Naylor v Volex Wiring Group Plc

Factual and Procedural Background

This opinion concerns a defendant's application for permission to appeal against an order made by His Honour Judge Appleton on 1 November 2001 in the Manchester County Court sitting in Preston. The judge had given judgment for the claimant for over £42,000 plus costs. The defendant also applied for a stay of execution, which was understood to be agreed if permission to appeal was granted, and for permission to rely on further evidence.

The underlying claim involved the claimant alleging that she developed asthma due to exposure to colophony while performing soldering work for her employer. Colophony is a substance regulated under the Control of Substances Hazardous to Health Regulations 1994 and is known to cause asthma. The employer had implemented exhaust ventilation at regular soldering stations but not at repair benches where occasional soldering was required.

The claimant developed asthma in 1997, with symptoms severe enough by October to require hospital admission. A dispute arose regarding the medical evidence, particularly whether the claimant’s wheezing began before or after April 1997, and whether exposure to colophony continued through the summer of 1997. The claimant asserted ongoing exposure from April to October 1997 while covering for a colleague, which the defendant disputed, arguing the colleague did not move sections until 1998 and pointing to medical notes suggesting wheezing predated April 1997.

Legal Issues Presented

1. Whether the degree of foreseeability of risk is relevant to an allegation of breach of regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1994;
2. Whether the claimant's exposure to colophony continued during the summer of 1997;
3. When the claimant's wheezing symptoms began, particularly in relation to the timing of exposure.

Arguments of the Parties

Defendant's Arguments

• The defendant contended that the degree of risk from the claimant’s level of exposure was so small or non-existent that it was not reasonably practicable to prevent the exposure, challenging the interpretation of regulation 7(1).
• The defendant argued that exposure could not be entirely prevented in practice but was controlled at regular soldering stations and later at repair benches.
• They disputed the claimant’s assertion of continued exposure during the summer of 1997, contending the colleague had not moved sections until 1998.
• They relied on medical notes suggesting wheezing had started before April 1997, undermining the claimant’s causation evidence.
• The defendant sought to adduce further evidence, including additional wage slips, to support their factual contentions.

Claimant's Arguments

• The claimant asserted that exposure to colophony occurred from April 1997 and continued through the summer while filling in for a colleague, causing the development of asthma.
• She relied on oral evidence regarding the timing of symptoms and exposure, which the trial judge accepted over some documentary evidence presented by the defendant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the defendant’s principal point of law regarding whether foreseeability of risk is relevant to determining breach of regulation 7(1) of the 1994 Regulations, which requires employers to prevent or adequately control exposure to hazardous substances where reasonably practicable. The judge had held that once a hazardous substance is identified and practicable precautions exist, the duty is clear and foreseeability of risk is not a relevant factor. The court acknowledged that this was not a straightforward issue and that other statutory provisions have been interpreted differently, with foreseeability playing a role in some contexts. As this regulation had not been previously considered by reported cases, the court found it appropriate to grant permission to appeal on this legal point.

Regarding the factual disputes about the timing and extent of exposure and onset of symptoms, the court recognized these as matters primarily for the trial judge’s assessment of oral evidence. Nonetheless, since the appeal would proceed on the legal point, permission was also granted on the factual grounds to allow a full review.

The court refrained from expressing views on the evidence from the Health and Safety Officer, noting the trial judge did not explicitly reference it, making its influence unclear.

The application to admit further evidence (additional wage slips) was deferred for consideration by the full court, with no prejudice expressed at this stage.

Holding and Implications

The court granted permission to appeal on all three grounds raised by the defendant, including the principal legal issue concerning the relevance of foreseeability to breach of regulation 7(1), and the factual issues related to exposure and symptom onset.

Permission to appeal was granted.

The stay of execution was understood to be agreed if permission was granted. The decision allows the defendant to challenge the trial judge’s findings and legal conclusions in a full appeal hearing. No new precedent was established at this stage; the court merely allowed the appeal to proceed to address unresolved legal and factual questions.