Bowe v Mersey Rewinds Engineering Ltd & Ors, Court of Appeal - Civil Division, January 31, 2018, [2018] EWCA Civ 72

Issuing Organization:Civil Division
Actores:Bowe v Mersey Rewinds Engineering Ltd & Ors
Resolution Date:January 31, 2018
 
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Neutral Citation Number: [2018] EWCA Civ 72

Case No: B3/2015/0832 & 1137 & 1168

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LIVERPOOL CIVIL AND FAMILY COURT

3YK54788

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/01/2018

Before :

LADY JUSTICE THIRLWALL

LORD JUSTICE MOYLAN

and

LADY JUSTICE ASPLIN

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Between :

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Mr John Benson QC and Mr Ivan Woolfenden (instructed by Norman Jones Solicitors) for the Claimant

Ms Catherine Foster (instructed by Weightmans LLP and BLM) for the Defendants

Hearing date: 11th July 2017

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Approved Judgment

LADY JUSTICE THIRLWALL :

  1. This appeal arises in a claim for damages for personal injury sustained in the workplace. The appellants are three defendants who employed the claimant at different periods during the years 1985 to the date of the trial. I shall refer to the respondent as the claimant and to the appellants as the defendants.

  2. It was the claimant's case that each defendant was in breach of its duty to take reasonable care to protect him from sustaining injury during the course of his employment. He alleged that frequent and prolonged use of vibrating tools caused him to suffer from vibration white finger (VWF) and carpal tunnel syndrome. The defendants admitted each owed a duty of care to the claimant as claimed. It was agreed at trial that none of the defendants took any steps at any time to warn, advise or monitor the claimant in respect of the potential effects on his health of working with vibrating tools. Each defendant denied that the claimant was subject to frequent or prolonged exposure to vibrating tools as alleged. Breach of duty was denied. Causation was also in issue. The first and third defendants pleaded a limitation defence.

  3. A trial was directed of two issues: limitation and breach of duty. The trial took place over 4 days some months apart - 15 and 16 October 2014 and 16 and 17 February 2015. The recorder gave an extempore judgment on 18 February 2015. He dismissed the limitation defence on the grounds that the claimant's date of knowledge (as defined in Section 14 Limitation Act 1980) was within the three years before the issue of proceedings. There is no appeal against that determination.

  4. The recorder also concluded that each defendant was in breach of its duty of care to the claimant because over many years it ``transitorily'' exposed the claimant to vibration speeds above what is known in the industry as ``the threshold level'' but took no steps to warn him about the potential effects on health of working with vibrating tools, or to monitor his exposure or otherwise to advise him about working with vibrating tools. It is against the finding of breach that the defendants appeal.

    Background

  5. It was the claimant's case that he began working with vibrating tools from about 1986. The British Standard relevant to the facts in this case is the Guide to Measurement and evaluation of human exposure to vibration transmitted to the hand, BS 6842; 1987. It provides guidance to those who manufacture vibrating tools as to how vibration likely to cause injury should be measured. The assessment of vibration exposure is primarily based on the measurement of daily exposure. To facilitate comparisons between different durations of exposure to different tools with different vibration speeds, the daily exposure is expressed in terms of the 8 hour energy equivalent frequency weighted acceleration: A8. This is set out at Table 5 of the document which for ease of reference I have set out below. It shows that where 100 people are exposed daily to vibrations of an acceleration magnitude of 2.8m/s2, 10 of them are likely to suffer symptoms within 8 years. Where the acceleration magnitude is half that ie 1.4m/s2 the period of exposure after which 10% are likely to have symptoms is 16 years. The effect is linear and cumulative thus where the daily exposure (A8) is 15 minutes then the level of acceleration magnitude which would be likely to produce symptoms in 10% of those using the tools after 8 years is 16m/s2. After 16 years the figure is 8.0m/s2. Three notes precede the table. These are:-

    Note 1 : The values presented in table 5 are based on exposures which are regularly repeated on a daily basis

    Note 2 : If, for a specific daily exposure duration and life-time exposure, the acceleration is in excess of that required to produce 10% prevalence, a higher incidence of symptoms may be expected. There will be a complex relationship between vibration exposure and prevalence of symptoms. When the vibration exposure is high (eg after many years of exposure)...

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