Date of knowledge

Doherty & Others v Rugby Joinery (UK) Ltd, Court of Appeal, 17 February 2004

This is described in the judgment as a vibration white finger (VWF) case.

Strictly it is a hand/arm vibration syndrome claim as it involves numbness of the fingers, which is not a vascular symptom.

Eight female employees worked for the defendants in the woodworking industry at different times in the period 1970 to 1999.

They used tools that included nail guns, electric drills and screwdrivers, but only for a matter of seconds.

From 1983, however, they used the orbital sander which was the worst of the tools in terms of exposure to vibration.

At trial, condition and causation were found.

However, the claimants were ambushed to a degree on the question of foreseeability that was not pleaded.

This was commented on by Lady Justice Hale in her judgment, but without penalty to the defendants.

In all occupational illness cases the starting point on foreseeability is consideration of the duty owed by employers as outlined by Mr Justice Swanwick in Stokes v GKN (Bolts and Nuts) Limited 1968 1WLR 1776 when he stated: 'The overall test is the conduct of the reasonable employer taking positive thoughts of the safety of his workers in the light of what he knew or ought reasonably to have known...

where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it.'

The claimants did not raise any complaints.

The judge found that they had substantially exaggerated the amount of their use of the vibratory tools.

However, he did accept that they were suffering from VWF and that it had been contracted in the course of their employment.

The main issue as stated was the question of foreseeability.

In 1975, the British Standards Institution published a draft for development, number DD43:1975 entitled Guide to the Evaluation of Exposure of the Human Hand-Arm System to Vibration.

However, as VWF was not regarded as a problem in the woodworking industry, the judge found that this was: 'An insufficient trigger to an employer within the industry and particularly so as there is no history of complaint.'

He held that the date of knowledge of the employer was 1991/1992.

Four employees who were exposed after 1991/1992 were successful on the basis that if they had been warned of the dangers, as they ought to have been, from that date their symptoms would have been reported and they may well have been removed from exposure to vibratory tools.

In short, four claimants were successful and four were not.

The Court of Appeal agreed.

While Mr Justice Wilson provides a useful summary of the case law on date of knowledge, it is the judgments of Lady Justice Hale and Lord Justice Auld that are of most interest.

Lady Justice Hale, in her last days in the Court of Appeal, made it clear that the case did not hold that the 'date of knowledge' of the risk of VWF in the woodworking industry was as late as 1991/1992.

The court has to decide what an employer should do to take reasonable care for his employees in all of the circumstances and because of the low levels of exposure to which the claimants were exposed, the much higher levels of exposure discussed in the publication, and the lack of any suggestion of complaint, the judge was entitled, in this instance to reach the conclusion in terms of the date of knowledge.

The need to warn employees, thereafter, however, was critical as the date of knowledge was insufficient to lay down a safe standard of exposure.

Lord Justice Auld provided lucid guidance on the complex topic of knowledge.

He stated; 'While the notion of a general "date of knowledge" may provide a useful starting point for considering the "date of knowledge" in any individual case, that is all it is'.

The court must then look to a number of factors individual to a specific case which include:

- The general nature of the industry in its widest sense, for example the woodworking industry.

- The particular type of work within the industry that is under consideration.

- The tools used by the claimant.

- The nature and pattern of the use of those tools.

- The extent to which the employer, in those service industries should have been put on notice that harm might result to the claimant.

In a nutshell, the court has a responsibility to identify whether and when the employer's duty to do something about the risk of harm to the claimant was by that combination of circumstances.

It is too easy blandly to adopt a date of knowledge for a particular condition.

This case highlights the need to look beyond the general to the specific.

It underlines the importance of the lack of warnings in occupational illness cases.

I recommend the judgment as a guide to looking at knowledge, particularly in relation to hand/ arm vibration syndrome claims.

A cyclist's responsibility when passing a parked vehicle

John Burridge v Airwork Limited, Court of Appeal, 19 March 2004

Lawyers may recall John Burridge, a goalkeeper of some renown who played for Aston Villa, the West Midlands' most successful football team.

Mr Burridge was riding his bicycle when he was overtaken by a minibus driven by the defendant.

The minibus pulled onto the hard shoulder a little in front of him.

Mr Burridge was cycling on the inside of the line dividing the hard shoulder from the carriageway.

As he approached the vehicle the door of the minibus opened and his bicycle hit the edge of the door and he fell off into the path of a car travelling along the highway in the same direction as him and was struck, suffering injury.

Primary liability was not contested at the appeal.

The issue concerned contributory negligence on the part of Mr Burridge in failing to foresee that the door of the vehicle may have opened and, therefore, take steps to avoid a collision with it.

Lord Justice May said that the claimant could, indeed, have foreseen that the door would open and had an opportunity to take evasive action but the question was, was he wrong not to do so? The judge found that each case must be decided at on its own facts, and ruled that Mr Burridge was not at fault in this instance because, from the evidence available, it is likely that he would have put himself into more danger by moving further into the carriageway.

Interestingly, the judge stated that stopping his bicycle was 'not practical bicycling'.

Lord Justice Pill agreed that the 'potential hazard', of moving further into the carriageway meant that not doing so did not mean that the claimant had failed to take 'ordinary care for himself'.

In conclusion we can surmise that the Court of Appeal was of the view that:

- Cyclists should foresee that the doors of parked vehicles may open as they are passing.

- They have a duty to take care for their own safety.

- In looking at contributory fault a balance must be struck between the risk of putting the cyclist into further danger by moving away from the parked vehicle.

- There is no suggestion that there is a need for cyclists to actually stop the bicycle.

The defendant was found wholly to blame.

By Simon Allen, Russell Jones & Walker, Sheffield