Allison v London Underground Ltd

Factual and Procedural Background

This appeal arises from a decision of His Honour Judge Cowell in the Central London County Court dated 25 January 2007 concerning the interpretation of Regulation 9 of the Provision and Use of Work Equipment Regulations 1998 (the 1998 Regulations). The key question was whether the duty imposed by Regulation 9 is absolute or qualified by fault or foreseeability.

The appellant, an employee of Company A since 1996, initially worked as a guard and later trained as a driver on various lines of the underground railway system. She developed a shoulder strain linked to the use of a traction brake controller (TBC), a device operated by the driver to control the train. Despite treatment and transfer to a line with more modern equipment, she later developed tenosynovitis in her right hand and wrist caused by the manner in which she held the TBC handle, specifically resting her thumb on a chamfered end of the handle. She became unfit for work as a driver.

The TBC handle on the relevant line was designed with input from experienced drivers but without expert ergonomic advice regarding the chamfered end. The appellant's training did not include specific instruction on how to hold the handle to avoid strain injury. Company A introduced updated training only after the appellant’s injury became apparent.

The appellant claimed that Company A breached its duties under Regulations 3, 4, and 9 of relevant health and safety regulations, focusing primarily on the adequacy of training and risk assessment related to the TBC. The County Court judge held that the duty under Regulation 9 was not absolute but required training to be "adequate in all the circumstances," including consideration of foreseeability. The judge found no breach of Regulation 4 and held that the training was adequate based on the risks Company A had actually foreseen. The judge rejected claims of contributory negligence by the appellant.

The appeal challenges the judge’s interpretation of Regulation 9, arguing that the duty to provide adequate training is strict or absolute and that the judge applied an incorrect test for adequacy.

Legal Issues Presented

1. Whether the duty imposed by Regulation 9 of the 1998 Regulations to provide adequate training is absolute (strict/no-fault) or qualified by fault or foreseeability.
2. If the duty is not absolute, what is the correct legal test for determining the adequacy of training under Regulation 9?
3. Whether Company A breached Regulation 9 by failing to provide training on the proper use of the TBC handle, including the risks associated with resting the thumb on the chamfered end.
4. Whether Company A ought to have consulted an ergonomist in assessing risks related to the TBC handle design and use.

Arguments of the Parties

Appellant's Arguments

• The duty under Regulation 9 is strict or absolute and not dependent on proof of fault or foreseeability.
• The word "ensure" imposes a mandatory duty to provide adequate training, meaning training sufficient to prevent injury regardless of the employer’s knowledge of risks.
• The judge erred by applying a test of adequacy based on what the employer knew or ought to have known rather than the actual adequacy of training.
• Company A failed to provide training instructing drivers not to rest their thumbs on the chamfered end, directly causing the appellant's injury.
• Company A should have consulted an ergonomist regarding the TBC handle design and training needs; failure to do so breached the duty under Regulation 9.

Respondent's Arguments

• Regulation 9 does not impose strict or absolute liability; liability depends on fault or foreseeability.
• Absolute liability is rare and requires clear wording, which is absent from Regulation 9.
• The 1998 Regulations must be read in light of the relevant European Directives, which do not impose absolute liability on employers.
• Precedents cited by the appellant (e.g., Dugmore and Stark) are distinguishable and do not support absolute liability under Regulation 9.
• The judge applied the correct test, finding the training adequate based on the risks Company A had actually foreseen.
• The appellant’s challenge to the sufficiency and suitability of the risk assessment was not properly before the court and does not affect the Regulation 9 duty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689	Interpretation of "adequate control" under COSHH regulations as imposing a strict duty requiring employers to discover risks and take precautions.	The court acknowledged Dugmore’s distinction between common law negligence and stricter regulatory duties but held it did not establish absolute liability under Regulation 9 of the 1998 Regulations.
Stark v Post Office [2000] ICR 1013	Regulation 6(1) of Provision and Use of Work Equipment Regulations 1992 imposes an absolute duty to ensure equipment is maintained in efficient working order.	The court held that while Stark established no-fault liability for equipment maintenance, it did not extend to the duty to provide adequate training under Regulation 9.

Court's Reasoning and Analysis

The court began by clarifying terminology, distinguishing between strict liability (liability without excuse for failure to meet a standard, but still dependent on foreseeability) and absolute or no-fault liability (liability even if all possible care was taken). It concluded that Regulation 9 imposes a mandatory duty to provide adequate training but does not impose absolute or no-fault liability.

The court analyzed the relevant European Directives underpinning the 1998 Regulations, noting that while the Directives require employers to "ensure" adequate training, they do not mandate absolute liability. The Directives aim to promote improvement in health and safety without guaranteeing perfection.

The court rejected the appellant’s submission that adequacy should be judged solely by the outcome (i.e., whether the injury could have been prevented by different training), instead holding that the adequacy of training must be assessed by reference to what the employer ought to have known about the risks. This incorporates a duty on the employer to investigate risks, including by consulting experts such as ergonomists where appropriate.

The court found that Company A failed to seek ergonomic advice regarding the chamfered end of the TBC handle, a design feature introduced without expert input. The evidence showed that an ergonomist would have identified the risk of strain injury and advised on appropriate training, including instructing drivers not to rest their thumbs on the chamfered end.

The court held that Company A breached Regulation 9 by failing to provide adequate training informed by a proper risk assessment. The judge below had applied a test akin to common law negligence, focusing on what was actually foreseen, which was insufficient under the statutory duty. The appeal was therefore allowed.

Holding and Implications

The appeal is ALLOWED.

The court held that the duty under Regulation 9 of the 1998 Regulations to provide adequate training is mandatory but not absolute or no-fault. Adequacy must be judged by reference to what the employer ought to have known about the risks after conducting a suitable and sufficient risk assessment, which may require expert advice.

Company A breached its duty by failing to seek ergonomic advice concerning the design and use of the TBC handle, resulting in inadequate training and consequent injury to the appellant. The case was remitted for assessment of damages.

No new precedent was established beyond clarifying that Regulation 9 requires a proactive duty to investigate risks and provide training accordingly, rather than liability based solely on the occurrence of injury.