Court of Appeal
Published February 29, 2008
Allison v London Underground Ltd
Before Sir Anthony Clarke, Master of the Rolls, Lady Justice Smith and Lord Justice Hooper
Judgment February 13, 2008

The statutory requirement for an employer to provide adequate training for its employees imposed a higher duty than the common law duty which incorporated reasonable foreseeability; the statutory test was what training was needed in the light of what the employer ought to have known about the risks from the activities of its business.

The Court of Appeal so held, allowing the appeal of the claimant, Latona Allison, against the dismissal by Judge Cowell on anuary 25, 2007 in Central London County Court of her claim for personal injuries against her employer, London Underground Ltd.

Mr John Foy, QC, for Ms Allison; Mr Christopher Purchas, QC and Mr George Alliott for London Underground.

LADY JUSTICE SMITH said that the claimant began work for London Underground in 1996, first as a guard then as a train driver. After developing shoulder strain in late 1998 she was transferred to the Jubilee Line. In early 2003 she developed tenosynovitis due to strain from the prolonged use of the traction brake controller, known as the dead man’s handle. She became unfit to work as a driver.

The claim rested partly on the alleged nadequacy of the risk assessment London nderground had carried out on the use of the Jubilee Line handle.

Regulation 3 of the Management of Health and Safety at Work Regulations (SI 1999 No 3242) required every employer to make a suitable and sufficient assessment of the risks to the health and safety of its employees to which they were exposed while at work. The judge did not deal with the suitability or ufficiency of the risk assessment carried out on the handle.

The claimant also alleged breaches of regulations 4 and 9 of the Provision and Use of Work Equipment Regulations (SI 1998 No 2306).

Regulation 4, which required the employer to ensure that work equipment was constructed or adapted so as to be suitable for the purpose for which it was used, incorporated a test of reasonable foreseeability of harm; whereas regulation 9, which imposed a duty on employers to provide adequate training for health and safety purposes, gave no indication that such a test governed the duty.

The judge rejected the regulation 4 claim against which there was no appeal.

The claimant submitted that the duty to provide training under regulation 9 was strict or absolute and that the test did not depend upon reasonable foreseeability. If the claimant had been trained not to rest her thumb on the chamfered end of the handle, she would not have suffered injury. It mattered not whether London Underground could not have reasonably foreseen the need to provide that particular element of training.

The judge held that the training had been adequate because it had been adequate to deal with the risks which London Underground had actually foreseen.

In argument, counsel used the expressions “strict liability” “absolute liability” and “no-fault liability” interchangeably. Her Ladyship did not think that they all meant the same thing.

“Strict liability” was used where liability could not be excused on the ground that it was not practicable or reasonably practicable to avoid the risk.

“Absolute” or “no-fault” liability was reserved for the smaller class of obligations which imposed on the employer liability for something which it could not have avoided even by exercising all possible care.

Regulation 9 of the 1998 Regulations imposed a mandatory duty to provide adequate training. The test for the adequacy of training for the purposes of health and safety was what the employer ought to have known about the risks arising from the activities of its business.

To say that the training was adequate if it dealt with the risks which the employer knew about, was to impose no greater a duty than existed at common law. The statutory test was higher and imposed on the employer a duty to investigate the risks inherent in its operations, taking professional advice where necessary.

What the employer ought to have known was, or should be closely linked with the risk assessment imposed by regulation 3 of the 1999 Regulations.

That required the employer to carry out a suitable and sufficient risk assessment in order to identify the measures it needed to take to comply with the requirements and prohibitions imposed upon it by or under the relevant statutory provisions. What the employer ought to have known would be what it would have known if it had carried out a suitable and sufficient risk assessment.

The judge thought that having decided that the training had been adequate in all the circumstances he need not decide whether the risk assessment had been suitable and sufficient. That was to put the cart before the horse.

Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in its operations and took steps to minimise those risks. They should be a blueprint for action.

The right approach for the court, in deciding whether the claimant’s training had been adequate for health and safety purposes, was to examine whether London Underground’s risk assessment had been sufficient and suitable.

Her Ladyship concluded that London Underground ought not to have put the new handle into service without taking advice from an ergonomist. If it had it done so, it would have identified the need to train the drivers how to hold the handle to minimise the risk of strain injury.

Because that advice was not taken, the risk arising from the design was not recognised as it should have been and, in breach of regulation 9, the claimant’s training was inadequate. Had she been given proper training the claimant would probably not have developed the strain injury which she had suffered.

The Master of the Rolls gave a concurring judgment and Lord Justice Hooper agreed.

Solicitors: Thompsons; Kennedys, Chelmsford.

Explore Law

• Corporate Law

• Public Law

• Columnists

• Law Panel

• Student Law

• Law Reports

Times Recommends

• Iranian bank challenges EU sanctions
• Lord Falconer to join Gibson Dunn
• A Judge by name is new Lord Chief Justice