nuanced approach taken by the second defendant challenged the presumption that those breaches were actionable, as it was not foreseeable that infrequent exposure to vibration above the threshold limit for very short periods of time, would represent a foreseeable risk of injury. Further, given how brief and infrequent the exposure was the claimant could not satisfy the court of causation of the injuries alleged. Without these points being looked at carefully one might simply have assumed that this was a case where breach was made out and given the claimant's symptoms the matter should be settled.

This case is a clear example of how careful handling of a vibration exposure claim can result in a nuanced and thoughtful approach to analysing foreseeable risk of harm.

What should be taken away from this judgment is that claimants have a high threshold to overcome and that simply pointing to infrequent exposure to high levels of vibration is not sufficient to make out their claim without more.