Rail Report – The Ongoing Duty of Care to Conduct Suitable Risk Assessments

A number of recent cases some involving TOC’s have highlighted the need for employers to prevent or adequately control identified risk of injury to their workforce.  Central to this process is the need to conduct a suitable risk assessment.

 

In Allison –v- London Underground 2008 [Court of Appeal] the Claimant had been employed by London Underground as a tube train driver.  She  developed tenosynovitis and it was accepted that her injury was due to the prolonged use of a traction brake controller.  The design feature had been introduced at the suggestion of two experienced train drivers but had not been the subject of any specific ergonomic assessment at that stage.  The Claimant’s injury arose because she had received no special instructions as to how to correctly position her thumb in relation to the Chamfered end of the brake controller.  Liability was therefore established under the Provision and Use of Work Equipment Regulations 1998 because the employer had failed to carry out a suitable and sufficient risk assessment which would have identified the need for an ergonomic opinion to identify the need for drivers to be trained in the best way to hold the brake controller, to minimise the risk of injury. 

 

In Thomas, Rogan and Studholme –v- Arriva Trains Wales Ltd November 2009 3 train drivers successfully recovered damages after contracting carpal tunnel syndrome whilst driving a range of diesel units, mostly class 142, 143, 150 and 153. The Court accepted that the HSE guide “Upper Limb Disorders in the Workplace 2002” provided relevant guidance upon posture and repetition where a task involved repeating the same movements every few seconds or using the hands, wrists and fingers intensively for 2 hours consecutively.  A job is regarded as highly repetitive where the cycle time is less than 30 seconds.  If so, a full risk assessment is required into the factors of repetition and working posture.  On the evidence accepted by the Court, drivers were operating the controls every 17 seconds or so with the left hand and about 20 seconds with the right hand in a typical 1 hour 90 minute journey.

 

The Court accepted that the CTS was on the balance of probabilities caused by the work and breach of duty was established under the Provision and Use of Work Equipment Regulations.  It was found that the Defendants had failed to assess the ergonomic risks to the drivers, specifically, from upper limb disorders from driving the trains.  If such an assessment had been carried out it would have alerted them to the fact that the ergonomic set up of the cab of the older trains was such that there was a risk that drivers might adopt a driving style which gave rise to a risk of ULD.  The fact that the units had certification by the Vehicle Acceptance Body when they entered service was an insufficient defence as that did not take into account the risk of upper limb disorders from poor posture.

 

Likewise the Railway Group Standard of 1995 entitled “Requirements for Driving Cabs of Railway Vehicles”  published by the Safety and Standards Directorate of Railtrack PLC was not a sufficient defence.

 

A risk assessment carried out by the Defendants in 2007 was not a defence given that it only considered the risk of strain and upper limb injuries from manual handling and not driving.  A further point to note is that the manager had only attended a NEBOSH course and accepted that he had not had training specifically in the assessment of the risk of upper limb disorders.

 

It was held that if an adequate and suitable risk assessment had been carried out it would have informed the employer that there was a risk that was caused or materially contributed to by poor seats and inadequate arm rests.  The equipment was therefore unsuitable within the PUWER 1998 and it was foreseeable that it might have contributed to the injury to the drivers’ health. 

 

In Threlfall –v- Hull City Council 2010 [Court of Appeal] the Claimant was employed by the Council when he sustained a serious cut to his left hand whilst cleaning debris from the garden of a Council property.  The scenario could equally apply to any maintenance shed, trackside environment or to station cleaners for example.  He alleged that his employers were in breach of the Personal Protective Equipment at Work Regulations 1992 because they had failed to provide him with suitable protective gloves.  The Regulations require that before choosing any personal protective equipment the employer is required to ensure that an assessment is made to determine whether the PPE he intends to provide is suitable. The employer must follow the checklist at Regulation 6 to see how to assess the risks before deciding upon the suitability of the equipment provided.   The gloves were similar to general gardening gloves and were not designed to prevent lacerations.  The gloves had not been effective because the manufacturer’s description stated that they were suitable only for minimal risks and the risk of laceration to the Claimant was more serious than that.  Therefore if the risk assessment had been properly carried out the employer would have recognised that specific risk which would have highlighted the need to consider the suitability of the protective gloves.

 

These cases clearly demonstrate how risk assessments underpin health and safety in the workplace.  Indeed it was stated in Threlfall that “the modern requirement is that the employer should take positive thought for the risks arising from his operations”.  Therefore reliance upon a general industry standard or manufacturer’s guidance may not be sufficient to discharge the employer’s duty of care under these onerous regulations.  There is an ongoing duty of care to conduct risk assessments which are compliant with the regulations.  The assessment should be carried out by properly qualified staff who are alive to the specific risks arising from all operating conditions and identified risks of injury. 

 

Chris Price 
Partner

You can speak to Chris by calling 01904 683032 or send him an email.