ALISON DUGMORE v SWANSEA NHS TRUST -and MORRISTON NHS TRUST [2002] EWCA Civ 1689

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR JUDGE MASTERMAN)
[2002] EWCA Civ 1689Case No Case No: B3/2002/0827Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
ALISON DUGMOREAppellantSWANSEA NHS TRUST -and MORRISTON NHS TRUSTRespondents
Before
Lord Justice TuckeyLady Justice HaleSir Denis HenryPhilip Marshall (instructed by Messrs Thompsons Solicitors) for the AppellantStephen Shaw (instructed by Messrs Morgan Lewis Mayers Solicitors) for the RespondentsDate 21 November 2002
[1]This is the judgment of the court given by Lady Justice Hale:- The claimant appeals against the order of His Honour Judge Masterman, made on 11 April 2002 in the Cardiff county court, dismissing her claim for damages for the consequences of a latex allergy caused by wearing powdered latex gloves during her employment as a nurse. The claim was framed both in negligence and under the Control of Substances Hazardous to Health ('COSHH') Regulations 1988 and 1994. It raises an issue of some practical importance, not only for nurses, as to the correct interpretation of those regulations and the extent of the duty they impose.[2]The claimant is now aged 34. She is atopic, having suffered from eczema and asthma since she was a baby. She has worked in health care since leaving school at 16. From about 1990 until December 1996 she was employed as a nurse at Singleton Hospital, Sketty, Swansea ('Singleton'). and from January 1997 in the Intensive Therapy Unit (ITU) at Morriston Hospital, Morriston, Swansea ('Morriston'). During her time at Singleton she developed a Type I allergy to latex protein as a result of using powdered latex gloves in the course of her work. Her own case was that that had happened around July 1993, and the judge found that it had certainly done so by 1994 or 1995. In June 1996 she suffered such a serious reaction while performing a procedure using latex gloves that she attended the Accident and Emergency Department and was off work for three days. Following her return she was supplied with vinyl gloves instead. When she moved to Morriston, she told the occupational health department of her allergy and was supplied with vinyl gloves there as well. However, the extent of her sensitivity was such that, on 18 December 1997, when picking up an empty box which had contained latex gloves, she suffered an anaphylactic attack and has not been able to return to her work as a nurse since then.[3]There were many issues at trial but on this appeal three remain.(1) What is to be taken as Singleton's date of knowledge of the risk that wearing latex gloves could cause sensitisation for the purposes of liability in negligence?(2) What is the extent of an employer's duty under the COSHH regulations and in particular to what extent is their knowledge of the risk relevant to that duty?(3) Was Morriston in breach of duty in failing to ensure that the claimant was not exposed to latex in the ITU? Date of Knowledge[4]The judge held that 'the date from which both the first and the second defendants ought to have been aware of the risk that latex gloves could sensitise their employees and give rise to skin problems, asthma and even anaphylaxis, was 1 January 1997' (para 58). In April 1996, the Medical Devices Agency had issued a Bulletin, Latex Sensitisation in the Health Care Setting (Use of Latex Gloves) . Its conclusions were that 'latex sensitisation has been recognised for many years but there has been an increase in the number of cases identified in recent years'; increased exposure to latex devices might be the leading cause of this increase; both individuals and organisations needed to be aware of latex sensitisation/allergy and take appropriate measures; and a policy should be implemented within any health care establishment, among other things, to disseminate information, encourage staff to seek guidance, make adequate occupational health facilities for staff, and provide alternatives to latex based devices as necessary. The evidence of Dr White, consultant dermatologist at St John's Institute of Dermatology, was that this bulletin was the appropriate starting point. Latex allergy had been recognised as a problem in some countries in the late 1980s and early 1990s. He and colleagues had therefore been looking for cases in the UK but not finding them. Increasing recognition during the 1990s had led to the 1996 bulletin. He would expect health service employers to look to the MDA for guidance. Following the bulletin it would take some months to put the policy in place. In addition to this evidence, the judge referred to the fact that the MDA itself had not issued mandatory advice until 1998, that the Royal College of Nursing did not produce a report about it until 1999, and the Health and Safety Executive only circulated a leaflet in 2000. This all tended to support Dr White's view that 'there was no authoritative guidance based on sufficient research in the UK until April 1996 at the earliest.' (para 54)[5]The problem for the claimant is that her latex protein hypersensitivity developed in 1993 to 1994. Once sensitised, the damage is done and there is no de-sensitising procedure. It is, in Dr White's words, 'like falling off Beachy Head.' Although a later date of knowledge may help in some aspects of her claim, in particular against Morriston, the allergy which has meant that she has had to give up the career she loved was caused much earlier.[6]In challenging the judge's conclusion on her behalf, Mr Philip Marshall recognises that he has a difficult task. He does not challenge the judge's preference for the views of the defendants' expert, Dr White, over the views of the claimant's expert, Mr Finch. Mr Finch is a chemist by training who has worked for Her Majesty's Inspectorate of Factories. He had amassed a large body of published material attesting to a developing problem in the United States and elsewhere, and a campaign run by the Nursing Times in 1994 - 1995, and considered that dermatologists in the health service who could be expected to be familiar with this literature should have alerted managers to the risk and action should have been taken in 1992 or 1993. But Mr Marshall relies upon the evidence given by Dr White himself, arguing that the judge was selective in his use of it.[7]He relies in particular upon the following passage at the beginning of his cross examination:
"Q. As far as latex specifically is concerned, for how many years have you held the view that there is no justification for the continued use of powdered latex gloves? A. Personally, since the early 1990s. Q. Thank you. And you arrived at that view based on your experiences as a dermatologist and what you had read in the peer review articles. Is that right? A. That would be correct. Q. Thank you. And of the peer review articles that I am referring to, I mean the kind of article which dermatologists in most large hospitals in England and Wales would have access to in their libraries. A. The dermatologists? Q. Yes. A. Yes and in other journals as well, because a considerable amount of information - this is only a partial review here - has not been provided as evidence."
[8]One can easily understand that at this point Mr Marshall must have felt that his cross-examination was going very well. Dr White had himself urged his view on the MDA when they were consulting on the matter in 1995 although they did not accept it. The cross examination went on:
"Q. Even though there may have been a glove in 1993 which was a high quality glove, the fact it has latex proteins means that you simply cannot exclude the risk, can you, by a good quality glove, of someone becoming allergic to latex. A. No. You minimise . . . Q. It is reduced. A. You minimise the risk, yes. You reduce it. Q. And anyone reading the articles which are pre-1993, which are in that bundle, any dermatologist reading those articles would be driven to the conclusion that there is a risk - I am not interested in quantifying it for the moment at all - but would be driven to the conclusion that there is a risk that a woman, who is atopic working in the health care centre, is certainly at risk of developing a latex type I allergy. A. That is a fair comment."
As to when dermatologists might have been expected to have read the literature, Dr White, speaking of the incident in June 1996, said this in re-examination:
" . . . I would suggest, and I use a very general term here, that a majority of UK dermatologists would have been aware of the problem at that time. That is not the same as saying they had a personal hands-on experience of patients with it, but would certainly be aware of latex protein hypersensitivity as a phenomenon."
[9]The test, of course, is that laid down in the oft-quoted words of Swanwick J in Stokes v Guest Keen and Nettlefold (Nuts and Bolts) Ltd [1968] 1 WLR 1776 at 1783 (quoted with approval by this Court, for example, in Heyes v Pilkington Glass Ltd [1995] PIQR P303 at P308-9):
" . . . the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; . . . where there is developing knowledge he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks he may be thereby obliged to take more than the average or standard precautions . . . "
A health care employer may very well actually have, let alone be expected to have, greater than average knowledge of particular risks to which his employees are exposed. Furthermore, at pp 1788-9, Swanwick J said this:
" . . . [the Ministry of Labour and the Factory Inspectorate] had not yet issued any notices or pamphlets or leaflets about skin cancer of the scrotum. I do not, however, attach great importance to Ministry inaction; . . . The good employer does not merely sit back and wait for official action or regulations."
[10]There is a case for putting Singleton's date of knowledge rather earlier than January 1997. There is evidence that staff at Singleton knew very well of the risks resulting from allergy to latex gloves in June 1996 when the claimant suffered her first severe reaction. The records gave the cause of her condition as 'probably from latex gloves' and under remarks stated 'allergy to latex gloves. Given piriton/cream. Needs to avoid using these. To see occupational health.' The claimant's evidence was that on her return to work after the incident, she was advised by the occupational health nurse that 'because I had reacted so badly this time, and as this type of allergy gets worse every time a person comes into contact with it, then the next time I could in fact develop an anaphylactic shock.' The defendants rely on this piece of evidence for another purpose (see para 29 below) so they cannot have it both ways.[11]But it is one thing to know of the existence of the allergy and its effects. It is another thing to know that exposure to the gloves can produce the allergy in particularly vulnerable people. The claimant had to show that a reasonably prudent health care employer ought to have known this before the date when she developed the allergy which on her case was in 1993. For this there is only the world literature which led Dr White to form his personal opinion, of which he was unable to persuade the MDA, set against the lack of evidence then that the gloves used in this country were causing a problem. Even accepting, therefore, that health care employers are in a different position from others, and that they may well be expected to take action before any official guidance is offered, it would nevertheless have been difficult on the evidence before the judge for him to conclude that this employer should have known earlier than 1996 that this was a risk against which they should take action for the purposes of the law of negligence. The COSHH Regulations[12]The Regulations in force in 1993 were the 1988 Regulations (SI 1988/1657), which were replaced in January 1995 by the 1994 Regulations (SI 1994/3246), since replaced by the 1999 Regulations (SI 1999/437).

(e) of the definition in reg 2(1):

"a substance, not being a substance mentioned in subparagraphs (a) to (d) above, which creates a hazard to the health of any person which is comparable with the hazards created by the substances mentioned in those sub-paragraphs."
We are not therefore directly concerned with whether the creation of a hazard to health has to be foreseeable for the purpose of this definition; Lord Nimmo Smith in Williams v Farne Salmon & Trout Ltd [1998] SLT 1329, discussed at para 21 below, decided that it did not. We are concerned with reg 7(1), which was the same in both 1988 and 1994:
"Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled."
'Adequate' was defined in the same way in 1988, reg 7(7) and 1994, reg 7(11):
"In this regulation 'adequate' means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and 'adequately' shall be construed accordingly."
[13]The judge held that it was not practicable to prevent all exposure to latex in the hospital environment. It is used in a wide variety of equipment apart from gloves. Mr Finch had argued that a risk assessment under reg 6 should have been carried out, but it was hard to see how that would have revealed the danger. Having regard to the lack of apparent risk posed by powdered latex gloves and airborne latex particles, he concluded that providing vinyl gloves to the claimant should be construed as adequate control (para 66).[14]This does not quite address the claimant's simple and clear argument on the construction of reg 7. Many legislative provisions imposing duties upon employers to protect the health and safety of their employees impose strict liabilities different in kind from their duties at common law. Regulation 7(1) uses the language of strict liability in providing that an employer 'shall ensure' that exposure is either prevented or controlled. The primary duty is to prevent exposure altogether, unless this is not reasonably practicable. 'This' must refer to 'prevented' rather than both limbs of the duty. Where prevention is not reasonably practicable, the secondary duty is adequately to control the exposure. Adequately is restrictively defined, the only relevant factors being the nature of the substance and the nature and degree of exposure generally. Nowhere is there any reference to the reasonable foreseeability of the risk. Nor is the duty dependent upon what a risk assessment would have revealed. It is therefore irrelevant whether or not a reg. 6 assessment would have revealed it.[15]The relevance of the common law concept of foreseeability in legislative provisions such as these has been the subject of a number of decisions, some going one way and some going the other. Much will depend upon the precise wording of the provision in question. We have been referred in particular to three decisions of this court, one concerned with the nature of the underlying duty and two others with the practicability of precautions.[16]Larner v British Steel plc [1993] ICR 551, concerned the duty in s 29(1) of the Factories Act 1961 that 'every place at which any person has at any time to work . . . shall, so far as is reasonably practicable, be made and kept safe for any person working there.' This court held that the claimant did not have to prove that the danger which had made his place of work unsafe was reasonably foreseeable. Hirst LJ was prepared (at 560C) to hold that the test of safety was a strict one. Agreeing, Peter Gibson J, as he then was, observed (at 562A) that the words of section 29(1) "contain no express reference to foreseeability, reasonable or otherwise. 'Safe' is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on the word." It was therefore for the employer to plead and to prove that all reasonably practicable precautions had been taken to make it safe. Both members of the court pointed out that if the defendant's contention were correct, there would be little if any distinction between the common law duty of care and the duty under the statute. The Inner House of the Court of Session reached the same conclusion for essentially the same reasons in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544. Neither decision was directly concerned with how foreseeability of risk might come into the question of what it was reasonably practicable for the employer to do.[17]Adsett v K & L Steelfounders & Engineers Ltd [1953] 2 All ER 320 and Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 All ER 205 were concerned with what was 'practicable' to protect employees against inhaling dust for the purposes of the duty under s 47(1) of the Factories Act 1937. Both held that a measure which had not yet been invented was not practicable for this purpose. In Richards (at 210) Sir Raymond Evershed MR stated that "the measures taken must be possible in the light of current knowledge and according to known means and resources . . . the fact that at some later date some method of protection has been discovered which was not dreamed of at the date of the alleged breach . . . will not suffice."[18]That deals with the factual practicability of precautions at the time. But there are also dicta to the effect that foreseeability of risk may be relevant to deciding what is practicable for the purpose of such defences. The dictum of Veale J in Jayne v National Coal Board [1963] 2 All ER 220, at 224, is often quoted:
"It is, I would have thought, clearly impracticable to take precautions against a danger which could not be known to be in existence, or to take a precautions which has not yet been invented."
To like effect are the dicta of Lord Sutherland in the Inner House in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544, at 549, concerning s 29(1) of the Factories Act 1961:
"If [the employers] can establish that no risk or danger could reasonably have been foreseen from the state of the working place, then it might well be arguable that there were no reasonably practicable precautions which they could have taken to prevent the emergence of such risk. That, however, would be a matter for the defenders to raise within the context of reasonable practicability, but it would not in any way impose an onus on the pursuer to establish that the risk of injury was something which was foreseeable from the state of the working place as it was immediately before the accident."
[19]A small part of the judgment of Simon Brown J (as he then was) in Knox v Cammell Laird Shipbuilders Ltd (30 th July 1990, unreported) concerned the duty in Regulation 18(a) of the Shipbuilding Regulations 1931 that 'adequate ventilation to secure the removal of injurious fumes or gas shall be provided . . . ' where various processes were being carried on in an enclosed or confined space. Simon Brown J had already held that the fumes given off during certain processes were injurious. As a matter of fact they were not adequately controlled. He observed (at 83) that 'In those circumstances the defendants' duty may be thought to have arisen irrespective of their having acquired, actually or constructively, any knowledge of the danger'. However, the claimants had conceded that the defendants must actually have had or had imputed to them some recognition of the risk. Dicta of two members of the Court of Appeal in Ebbs v James Whitson & Co Ltd (1952) 2 QB 877 had been superseded by those of Bagnall J in Wallhead v Ruston & Hornsby Ltd (1973) 14 KIR 285, Boreham J in Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702, and Rose J in Morrison v Central Electricity Generating Board (unreported, 15 March 1986). Simon Brown J concluded that 'I am satisfied that the plaintiffs are right to recognise that some degree of risk is likewise pre-supposed by the concept of "adequate" ventilation to remove "injurious fumes" within regulation 18.'[20]None of these decisions was concerned with the COSHH Regulations. Two decisions of Lord Nimmo Smith in the Outer House of the Court of Session are more directly in point. In Bilton v Fastnet Highlands Ltd 1998 SLT 1323, he applied what we would call the Larner v British Steel approach to regulation 7:
". . .the pursuer does not require to do more than aver, as she has done, that she has suffered loss, injury and damage as a result of exposure to certain substances in the course of her employment, that these are substances falling within the ambit of the 1988 Regulations, and that her loss, injury and damage were caused by the defenders' breach of the duties incumbent upon them in terms of these regulations. Regulation 7(1), which is perhaps the most important provisions for present purposes, is comparable with the provisions of s 29(1) of the Factories Act in respect that it imposes an absolute duty, subject to a defence of reasonable practicability."
[21]In Williams v Farne Salmon & Trout Ltd 1998 SLT 1329 the pursuer alleged that he had developed occupational asthma as a result of exposure to micro-organisms in salmon. The question raised was whether on a proper construction of the COSHH Regulations employers were only bound to comply with them to the extent that they knew or ought reasonably to foresee that a substance to which an employee was exposed was a substance hazardous to health. The judge noted (at 1332F) that the definition was "couched in factual terms which are unqualified by the existence of any state of knowledge or reasonable foreseeability . . . I see no difference, for present purposes, between a substance being in fact hazardous to health and a place being unsafe, and in my opinion the 1988 Regulations impose the same kind of absolute duty as is imposed by s 29(1). A number of other provisions in the regulations reinforce me in this view . . . The absolute nature of this duty is, in my view, made abundantly clear by the provisions of reg 7(1), which uses the word 'ensure' in connection with the employer's duties, subject to a limited defence of reasonable practicability in respect of the duty to prevent the exposure of his employees to substances hazardous to health. The risk assessment provisions of reg 6(1), the monitoring provisions of reg 10(1) and (3), the surveillance provisions of reg 11(1) and the information, instruction and training provisions of reg 12(1) all seem to me to presuppose the actual or potential existence of an objectively verifiable state of affairs, and to place the onus on the employer to discover this, the better to ensure compliance with his absolute duty to protect his employees from exposure to substances hazardous to health"[22]In our view, that analysis is correct. The duty in regulation 7(1) is an absolute one: to ensure that exposure is prevented or controlled. Mr Shaw, for the hospitals, sought to persuade us that the words 'so far as is reasonably practicable' should be moved from their current position qualifying the duty to prevent exposure so as to qualify the duty to ensure that exposure is either prevented or controlled. There is no warrant for us to rewrite the regulation in this way. Its wording is even stricter than that in s 29(1) of the Factories Act 1961, where the phrase 'so far as is reasonably practicable' came between 'shall' and 'be made and kept safe'. If that was an absolute duty, then so must this be.[23]Furthermore, the defence of reasonable practicability qualifies only the duty of total prevention. Mr Marshall argues that this is a straightforward factual matter. All latex could be removed from the hospital environment. We have more difficulty with this. Irrespective of whether foreseeability of the degree of risk and the magnitude of risk comes into the equation in deciding what is reasonably practicable, latex is so commonly used in so many products that its total elimination can scarcely be thought practicable. The Judge was entitled to accept the evidence of Dr White on this point.[24]But that does not end the matter. Until the claimant became sensitised to latex protein, the substance hazardous to her health was contained in the powdered latex gloves. As Mr Marshall points out, it would have been a simple matter to replace those gloves with vinyl gloves: this was not rocket science waiting to be invented. It was for the hospital to prove that it was not reasonably practicable for them to do this. With a simple step like this questions of the degree and magnitude of the risk do not arise. But even if they did, the onus was on the employer to go out and find out about them: in this particular case, to say that they could not have done so is contrary to the evidence of Dr White and Mr Finch. The material was there from which an employer with the absolute duty of preventing exposure to health hazards could have discovered what needed to be done. To import into the defence of reasonable practicability the same approach to foreseeability of risk as is contained in the common law of negligence would be to reduce the absolute duty to something much closer to the common law, albeit with a different burden of proof.[25]If we are wrong about that, there is still the question of whether the claimant's exposure was adequately controlled. With greatest of respect to Simon Brown J, for the purpose of this regulation at least, it seems to us that his first impression is to be preferred to his later acceptance of the plaintiffs' concession. Here, the duty is to ensure that exposure is adequately controlled. 'Adequately' is defined in regulation 7 without any reference to reasonableness or the foreseeability of risk: it is a purely practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else. It cannot be adequate control to oblige an employee frequently to wear powdered latex gloves when other barriers are available.[26]These regulations implement European Directives, in particular Council Directive 80/1107/EEC and 88/364/EEC. Neither of these directives has anything to say about the civil liability of employers towards their employees, nor do they impose obligations directly comparable to regulation 7. Their purpose is expressly preventive. According to the 1980 preamble, the measures taken by Member States to protect workers from the risks related to exposure to chemical, physical and biological agents at work were to be approximated and improved; that protection 'should so far as possible be ensured by measures to prevent exposure or keep it at as low a level as is reasonably practicable'; the sorts of measures involved are limiting or even banning the use of certain agents, suitable working procedures and methods, hygiene, information and warnings for workers, surveillance of their health, keeping updated records of exposure and medical records.[27]This all reinforces the view taken by Lord Nimmo Smith that the purpose of the regulations is protective and preventive: they do not rely simply on criminal sanctions or civil liability after the event to induce good practice. They involve positive obligations to seek out the risks and take precautions against them. It is by no means incompatible with their purpose that an employer who fails to discover a risk or rates it so low that he takes no precautions against it should nevertheless be liable to the employee who suffers as a result.[28]We would therefore allow the claimant's appeal on this point and give judgment against Singleton for their breach of regulation 7(1). Morriston's liability[29]By the time that the claimant got to Morriston, she had already been sensitised. She was provided with vinyl gloves, but she had already fallen off Beachy Head. Her evidence was that she had been told of the risks of wearing latex gloves by the occupational health nurse at Singleton. It is not clear, however, that she was warned of the wider risks of simply being in an environment where latex was used. The 1996 Guidance does not deal with this. Within less than twelve months she suffered an anaphylactic attack simply from touching an empty glove box. Attempts to find work for her in a sufficiently latex free environment have failed.[30]The judge found that the hospital could not have done more for the claimant than carry out blood tests to confirm the diagnosis, issue her with vinyl gloves, and advise her to transfer to as latex free an environment as possible. There is no duty at common law to sack an employee with a particular sensitivity who wants to take the risk of carrying on working in what is for others a reasonably safe environment: see Withers v Perry Chain Co [1961] 1 WLR 1314 . The judge concluded that the claimant was so anxious to continue her nursing career that even if the problem had been better recognised the probability was that she would still have been working in the ITU in December 1997. That last finding is a finding of primary fact based expressly upon the judge's impression of the claimant in the witness box. It is fatal to a finding of liability in negligence. If no amount of warning would have kept the claimant away until she actually suffered her attack, then the failure to warn her cannot have caused it to happen.[31]The judge did not deal with Morriston's liability under the regulations. This is a more difficult question. Total prevention of exposure, for the reasons already given, was not reasonably practicable. It is difficult to say that the exposure was adequately controlled in the circumstances, because there were other less latex laden environments to which she might have been transferred, however unwillingly. The regulations may impose a stricter duty on employers even if the employee is willing to take the risk and may be prejudiced by compliance. The difficulty as we understand it is that the risk of an anaphylactic attack would have remained wherever she had been. In the circumstances, it seems to us difficult to hold that any breach of the regulations was causative of her attack.[32]We would therefore dismiss the claimant's appeal against Morriston. They would in any event only be liable for the pain and suffering arising out of that attack. All the claimant's damage flowed from the sensitisation for which Singleton are responsible. We would allow the appeal against them.

ORDER

The appellants' appeal against the first respondent is allowed, but her appeal again the second respondent is dismissed. The first respondent shall pay all the costs of the appellant's action against it both here and below. The second respondent shall recover its costs of the action against it and the costs order below in relation to the second defendant is undisturbed. The first respondent's application to appeal to the House of Lords is refused. (Order does not form part of the approved judgment)

Cited in 4 later judgments