Arriva Trains Northern Ltd v Eaglen [2008] EWCA Civ 352

[2008] EWCA Civ 352Case No B3/2007/1820
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE LEEDS COUNTY COURT
HH JUDGE BELCHER
LOWER COURT NO: 6LS51862
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/04/2008
Before
LORD JUSTICE RIXLORD JUSTICE LONGMORELORD JUSTICE WILSON
Between
ARRIVA TRAINS NORTHERN LTDAppellantDAVID EAGLENRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Stephen J Glover (instructed by Weightmans LLP) appeared for Appellant.Mr Daniel Edwards (instructed by Thompsons) appeared for Respondent.Hearing Hearing date: 27 February 2008
Judgment
[1]Arriva Trains Northern Ltd (“the defendant”) appeals against an order made by Her Honour Judge Belcher in the Leeds County Court pursuant to a reserved judgment handed down on 13 July 2007. At a trial on 27, 28, 29 June and 2 July 2007 the judge had heard argument upon the claim of Mr Eaglen (“the claimant”) to the effect that, when employed as a train driver by the defendant, it had been in breach of duty, both statutory and at common law, towards him, with the result that he had suffered an aggravation of a painful medical condition. The learned judge was invited at the hearing to determine only issues of liability and causation. In the event her determination was that the defendant was indeed liable to the claimant in that(a) it had been in breach of its statutory duty towards him and/or(b) in a narrower respect it had been in breach of its common law duty of care towards him and(c) such breaches had caused an aggravation of his condition. Thus she entered judgment for the claimant with damages to be assessed. The defendant argues that the judge’s conclusions at (a) and (b) were wrong and that her conclusion at (c) was insufficiently explained.[2]The claimant, who, at the time of the trial was aged 62, began to work on the railways in 1962 and in 1980 he became a fully fledged driver. Until 30 September 2003 he continued to work as a driver; and on 6 December 2003 he retired by virtue of ill-health. Following the privatisation of the railways in about 1994, his employer was the defendant. He had an exemplary work record.[3]At some point towards the end of his working career the claimant developed a degenerative lower back condition which gave rise to sciatica. His claim was that the seating arrangements in two of the types of cabs in which he was required to drive trains, namely the cabs referable to diesel locomotives classified under numbers 155 and 158, aggravated his condition. His claim in relation to the units numbered 155 was that, although there was a well in front of the driver’s seat intended for his feet, in the middle of which was the driver’s safety device, which, if not depressed almost continuously, leads the train to come to a halt, there was no room in the well for such foot as was not used to depress the pedal. The result, said the claimant, was that he had to place the foot which he did not so use, namely his right foot, outside the well and to the right, and that he was thereby required to adopt a twisted posture throughout journeys in those cabs. The judge rejected this complaint on the basis that (so she found) there was room to place the second foot within the well in units numbered 155 and that, in doing otherwise, the claimant had adopted a posture of choice. There is no cross-appeal against that determination.[4]The judge, however, upheld the claimant’s complaint referable to the units numbered 158. The complaint related to the shape of the seat in some of those units. Two types of seat were in use in them. In each the back-rest was identical in that it had a conventional, totally vertical, position. But the shape of the seats was different. One type of seat was flat, i.e. at an even height both at the front and at the rear, with the result that the angle between the rear of the seat and the back-rest was 90 degrees. The claimant made no complaint about the flat seats. His complaint related to the other type, which was higher at the front than at the rear, with the results that the seat sloped backwards, the angle between the rear of the seat and the back-rest was less than 90 degrees and the driver’s thighs were at a higher elevation than were his buttocks. The claimant’s complaint was that his use of the sloping seats aggravated his sciatica.[5]The judge had to, and did, make sense of highly confused evidence from both sides about the number of flat and sloping seats in the defendant’s units numbered 158 during the latter years of the claimant’s employment and about whether sloping seats came to some extent to replace flat seats or vice versa. The judge found that in 2001 the defendant had 54 units numbered 158 and that all of them then had sloping seats; that in 2001 the sloping seats in ten of the units might have been replaced by flat seats; and that thereafter, when a need arose to replace any of the seats in any of the 54 units, the replacement seat was flat. The result was that, as time went on until the claimant’s cessation of work, somewhat fewer of the seats were sloping. It followed that the evidence given by the driver team manager on behalf of the defendant, namely that by 2003 all the units had flat seats, was wholly incorrect; and that, equally, the evidence of the claimant that the original seats were flat and that the replacement seats were sloping was mistaken.[6]Counsel agree that the judge’s survey of the relevant law was impeccable. She said:
“It is [the claimant’s] case that the Defendant is in breach of Regulation 4 of The Provision and Use of Work Equipment Regulations 1998 (PUWER 1998). Regulation 4(3) provides “Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable”
. Regulation 4(4) provides that “.. suitable” means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person”. PUWER 1998 came into force on 5/12/98. … The Regulations replaced PUWER 1992 but I was not addressed at to the applicability of any earlier regulations and the pleaded case does not rely on any earlier regulations. Mr Edwards [who, I interpolate, was then, as now, counsel for the claimant] submits that the duty under the Regulations is a continuing one from 5/12/98. … The duty imposed by the Regulations is not a strict liability duty but is a duty to ensure that work equipment is suitable. The test is whether the seat was suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. To put this another way the question is whether the Defendant knew or ought to have known that the equipment might adversely affect the health and safety of a driver, in which case they would be in breach of their duty in providing it.” By the last sentence the judge charted the territory of the central issue, namely whether the defendant knew or ought to have known that the sloping seats might adversely affect the health of a driver.[7]In this regard the defendant relied heavily upon the following history, which was very largely agreed by the claimant and, insofar as not agreed, was found by the judge and is no longer in issue: i) For some months in 1996/1997 the claimant suffered lower back pain. For about the following six years he did not suffer a recurrence of it notwithstanding the nature of his working duties. ii) From December 1998 until cessation of work on 30 September 2003 the claimant drove units numbered 158 for a little over 50% of his overall driving time. iii) The claimant did not complain to the defendant about the sloping seats at any time prior to 31 July 2003. Not even in the course of the standard assessment of driving competence conducted by the defendant with the claimant every two years, which included a one-to-one interview, did he complain about them. iv) None of the defendant’s other 231 drivers based in Leeds ever complained to it about the sloping seats. v) There was no entry in any Vehicle Defect Book, customarily kept by the defendant in each cab for use by drivers, referable to the sloping seats. vi) No legal claim had been made by any driver against the defendant referable to the sloping seats. vii) There was no evidence as to the extent to which rail franchisees other than the defendant had provided the sloping seats for their drivers but, subject to that caveat, there was no evidence of any legal claim made against any such franchisee referable to sloping seats. viii) There was no evidence of any complaint, whether to the defendant or otherwise, by ASLEF, being the claimant’s union, about the sloping seats. ix) In about March 2003 the claimant developed sciatica, in particular pain in his buttock and left thigh. x) On 7 July 2003 the claimant first complained to his GP of these symptoms. In his note the GP wrote “… sounds like sciatic nerve compression”, referred to his employment as a driver and wrote “pressure from seat”. The GP advised the claimant to discuss the matter with the defendant’s occupational health team. xi) On 31 July 2003 the claimant first communicated a complaint about the sloping seats to the defendant. He did so to his line manager, who noted that the claimant was complaining of pain in his left leg which appeared to be made worse after driving certain types of traction. The manager referred the claimant to the defendant’s occupational physician. xii) On 12 August 2003 the occupational physician saw the claimant. The physician noted “Leg pain in 158 cabs also now starting whenever sits”. He reported to the manager that the claimant was complaining about the seats in units numbered 158 in that the forward edge of the seats was pressing against nerves in his left thigh. He suggested that there should be an ergonomic assessment of the cab by the defendant’s nursing adviser. Although he signed a box marked “Fit to continue in normal occupation” rather than the box marked “Fit for employment with restricted duties”, the physician wrote that “it would also be helpful if [the claimant] could have short routes (less than one hour if possible) to further help the problem”. He asked to review the claimant following the ergonomic assessment. xiii) On 4 September 2003 the nursing adviser purported to carry out the ergonomic assessment. She did so in the presence of the claimant and the driver team manager. Notwithstanding some confusion in her report, it seems that the examination was of a unit numbered 158 rather than of one numbered 155; at all events, however, the unit was one with a flat seat, with the result that the utility of the assessment was surely questionable. The adviser recorded the claimant as saying that initially he had experienced discomfort only when sitting on the sloping seats but that in the last few months he had been uncomfortable on all seats. Her note also reveals that she discussed the physician’s recommendation of short journeys with the team manager, who confirmed that, due to a rostering problem, the claimant had not yet been limited to short journeys but that he would be so limited “as soon as possible”. The adviser suggested the provision to the claimant of a cushion for use on the sloping seats in order to negative the slope. The cushion was provided but it did not alleviate the claimant’s pain. xiv) On 30 September 2003 the claimant again saw the occupational physician, who, in the light of his continuing complaints, in effect signed him off as unfit for driving until the pain in his hip and leg was controlled. He never drove a train again. xv) On 17 November 2003 the defendant offered the claimant early retirement. He accepted the offer and retired on 6 December 2003.[8]In relation to the causation of loss and damage to the claimant, to which, however apparently illogically, it is convenient at this stage briefly to refer, the judge had the benefit of evidence from two consultant orthopaedic surgeons, namely Mr Cox on behalf of the claimant and Mr Davies on behalf of the defendant. They agreed that, quite unrelated to the circumstances of his employment, the claimant had developed symptomatic constitutional degenerative changes in the lumbosacral spine, which in all probability had given rise to sciatica by nerve root irritation at lumbar spinal level. They also agreed that the sciatic nerve might be sensitive to local pressure upon the buttock or leg. They disagreed as to whether the postural requirements, real or alleged, in the units numbered 155 and in such of the units numbered 158 as had sloping seats had aggravated the claimant’s sciatica. Mr Davies gave evidence that any ergonomic deficiencies in relation to the sloping seats in the units numbered 158 would have caused no more than postural discomfort to the claimant, continuing only while he was sitting in the cab and for a short time thereafter. Mr Cox, on the other hand, gave evidence that the postural stresses caused by the claimant’s twisted seating position in the units numbered 155 and by the elevation of his thighs above his buttocks on the sloping seats in units numbered 158 had significantly aggravated his sciatica, probably for a period of 12 to 18 months from March 2003. In answer to a question by the judge, who was already apparently contemplating that she might hold the defendant to be in breach of duty in respect of units numbered 158 but not in respect of those numbered 155, Mr Cox suggested that the aggravation of symptoms for which he was contending might reasonably be attributed as to 20% to the twisted posture in the units numbered 155 and as to 80% to the uneven sitting position on the sloping seats in the units numbered 158. In the event the judge preferred the evidence of Mr Cox to that of Mr Davies; and therein lies the defendant’s third ground of appeal, to which I will turn at [24] below. What is important for present purposes is that, in their statement of areas of agreement and disagreement, produced pursuant to a direction under Rule 35.12(3) of the CPR, the two surgeons, while disagreeing as to whether the sloping seats had caused aggravation of the claimant’s symptoms, conceded that each other’s contrary view lay within the range of reasonable opinion.[9]The Approved Code of Practice issued for the purpose of Regulation 4 of PUWER 1998 stated that, when selecting equipment, employers should take account of ergonomic risks. In May 1999, probably pursuant to the code, the defendant conducted a risk assessment in relation to drivers. It was generic in the broadest sense; and there was no focus, for example, on cabs in individual units. The assessment identified 28 potential hazards which drivers faced and in each case sought to identify the nature and likelihood of the risk, its severity if it eventuated, and the measures which might be taken to minimise it. One hazard was described as “Poor cab seating/ergonomics”; the description of the risk in that regard was “disabling back injury”; and it was suggested that the likelihood of its eventuation was “more than once a year” and that on the scale of severity it would be a “major injury”, with the result that action was needed. It suggested that three measures would lessen the risk, namely the fitting of “Chapman” seats, a briefing of drivers in regard to correct posture and the design of the cabs. In fact it would have been impossible to fit “Chapman” seats in the units numbered 158. Although before her the defendant sought to question the value of its very generalised survey, the judge was certainly entitled to conclude, and in my view (although she could have made her position clearer) she did conclude, that, in the light of it, the defendant should have conducted an ergonomic assessment of the sloping seats in cabs numbered 158. For she proceeded to state that:
“The real question, therefore, is whether either an ergonomic assessment or a properly conducted generic [risk] assessment would and/or should have in fact identified a risk such that the risk was foreseeable and the defendant ought to have taken some action.”
[10]It was important, however, for the judge to have in mind, as no doubt she did, the nature of the risk to which she was there referring. It was the risk that the sloping nature of the seats would affect the “health” of the drivers. At the trial, in my view reasonably at least in relation to the facts of the case, there seems to have been a generally accepted equation of a risk to the “health” of the drivers with a risk of “injury” to them; and, as I will explain, “injury” was contrasted with non-pathological conditions and, in particular in this case, with “discomfort”.[11]The evidence of the surgeons was directed to whether the sloping seats caused injury to the claimant in the sense of aggravating his sciatica. They did not give evidence about whether any effects of the seats were foreseeable.The expert evidence in relation to foreseeability came fromconsultant ergonomists, namely Dr Randle on behalf of the claimant and Mr Pearce on behalf of the defendant. In their respective reports there seemed to be nothing between them. Thus: i) In his report Mr Pearce wrote:
“In a personal injury claim of this type, it is important to distinguish between that which might give rise to discomfort or inconvenience and that which might give rise to injury. This becomes all the more important when the injury for which a claimant seeks damages is the aggravation or acceleration of a pre-existing and/or previously asymptomatic condition. Whether that which might normally only give rise to inconvenience or discomfort materially contributed to such an injury is a matter of medical opinion … … From an ergonomics perspective, I would not expect any pressure on the underside of the thighs arising from the forward edge of the [sloping] cab seat to give rise to a specific, inherent and not insignificant risk of musculoskeletal injury, though I would accept that it could give rise to ephemeral symptoms of discomfort.” ii) In his report Dr Randle wrote: “If the seat on the 158 had padding which was much deeper at the front than the back, then this could cause pressure on the back of the thighs which would result in discomfort. The need to keep the DSD constantly pressed meant that [the claimant] was effectively fixed in these postures for many hours on a daily basis. In my opinion, the combination of poor posture, prolonged duration and the inability to regularly move or vary the posture would give rise to a foreseeable risk of musculoskeletal discomfort and fatigue.”
[12]Mr Edwards contends however that, in a joint statement made with Mr Pearce pursuant to an analogous direction under Rule 35.12(3), Dr Randle did contend that the foreseeable risk in relation to the sloping seats was not just of discomfort but of injury. If he did so, Dr Randle did so rather less than clearly. In recording the areas of their agreement he and Mr Pearce again subscribed to foreseeability of “discomfort”. In recording the areas of their disagreement, however, it was stated that:
“In Dr Randle’s opinion the inadequacies in the design and adjustment ranges of the seat [in units numbered 158] and the poor positioning of the DSD pedal [in units numbered 155] presents an ergonomic risk. This risk makes the equipment unsuitable for the use to which it was put, contrary to Regulation 4 of PUWER.”
It was also stated, however, that:
“Mr Pearce notes that [under] Regulation 4(4) … “suitable” means suitable in any respect which it is reasonably foreseeable will affect the health … of any person. While Mr Pearce accepts that the driver’s seating in Class 155 and 158 units is not entirely satisfactory from an ergonomics perspective, he does not accept that it is reasonably foreseeable that the seating would affect the drivers’ health and safety.”
Mr Edwards submits that, in that Dr Randle was suggesting that the foreseeable risk fell foul of Regulation 4, he was suggesting that it was a risk of injury.[13]On any view it was important for Mr Glover in cross-examination to tease out of Dr Randle precisely what he was saying on this crucial issue. The judge recorded that, in answer to Mr Glover’s question as to whether he was saying that the sloping seats presented a foreseeable risk of injury, Dr Randle replied “I do not go that far. I say they do represent a foreseeable risk of discomfort”. The judge also recorded that Dr Randle went on to point out that in principle discomfort might be pathological or non-pathological and that, as an ergonomist, he was not qualified to say into which category any discomfort fell. It is unclear whether the judge attached significance to Dr Randle’s rider to that effect but, on analysis, it is not significant. His rider was self-evident; and, in that in his earlier answer to Mr Glover, in the context of the risk posed by the sloping seats, he had specifically contrasted “injury” with “discomfort”, it seems to me clear that in that context the discomfort of which he was speaking was non-pathological.[14]Thus, by the end of Mr Glover’s cross-examination of Dr Randle, any such doubts about his evidence as had arisen from the joint statement had been dispelled; and on the crucial issue the two ergonomists were at one, namely that the sloping seat did not pose a foreseeable risk of injury, i.e. to health. Since such was the relevant expert evidence, then, particularly when considered in the context of the absence of any previous complaint about the sloping seats, the claimant’s case that the defendant was in breach of its statutory duty towards him was in my view in profound difficulty.[15]In the event, however, the judge adopted an analysis which led to a conclusion that the risk of injury was foreseeable and thus that there had been a breach of the regulation. She shifted from the ergonomists to the surgeons. She said:
“… [1] in their joint statement of points of agreement and disagreement … Mr Cox and Mr Davies each recognises that the other’s assessment lies within the range of reasonable opinion likely to be expressed in relation to this case. In my judgment it must follow from that [2] that, whilst of the opinion that there is no causation in this particular case, Mr Davies recognises that Mr Cox’s opinion, which recognises the link between postural problems and aggravation of an injury or pre-existing condition, is reasonable and [3] he must, therefore, accept in principle a link between postural issues and ongoing pathological symptoms. It follows from that, [4] that a properly conducted risk assessment would, in my judgment, have recognised that risk and [5] that, therefore, the type of injury complained of by [the claimant] was foreseeable and should have been foreseen by the Defendant.”
At the forefront of the defendant’s appeal is an attack on the judge’s reasoning set out in the above quotation. In order to aid analysis, I have inserted numbers into it in order to identify the five steps in the judge’s conclusion.[16]The opening step certainly appears to have a shallow foundation, namely the anodyne, almost conventional, professional concession by Mr Davies (echoed, be it noted, by Mr Cox mutatis mutandis)that the views of Mr Cox as to the causation of the claimant’s symptoms, although in his view wrong, were nevertheless within the range of reasonable opinion.[17]Thence the judge took steps two and three, which can be considered together. She said that it followed from his concession that, irrespective of his dispute with Mr Cox about the aetiology in the particular case, Mr Davies accepted in principle a link between postural issues, on the one hand, and ongoing pathological conditions, including the aggravation of a pre-existing condition, on the other. The fact is, however, that, rightly or wrongly, Mr Davies had specifically declined, even in principle, to accept such a link. For example, later in her judgment, the judge correctly referred to Mr Davies as having said that “posture cannot result in more than a few hours’ symptoms in the absence of degenerative changes and/or trauma” and, perhaps slightly more clearly, that “all back symptoms persisting for more than a few hours must be linked to trauma or degeneration”. So, in taking steps two and three, the judge was, if I may say so with respect, standing the evidence of Mr Davies upon its head.[18]Thence the judge took steps four and five, which, again, can be considered together. She said that it followed that a properly conducted risk assessment would have recognised a risk of pathological symptoms and indeed of the type of injury complained of by the claimant. But why did that follow? The hypothetical assessment was of the risks attendant upon the sloping seats. Even had the judge been correct in attributing to Mr Davies acceptance of the link in principle, why would an assessment of these seats have revealed a risk that drivers would suffer pathological symptoms of any sort, still less the type of injury complained of by the claimant, namely aggravation of symptoms to which a degenerative lumbar condition had begun to give rise. It might have revealed it; it does not follow, however, that it would have done so. At this crucial stage there was a leap in the judge’s expressed process of thought, which in my view reason did not entitle her to take. Although Mr Edwards presses upon us that the judge had punctiliously addressed the absence of complaints about the sloping seats, whether by the claimant himself or, to the best of the knowledge of both parties, by any other person, and that judges are encouraged not to repeat themselves, I consider that, had she tested her process of reasoning in the quoted passage against that evidence, she would have thought again and pulled back from error. So too if she had tested it against the evidence of the two ergonomists, who had agreed that injury was not foreseeable.[19]So I would allow the appeal against the judge’s conclusion that the defendant acted towards the claimant in breach of statutory duty from 5 December 1998 in relation to the provision to him of sloping seats.[20]In case, however, her finding of liability from 5 December 1998 were to be wrong, the judge proceeded to consider a much more narrow formulation of the defendant’s breach of duty urged upon her by Mr Edwards. It was that by, at the latest, 12 August 2003, when the claimant saw the occupational physician, the defendant was aware that he was complaining that the sloping seats were causing him pain and that thereafter, until 30 September 2003, it was in breach of its duty of care, and in particular of its duty to take reasonable care to provide him with a safe system of work, in failing to act on the physician’s recommendation to provide him with “short routes (less than one hour if possible)”.[21]The judge accepted Mr Edwards’ argument in this regard and held the defendant to have been in breach of its common law duty to the claimant from 12 August 2003 until 30 September 2003. In this court Mr Edwards does not seek to defend the judge’s attribution of liability to the defendant with effect from the very day of the physician’s recommendation. But he stoutly defends it with effect from, say, 19 August 2003.[22]The breach of the defendant’s duty in this respect was founded by the judge upon the following facts: i) The defendant was not clear what the physician had had in mind when recommending that the claimant’s routes be for less than one hour. Was he recommending that his outward and return journeys should together last for less than one hour or that each should last for less than one hour? The evidence was that it would be very difficult for the defendant to have arranged the former but that – at some stage – it could probably have arranged the latter. ii) But the defendant never sought to clarify the physician’s recommendation with him. iii) On 4 September 2003 the driver team manager assured the nursing adviser that the claimant would be limited to short journeys as soon as possible. iv) Furthermore during these weeks the claimant (so the judge found) regularly enquired of the defendant when it would give him shorter routes and was told that, due to a shortage of drivers, he would have to continue to work his existing roster for the time being. v) Prior to 30 September 2003 the defendant (so the judge found) did not fully consider the possible provision of shorter routes to the claimant. vi) Thus on 30 September 2003, as noted by the physician when declaring him unfit for work, the claimant was “still doing up to 2 hours 10 mins”.[23]By reference to the above facts the judge concluded that the defendant was liable to the claimant for “failing to explore adequately or at all [the physician’s] recommendations in relation to the shorter working routes”. In my view however such facts cannot sustain her conclusion. In my view it is important not to approach the issue anachronistically, i.e. in the light of the knowledge which we now have that by 30 September 2003 the claimant had become unfit for work and indeed would never drive a train again. The defendant’s duty of care to the claimant certainly obliged it to react with reasonable promptness and efficiency to the claimant’s complaint to it on 31 July 2003. On that day the line manager’s reaction was to refer the claimant to the physician, who saw him promptly. The physician’s plan was that, as a first step, an ergonomic assessment of the sloping seats should be conducted and that thereafter he should see the claimant again. The assessment, such as it was, was conducted promptly; and its arguable deficiencies do not appear to have been the subject of debate in the proceedings. Thereafter, following a non-attendance on the claimant’s part on 16 September in relation to which he may well not have been at fault, the physician saw him again on 30 September. Such, then, was the plan; and such was implemented. The physician’s further suggestion on 12 August 2003 that short routes would be “helpful” has to be seen in that context and in particular in light of the fact that, by the same document, which was countersigned by the claimant, the physician declared him “Fit to continue in his normal occupation” and chose not, instead, to declare him “Fit for employment with restricted duties”. In the above circumstances I find it impossible to subscribe to the judge’s elevation of the defendant’s failure for, at most, six weeks satisfactorily to address the physician’s suggestion to a breach of its duty to take reasonable care to provide him with a safe system of work.[24]In that in my view the judge should have held that the claimant had failed to establish a breach of any duty on the part of the defendant, it is unnecessary, at any rate for me, to proceed to consider its appeal against her finding of causation; but it may nevertheless be convenient for me to do so. Having carefully set out the rival views in this regard of Mr Cox and Mr Davies and having said that both surgeons had impressed her when giving evidence, the judge expressed her conclusion as follows:
“Doing the best I can on the evidence presented to me by the experts, and based upon my assessment of them in the witness box, I prefer the evidence of Mr Cox in relation to this issue and I find that the seating in the 158 was capable of and did aggravate and prolong the symptoms experienced by [the claimant].”
The defendant, submits Mr Glover, is entitled to understand the reasons why the judge preferred the evidence of Mr Cox to that of Mr Davies yet it cannot discern them from her judgment. Mr Edwards, by contrast, submits that it is clear from the judgment that the preference for the evidence of Mr Cox was founded on four matters, and that, whether they are taken individually or cumulatively, its foundation upon them is sure.[25]The first matter relates to the fact that before the judge Mr Glover had made an energetic assault on the evidence of Mr Cox, which, he said, had been less than straightforward. Mr Glover had, for example, been sharply critical of Mr Cox’s suggested appointment of responsibility for the allegedly aggravated symptoms as to as much as 80% to the units numbered 158 and as to only 20% to those numbered 155. The judge firmly rejected Mr Glover’s complaint that the evidence of Mr Cox had in effect been partisan. Such was a reason for not rejecting his evidence; but it was not a reason for preferring his evidence.[26]The second matter relates to an issue between the surgeons as to whether the claimant’s twisted sitting posture in the units numbered 155 would be likely to have affected his lumbar spine, as Mr Cox had suggested, or his thoracic spine, as Mr Davies had suggested. The judge noted that Mr Pearce had agreed with Mr Davies and that Mr Glover had invited her to take it into account as discrediting Mr Cox. The judge had also said – and in context it is clear that in this respect she was speaking for herself rather than recording a submission – that “it is nevertheless a pointer when considering whether I can sensibly distinguish between the evidence of these two impressive witnesses”. Although she rejected Mr Glover’s attempt to destroy the credibility of Mr Cox by reference, in part, to this issue, the judge’s treatment of the issue certainly suggests that the “pointer” to which she was referring was there intended to mean one which favoured the evidence of Mr Davies. So I cannot accept the submission of Mr Edwards that it in any way helps to explain the judge’s preference for the evidence of Mr Cox.[27]The third matter relates to the refusal of Mr Davies to accept a link between postural problems and injury as opposed to discomfort. Mr Edwards submitted to the judge that the view of Mr Davies flew in the face of experience; but the judge specifically refused to accept that submission because it was unrelated to the evidence. Mr Edwards further submitted that the notes of the claimant’s GP on 7 July 2003, of the occupational physician on 12 August 2003 and of the nursing adviser on 4 September 2003, all ran counter to the view of Mr Davies. The judge recorded this further submission of Mr Edwards but did not say whether she accepted it. Mr Edwards submits to us that she must have done so. If she did so, as to which I am far from convinced, she was in my view wrong to do so. The three sets of notes upon which he relied are primarily a record of the claimant’s complaints and they do not sensibly yield a professional conclusion to be pitted against that of Mr Davies.[28]The fourth matter relates to the submission of Mr Edwards to the judge that Mr Davies had been unable to explain why the claimant did not experience symptoms when driving all types of units and sitting on all types of seats. In another, rare, articulation of her own opinion the judge said that there was “force” in this submission. One response offered by Mr Glover, at any rate to us, is that, in that the claimant was driving units numbered 158 for just more than half of his driving time, he would be likely, at any rate initially, to blame the seats in those units more than those in others. But the more important point is that the premise behind Mr Edwards’ submission was wrong. For the claimant told both the physician on 12 August 2003 and the nursing adviser on 4 September 2003 that during the last few months he had suffered pain when sitting on all types of seats.[29]Although her judgment betrays a conspicuous amount of thought and effort on her part, I am driven to the conclusion that, as Mr Glover submits, it is not possible to discern from it why the judge preferred the evidence of Mr Cox to that of Mr Davies. So, had I felt able to uphold either or both of the judge’s conclusions that the defendant was in breach of duty to the claimant, I would have favoured a rehearing with regard to causation, perhaps, in fairness to the defendant, before a different judge. In so saying, I should record that the judgment of Longmore L.J., which I have read in draft and with which Rix L.J. (by his judgment, which I have also read in draft) agrees, has given me considerable pause for thought. The effect of the judgment of Longmore L.J. is that a rehearing with regard to causation would be unnecessary: for, in that the claimant has failed to establish a matter pre-requisite for the enquiry into causation, namely that in 2003 his injury was aggravated by any factor external to his degenerative condition, there is no room for enquiry into the consequential matter, namely whether it was aggravated by the defendant’s (for me, hypothetical) breach of duty. My colleagues consider that in the present case it is not artificial to draw this distinction; that it is both appropriate and practicable to do so notwithstanding that it was not drawn in the court below; and that the pre-requisite matter should be held not to have been established on the evidence.[30]Happily I can put these troublesome questions to one side and can confine myself to proposing that we should allow the appeal, set aside the entry of judgment for the claimant and, in lieu, enter judgment for the defendant.[31]On a fair reading of her judgment, the critical facts as found by Her Honour Judge Belcher are as follows i) Arriva Trains never made any ergonomic assessment of the driver’s seats in 158 trains (para. 36); ii) the Railcare seats in the 158 trains were ergonomically deficient in that, unlike the Railpart seat which in due course superseded the flatter Railcare seat, the Railcare seat was cushioned at the front and sloped towards the back causing the driver’s thighs to be higher than his buttocks (paras 22 and 38); iii) since the driver had to have one foot on the driver’s safety device (or “dead man’s pedal”) for the majority of the journey, unnecessary strain was placed on the lower back and lumbar region of the driver’s body (para. 37); iv) Mr Eaglen’s lower back had a degenerative condition which gave rise to a degree of sciatica and would, in due course, have led to him having to give up his work as a train driver (para.2 and para.50); v) Mr Eaglen first experienced pain in his left buttock in July 2003 and later in his left leg as well. On a second visit to the defendant’s occupational health doctor he was advised to see his GP and go off work until his hip and leg pain were under control. He was indeed unable to work because the pain was so bad and his GP did sign him off work on 1st October. Mr Eaglen has not worked again (para. 12); vi) if there was pain over and above what could be expected from Mr Eaglen’s degenerative condition, that pain lasted for about 12 to 18 months; (para.57). Relying on these facts, the judge held that it was reasonably foreseeable that “injury” would result from the defective seat for the purpose of the Provision and Use of Work Equipment Regulations 1998 (“PUWER”) and gave judgment for the claimant.[32]The judge also found that i) the Railcare seats had been in use at the Leeds Depot and elsewhere for a number of years without any previous complaint (let alone any allegation of discomfort or injury) from the 231 drivers based in Leeds; ii) although Mr Eaglen had been driving 158 trains for about 12 years and had a one-to-one assessment of his driving competence once every two years, he made no complaint about any awkwardness in relation to the seating in 158 trains; iii) the claimant’s first suggestion of discomfort or pain occurred about twelve years after he had begun driving 158 trains and related (as he originally thought) to the new (Railpart) seats which over a period of time were replacing the Railcare seats; The defendants say that these all important facts were either ignored or insufficiently addressed by the judge.[33]In the light of these findings the questions that had to be addressed were:- i) Did Mr Eaglen suffer pain additional to that which would anyway have occurred as a result of his existing degenerative condition? ii) If so, was that caused by the configuration of the seat on which he was sitting while driving 158 trains? iii) If so, was it foreseeable that Mr Eaglen’s health would be affected by the seat in which he was driving? Medical expert evidence would help to resolve the first two of these questions, the third was a matter of ergonomic expertise.[34]Unfortunately the judge, no doubt following the order of counsel’s submissions addressed the third question first albeit that she felt unable to answer it without help from the medical evidence; and, when she did address the medical evidence, she answered both the first and the second questions together in an amalgamated form.[35]The result of this is that the judgment does not adequately confront the question whether Mr Eaglen did, as Mr Cox said, suffer pain which was additional to the pain that would anyway have occurred as a result of his degenerative condition. The judge summarised Mr Cox’s evidence (para.50):- “the effect of driving the units complained of was to aggravate the symptoms for some 12 to 18 months after the onset in early 2003 and [that] after that period of time the symptoms would have reverted to those to be expected in any event from the degenerative change … it is likely that the postural stresses imposed on his back by the seating, bearing in mind the need to remain seated and the relative immobility resulting from the need to keep the DSD depressed, was such that on a balance of probabilities it was likely that the seating had aggravated Mr Eaglen’s symptoms.” The judge later (para. 54) called this the “causal link between the aggravation of symptoms and poor posture”.[36]She recorded Dr Davies’s view (para. 51) as being that “any ergonomic deficiencies in relation to the seating in the units would cause no more than postural discomfort continuing during the period that Mr Eaglen was sitting and driving and for a short time thereafter”[37]When the judge came to the point of decision between these two opinions in para. 56 she says just this:- “… I accept Mr Edwards’ submission that the link is certainly recognised by the GP and indeed by Mr Davies when he acknowledged that Mr Cox’s opinion is in the range of reasonable opinion in this case. I also consider there is force in the submission that if all that Mr Eaglen was experiencing was sciatic nerve irritation then logically this should occur when driving all types of units and on any type of seat. Doing the best I can on the evidence presented to me by the experts, and based upon my assessment of them in the witness-box, I prefer the evidence of Mr Cox in relation to this issue and I find that the seating in the 158 was capable of and did aggravate and prolong the symptoms experienced by Mr Eaglen.” This passage rolls up the two questions that have to be determined; indeed it may be more accurate to say it assumes the first question in Mr Eaglen’s favour and, having assumed he did indeed have aggravated symptoms, says that these symptoms were caused by defective seating. I say that because “the link” being discussed is the link between poor posture and the aggravation of symptoms which is somehow assumed to exist.[38]To the extent that the judge has addressed the first question in the passage, her reasoning is, in my view unsatisfactory. i) The reference to Mr Eaglen’s GP is a reference to the GP notes recording “sciatic nerve compression”, Mr Eaglen’s job as a train driver and “pressure from the seat”. This goes to the linkage with seat but not the question of symptoms additional to those from his degenerative condition. Even if the record does go to that question, it is unusual to regard a GP’s view (based on what he is told by the patient) as resolving conflicting views of orthopaedic surgeons; ii) The fact that Mr Davies recognised Mr Cox’s opinion as being within the range of reasonable opinion (as indeed Mr Cox recognised Mr Davies’s opinion as being likewise within such reasonable range) hardly takes the matter very far; iii) The judge appears to have overlooked the evidence (recorded in paragraph 11 of the judgment) that within two months of Mr Eaglen's first seeing his GP, he was complaining that in the last few months he was uncomfortable on all seats.[39]Since the judge has not adequately (or in my view really at all) addressed the first question and, bearing in mind that neither side has asked for a new trial, it seems to me that we have to do our best on the evidence available to us.[40]On that basis it does appear significant(a) that it is agreed that Mr Eaglen did have a degenerative condition in any event and(b) that he said in September 2003 that for some months he had been uncomfortable in all seats. If that is so, it must to my mind follow that it is unlikely that he can suffer any symptoms over and above what could unfortunately be expected from his degenerative condition. If one adds to that the oddity of a concept which asks one to suppose that Mr Eaglen’s symptoms were not in any way accelerated but merely aggravated at a time when they were due to occur in any event, it seems to me that on a balance of probability it is much more likely that it was Mr Eaglen’s degenerative condition which has necessitated his giving up his job rather than any aggravation of such symptoms. My conclusion is, therefore, that Mr Eaglen has not proved that he has been suffering any pain additional to that which he would be suffering anyway. For this reason Arriva Trains’ appeal must be allowed.[41]I have thought it necessary to separate the question of actual symptoms and causation by the defective seating, because I would find it difficult to reverse the judge on questions which she actually did consider. Since I agree that this appeal should be allowed, I can deal with these aspects shortly.[42]Thus, if it had been properly established on the evidence that Mr Eaglen had actually suffered a real aggravation of his endemic condition, I would have said that the judge was entitled to conclude that that aggravation had been caused by the ergonomically defective seat. After all no other cause has been advanced and Mr Davies would presumably say that the seating and the aggravation just occurred coincidentally. On the face of it that does not sound particularly convincing.[43]Once one gets that far, I would also have upheld the judge’s conclusion on breach of duty albeit not for the reasons she gave. I agree with my Lord’s conclusions with regard to the judge’s use of the medical evidence in this connection as contained in paragraph 17 of his judgment. But my own view is that the medical evidence is irrelevant to breach of duty; it is essential for the purpose of resolving the first two of the questions I have posed above but on the question of breach of duty it is only the ergonomic evidence that assists. If Mr Eaglen really did have aggravated symptoms caused by the seat, his health was undoubtedly affected and the only question for the purpose of Regulation 4 is whether it was reasonably foreseeable that Mr Eaglen’s health would be affected by the admittedly defective seating. In my view it was reasonably foreseeable that defective seating would cause injury.[44]The oddity in this connection is that Arriva Trains did conduct a national risk assessment which was at best a formality. The judge held that they were entitled to ask the court to disregard it. But the fact is that it threw up the possibility of train seating being ergonomically defective as was in due course found to be the case in relation to the Railcare seat. Arriva Trains have to confront the dilemma that either they recognised the need for a risk assessment but did nothing about it or they did have a risk assessment but did not follow its conclusions. Either way it seems to me that the seating was not “suitable” within Regulation 4, in the sense of being “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.” If it is reasonable to do a risk assessment and a reasonable completed risk assessment would cast doubt on the suitability of equipment such as a seat and a driver’s health is affected, the seat is not suitable. As Lord Hope pointed out in Robb v Salamis (2006) UKHL 56 [2007] I.C.R. 175 paras 23-24 it is nothing to the point in the context of the Provision and Use of Work Equipment Regulations that the kind of injury complained of has not happened before. It is the employer’s duty to guard against risk. An ergonomically defective chair is just such a risk.45. These are, however, peripheral questions since I agree with my Lord that the ultimate result of this appeal is that it should be allowed. Lord Justice Rix:46. I agree that this appeal should be allowed, essentially for the reasons given by my Lords in their judgments. In particular, I agree with Lord Justice Longmore that Mr Eaglen has failed to prove his case that he suffered a relatively long-standing (albeit temporary) aggravation of his degenerative condition. His suffering was what it was, there was no dispute about that, but on a proper evaluation of the medical evidence, there was nothing to show that this was not just the operation of his degenerative condition, which in itself was common ground. As it was, within a short period of time, every seat gave Mr Eaglen the same pain, a point which the judge missed, and having missed used its counterpoint against the appellants. It follows that Mr Eaglen has failed to prove that the aggravation on which he founded his case was caused by the older version of the 158 seat. I therefore agree with Longmore LJ that, seeing that neither side has asked for a new trial, we are entitled, on the failure of the judge’s narrow preference for the evidence of Mr Cox over that of Mr Davies, to make up our own mind on the issue which divided them, which I regard as inseparable from the issue of causation. That issue was: what caused Mr Eaglen’s pain? The answer given by Mr Davies was: his degenerative condition. The answer given by Mr Cox was: the 158 seat. However, with the failure of any reason to prefer Mr Cox’s evidence over Mr Davies’, given the agreement of the ergonomic experts that the 158 seat, despite its deficiencies, would only cause discomfort not injury, and in the absence of any evidence that any driver of the 158 train had at any time suffered any injury or other prejudice to his health or safety due to the 158 seat, we are entitled, in my judgment, to conclude that Mr Eaglen’s claim must fail.47. Similarly, in these circumstances I agree with Lord Justice Wilson that the judge was wrong to find in the evidence of the experts any support for a foreseeable risk to health or safety. It is not clear to me whether the judge regarded Mr Cox’s evidence as supplementing the ergonomic evidence or as standing on its own. In any event, for the reasons given by Wilson LJ, the ergonomic experts gave no support to the 158 seat as a foreseeable risk to health or safety – indeed their evidence was to the contrary – and neither did Mr Cox when once it is understood that the judge had no good reason for preferring his evidence to that of Mr Davies to the contrary. In this state of the evidence, and again in the absence of any finding that any driver of the 158 trains had at any time suffered an injury or other prejudice to his health or safety due to the 158 seat, I agree that the finding of breach of duty cannot be supported. I do not think it is helpful to speculate on what might have been the position had the facts been otherwise.