Personal injury law

Contraction of an allergy from exposure to latex gloves

Dugmore v Swansea NHS Trust, CA (Lady Justice Hale): 21 November 2002

This case involves the important application of the Control of Substances Hazardous to Health (COSHH) Regulations 1994.

Regulation 7(1) states 'every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled'.

In the instant case, Ms Dugmore was employed as a nurse by the defendants and as a result of wearing latex gloves developed an allergy and ultimately an anaphylactic reaction and was unable to return to working.

Her exposure was in 1993; this pre-dated the date of knowledge in the UK, which the court at first instance held was 1996 when the Medical Devises Agency (MDA) issued a bulletin 'Latex Sensitisation in the Healthcare Setting (use of latex gloves)'.

Though latex sensitisation had been 'recognised for many years' the judge found that employers would look to the MDA for guidance.

The claimant succeeded despite her earlier contraction of the allergy because of the application of the COSHH regulations.

The 1994 regulations, which replaced the 1988 regulations, create a duty on the employer to prevent exposure.

A claimant will succeed under the regulations if it can be shown that:

- There has been exposure to latex;

- Latex is hazardous to health;

- The exposure caused the allergy.

There was no difficulty in proving exposure and it was common knowledge that latex is a substance hazardous to health.

Likewise, causation was not contested.

The Court of Appeal found that regulation 7(1) created an absolute duty which was stricter than section 29(1) of the Factories Act 1961 in which the Court of Appeal in Larner v British Steel Plc [1993] ICR 551 had confirmed that the definition of 'safe' as applied to the responsibility of an employer to maintain a safe place of work was a question of fact and not dependent on whether there was a foreseeable risk of injury.

In the circumstances, it was left to the defendants to show that prevention of exposure was not reasonably practicable and that they had 'adequately controlled' the exposure by reference to both the nature of the substance and the degree of the exposure generally.

The court found that the defendant could have supplied the claimant with vinyl gloves as these were available at the time of exposure, and the onus was on the employer to go out and find out about these.

The fact that they made her wear latex gloves when other types of barrier were available resulted in a finding that they failed to adequately control the exposure.

In the circumstances, the defendants were found responsible for the claimant's condition, which was caused two years before their date of knowledge.

An updated set of the COSHH regulations for 2002 came into force on the 21 November of this year.

Regulation 7(1) remains the same.

These regulations are of primary importance to claimants in occupational exposure cases, and the Court of Appeal has confirmed both an absolute responsibility of the defendants to prevent exposure to substances hazardous to health; and an exacting interpretation of the defendant's get out in terms of their attempts to adequately control the exposure where prevention is not reasonably practicable.

By Simon Allen, Russell, Jones & Walker, Sheffield