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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010 (22 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1010.html Cite as: [2002] IRLR 742, [2003] 1 WLR 536, [2003] ICR 152, [2002] EWCA Civ 1010, [2003] WLR 536

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		Neutral Citation Number: [2002] EWCA Civ 1010
		Case No: B3/2001/2574

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WALSALL COUNTY COURT
(HHJ Rundell)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd July 2002

B e f o r e :

LORD JUSTICE SIMON BROWN
(Vice-President of the Court of Appeal Civil Division)
and
LORD JUSTICE BROOKE
____________________

Between:


	WAYNE JOHN COXALL	Claimant/ Respondent
	- and -
	GOODYEAR GREAT BRITAIN LIMITED	Defendants/ Appellants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Simon Beard (instructed by Chapman Everatt) for the Appellants
Satinder Hunjan QC (instructed by Rowley Ashworth) for the Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lord Justice Simon Brown:

1. This is the defendants’ appeal, brought with the permission of the judge below (His Honour Judge Rundell), against his judgment in the Walsall County Court given on 9 November 2001, awarding the claimant (the respondent) damages of £7,500 together with interest and costs. The damages were awarded for occupational asthma suffered by the respondent through working as a paint and line operator at the appellants’ tyre factory at Wolverhampton.
2. The facts found by the judge relevant to the determination of the appeal can be comparatively briefly stated. The respondent started working on the paint and line section on 26 February 1996. For some six years before that he had been employed by the appellants as an HGV driver but, having lost his licence for a drink/driving offence, he needed a new job. Although not particularly congenial work, the respondent was grateful for it.
3. In March 1996, just after the respondent began his new job, the lubricant paint used in the manufacturing process for spraying inside the tyres was changed and a new product called Lindcoat BR 880 produced by Rhone-Poulenc was brought into use. Within a very few days of the change, because of concerns expressed by the workforce as to certain elements of the new paint, the respondent and his fellow workers were provided with protective equipment (rubber gloves, goggles and a respirator) for use whilst spraying.
4. The judge found these precautions to be “all the reasonable and practicable precautions that the defendants could have taken” and, although various members of the workforce suffered from occasional headaches, the manufacturing process was found to be perfectly safe and satisfactory.
5. The problem so far as the respondent was concerned was that, although initially unknown both to him and his employers, he suffered from a mild constitutional predisposition to asthma. When eventually this came to light, he was advised that he must avoid any work involving exposure to known respiratory sensitizers or significant levels of irritant fumes, smoke or dust.
6. On 3 April 1996 the respondent consulted the works nurse complaining of severe headaches. A fortnight later, on 17 April 1996, he went to see the works doctor, Dr Barnes, complaining of both headaches and other symptoms such as giddiness. Dr Barnes that very day addressed a memo to Mr Harper, the respondent’s business Team Manager, stating:

“Following my examination of this man again today, it is my opinion that he should not work with the new paint which has just been introduced. He is very genuine and is conscious of the fact that the Company has been very good to him.”

(The reference to examining the respondent “again today” must, I think, refer to the respondent having seen the works nurse in the medical department on 3 April; it is not suggested that he had been previously examined by Dr Barnes.)

7. Unfortunately, for whatever reason, that memorandum never reached Mr Harper and in the result the respondent remained at work on the paint and line section. On 10 May 1996 he fell and for a few minutes was unconscious. He was later taken to hospital and on 14 May consulted his own GP. On 23 May he again saw Dr Barnes. At that stage he was formally diagnosed to be suffering from occupational asthma caused by irritant fumes at work consequent on his constitutional predisposition and he was certified unfit to work.
8. Although the respondent, still aged only 42, has been off work virtually ever since, this has largely been the result of depression: his occupational asthma, it was agreed, resolved by March 1997.
9. The judge found that up to 17 April 1996 the appellants took all reasonably practicable precautions and were not open to criticism. He further found that the respondent himself knew of Dr Barnes’s intention to write to Mr Harper to suggest that he should be removed from his job and yet nevertheless chose to remain at work since he needed the money. The judge held, however, that “a reasonable employer … would have acted within a very few days” of receiving Dr Barnes’s memorandum (as plainly they should have done on 17 April). I should quote the material part of the judgment as to the importance of that memorandum:

“It constitutes, in my view, unequivocal medical advice from the company’s own doctor that the claimant should not work with the new paint. Mr Ryder [the appellant’s health and safety manager] accepts that had he been shown the letter (he wasn’t) he would have advised also that the claimant be taken off the job. Mr Harper who was asked about this also accepts that following a discussion he would have had, had he known about the letter, with Dr Barnes, if the advice remained the same (and in my judgment it would have) then he too in the final analysis would have removed the claimant from his work. But regrettably Dr Barnes’ letter was not acted on and the claimant was exposed to the fumes for a further three weeks or so. I ask myself the question whether the defendants were under an obligation as a matter of last resort to take the claimant off the job.”

10. In the event the judge held that they were under this obligation and assessed damages on the footing that they were accordingly liable for the exacerbation of the respondent’s condition through his additional exposure to fume irritant.
11. The appellants challenge the judge’s holding that they were under an obligation to take the respondent off the job. That is the critical, indeed sole, ground of appeal. Mr Beard’s central contention on their behalf is that “an employer is not under a duty to remove an employee from safe work, still less dismiss him, because he is not suited to the work”. Rather, he submits, it is for the employee to decide whether or not to take the risk of continuing in his job. A series of Court of Appeal decisions, notably Withers -v- Perry Chain Co Limited [1961] 1 WLR 1314, Kossinski -v- Chrysler United Kingdom Limited (1973) 15 KIR 225 and Henderson -v- Wakefield Shirt Company Limited [1997] PIQR P413, is said to be authority for that proposition. Let me briefly consider each of those three cases.
12. The plaintiff in Withers was an employee with dermatitis who returned to work when it was known both to him and his employers that his continuation to work would give rise to a small risk of dermatitis recurring or being exacerbated. The Court of Appeal allowed the employer’s appeal against the trial judge’s award of damages. At p 1317 of the judgment Sellers LJ said this:

“… the defendants gave her what they thought to be the best available work they had. In fact, if she had not taken that work it would seem that she would not have worked at all and would not have earned any wages, which apparently she sought to do. I cannot believe that the common law requires employers to refuse to employ a person who is willing to work for them simply because they think that it is not in the person’s best interests to do the work. That would be imposing a restriction on the freedom of the individual which I think is foreign to the whole spirit of the common law of our country.”

13. At p 1319 he added:

“… there is no duty at common law requiring an employer to dismiss an employee rather than retain him or her in employment and allowing him or her to earn wages, because there may be some risk. The duty of the defendants in this case was to take all reasonable care for the plaintiff in the employment in which she was engaged, including a duty to have regard to the fact that she had had dermatitis previously. Beyond that I do not think the common law can be invoked.”

14. Devlin LJ said at page 1320:

“In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so - as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run.”

15. The plaintiff in Kossinski sustained injury to his elbow whilst removing paint with compressed air. Some months previously he had been diagnosed as suffering from tennis elbow. He claimed damages on the basis that he had been allowed to return to work of a kind likely to aggravate his injury. That claim failed both at first instance and on appeal. Following the approach set out in Withers, Edmund Davies LJ at p 229 said this:

“It requires no authority to illustrate the cogency of the proposition that the duty of reasonable care does not impose upon an employer the necessity of saying to an employee: ‘You are not fit for this properly-planned and entirely safe work because of your own physical condition, and therefore, despite your own desire to continue at it, we must dismiss you’

Indeed, in the light of such cases as Withers … [that] would have been an unacceptable submission …. In certain cases a duty of warning by the employers may arise, but it must depend upon the circumstances of the case.”

16. James LJ added at p 231:

“When the man himself made no complaint, I do not think that it was incumbent on the employers to conduct an investigation as to what, if any, other alternative work was available for him or to give him such warning that if he wanted to continue with his work he would do so at his peril.”

17. In Henderson the plaintiff’s job was as a final presser to iron shirts at the defendant’s factory. In 1991 she developed a painful stiff neck, consulted her GP, and was off work for a couple of months. In July 1992 she was again off work for a fortnight with neck pain, stiffness and tendonitis in the right shoulder. In January 1993 she was transferred to different work. The trial judge awarded her damages on the basis that when her symptoms emerged and she complained to her employers, they were under a duty to take her off the job. On the basis of the earlier authorities the employers were successful in their appeal. Kennedy LJ concluded that they had not been under a duty to offer the plaintiff a wholly different job any earlier than they did. Sir Ralph Gibson said at p 420:

“It is, in my judgment, impossible to hold on the material before the judge that the defendants were in breach of any duty whatever in March 1991. It would be to hold that the defendants were obliged, when the plaintiff reported that she suffered pain in doing work which was safe, to take her off that work. There is no such duty in law: see Withers -v- Perry Chain [1961] 1 WLR 1314. The plaintiff knew she was suffering pain in or after doing the work and there was no advice that she needed or which would then have assisted her. She knew in June that it was her work which was causing the pain, but she had not been advised by her doctor that she should not do it.”

18. The judge below, having considered those authorities, indicated that if he were to accept them, then the respondent’s claim would fail. He continued:

“I am not, however, inclined to follow this [line of] authority for the reasons submitted to me by Mr Hunjan that the authority relating to dismissal of employees is now forty years old. A lot has changed in the world of employment since 1961, not the least the COSHH regulations. Duties and obligations on employers are now much more stringent and it seems to me in 1996, because that is the time that I have to consider, in circumstances where a company doctor advises that an employee be moved, where a health and safety manager concurs with that suggestion and where the manager himself said that had he been aware of the advice he would have accepted that advice, it seems to me that failure to follow that advice, either to move or in the final analysis to dismiss the employee, does constitute a breach of the employer’s duty and … if the employee suffers an exacerbation of his illness or condition then that exacerbation is actionable.”

19. Judge Rundell later gave permission to appeal on these terms:

“Limited to the question whether, in the light of the evidence, the decision in Henderson was binding on me. I took the view that it was not and that it was distinguishable on the facts of the instant case.”

20. Before turning to the rival arguments on the appeal, it is convenient first to refer to one further authority, this Court’s recent decision in Hatton -v- Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1, a decision on four conjoined appeals and a guideline case with regard to the circumstances in which employers are liable for an employee’s psychiatric illness caused by stress at work. For present purposes it is, I think, sufficient to cite paragraph 34 of the Court’s judgment:

“Moreover, the employer can only be reasonably expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employee’s own good. As Devlin LJ put it in Withers -v- Perry Chain Co Limited [1961] 3 All ER 676 at 680, [1961] 1 WLR 1314 at 1320:

‘The relationship between employer and employee is not that of schoolmaster and pupil … the employee is free to decide for herself what risks she will run … if the common law were to be otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him.’

Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.”

21. Not surprisingly, Mr Beard for the appellants relies on the court’s reiteration there of the Withers principle and its reference to the employee having to decide whether or not to take the risk to health involved in continuing work, whereas Mr Hunjan QC for the respondent emphasises the court’s observation that “we are not here concerned with physical dangers”, the court having already referred in paragraph 11 of its judgment to the “several differences between this [psychiatric illness through stress] and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work.”
22. On one reading of the judgment below and the terms in which permission was granted, Judge Rundell appears to have been declining to follow the Withers principle on the basis that it is now to be regarded as out of date and no longer binding. It may be, however, that in any event he felt able to distinguish the Court of Appeal authorities on the facts in the light of Dr Barnes’s “unequivocal medical advice” and the evidence given by Mr Ryder and Mr Harper that, had they known of it, they would have put the respondent off the work.
23. It is Mr Beard’s submission that, on whatever basis this judgment was arrived at, it is in law unsustainable. The appellants’ contention is that the principle established in Withers remains good law and that it binds the judge on the facts found in this case. The Withers principle is, he maintains, that employers are not under a duty to dismiss an employee from work which can ordinarily be safely undertaken merely because of some particular susceptibility on the employee’s part (known both to him and to them) exposing him to the risk of harm if he continues in that work; rather it is for the employee to decide whether or not to take the risk. That principle, he points out, has stood now for forty years. It has always been endorsed by this court. It has never been said to depend upon the magnitude of the risk. Certainly, he recognises, increased duties have been placed upon employers over the years, including, as the judge below mentioned (see paragraph 18 above), the COSHH regulations (the Control of Substances Hazardous to Health Regulations 1994). As Mr Beard points out, however, regulation 11 of those regulations - which provides for health surveillance where an employee is exposed to certain specified substances and the possibility of suspending him from particular work on medical advice - has no application on the facts of this case and, even if it had, it is open to an aggrieved employee or employer to apply for a review of any decision to suspend. That, he suggests, supports the view that the individual employee’s right to work ought not to be too readily restricted. Indeed, he argues, it goes further than that: if an employee who wishes to continue working and to take the risks involved is then dismissed, he is likely to claim damages for unfair dismissal. The courts should be in the highest degree wary of impaling employers on Morton’s fork: exposing them to personal injury claims if they allow employees to remain at work, damages claims for unfair dismissal if they do not. True, Mr Beard acknowledges, the appellants’ doctor, team manager and health and safety manager all gave evidence that the respondent should have been removed from his job. But, he argues, the scope of an employer’s duty at common law cannot depend upon the view taken by individual witnesses.
24. Mr Hunjan for the respondent submits the contrary. The duty he contends for is the duty upon employers to protect their employees against themselves. Just as employers are regularly held liable notwithstanding that their employees knowingly take risks and even disobey orders, so too the primary responsibility for safeguarding them against harm should rest with the employers. Such an approach may fairly be described as being in the best sense paternalistic.
25. For my part, I readily acknowledge that conflicting principles, perhaps even philosophies, are here in play. On the one hand is the principle expressed by Sellers LJ in Withers that “imposing a restriction on the freedom of the individual … is foreign to the whole spirit of the common law of our country” (or, as Devlin LJ put it, “the relationship between employer and employee is not that of a schoolmaster and pupil”). On the other hand employers clearly must bear some overall responsibility for the health and safety of their workforce.
26. How, then, is the undoubted tension between these principles to be resolved? To my mind this can only be achieved by reference to the individual facts of each case. Powerfully though Mr Beard’s arguments were advanced, I think in the end they go too far and prove too much. I simply cannot accept the Withers principle in quite the absolute terms he suggests, namely as a principle in no way dependant upon the magnitude of the risk in question. If the appellants’ argument here were sound, it would follow that employers would be immune from liability even, say, if they retained as spidermen employees whom they knew to suffer intermittently from vertigo or epileptic fits. That cannot, I think, be right.
27. Rather it seems to me that the principal consideration in determining whether or not any particular case falls within the Withers principle must be the actual nature and extent of the known risk. The risk in Withers itself, be it noted, was variously described in the judgments as “some risk” (Sellers LJ: “there may be some risk”), “a slight risk” and “a small risk”. Kossinski concerned only a tennis elbow. The plaintiff in Henderson had not even been advised by her own doctor to stop work.
28. How then do matters stand in the present case? I confess I have not found it an altogether easy one. For my part I regard the Withers principle as no less effective today then when it was first adumbrated. True it is that employers’ responsibilities towards their workforce have grown down the years. But society’s increasing respect for an employee’s autonomy to my mind represents a countervailing consideration. And the risk of precipitating claims for unfair dismissal is by no means to be discounted.
29. All that said, however, cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will nevertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger. The spiderman example I have given above is an obvious one. The present case, of course, is very much less obvious. I conclude, however, that in this instance too the duty arose. It is a striking feature of this case that all three of the appellants’ staff most directly concerned with the respondent’s welfare (the works doctor, the line manager and the health and safety manager) all thought that he should cease work - the evidence of the two managers being that, had they known (as plainly they should have known) of Dr Barnes’s view, they would have taken the respondent off his job. True, as Mr Beard argues, their evidence alone cannot dictate the extent of the appellants’ duty. But if they themselves regarded the respondent’s cessation of the work as necessary, and inferentially as their responsibility, I see no good reason for the court to regard them as having been under any lesser duty. It is essentially on this basis that I regard the judge below as having been entitled to distinguish the Court of Appeal line of authority. In none of those three cases was the position reached where the employers came to recognise that their employee should no longer continue in the work. Far from it.
30. It follows that, in my judgment, whilst the judge was wrong to decide (if, indeed, he did) that the Withers principle was not binding upon him, he was nevertheless correct in concluding that the appellants were negligent in having failed to follow their own doctor’s advice (because, of course, they had not received it) and failed “either to move or in the final analysis to dismiss” the respondent.
31. By way of footnote I add just this. No case in contributory negligence was pursued here on the footing that the respondent himself was partially to blame for his own injury in having chosen to continue at work despite knowing of the risk involved and of Dr Barnes’s express advice to his manager that he should stop working. I say no more than that, had it been, it might well have relieved the appellants of part of their liability.
32. That, however, is essentially by the way. For the reasons earlier given I would dismiss this appeal.

Lord Justice Brooke:

33. I agree.
34. The judgments of the court in this case must not be read as establishing any new principle. If the Civil Appeals Office had been alerted to the fact that the claimant wished us to reconsider the appropriateness, in the contemporary employment scene, of the principles established by this court in Withers v Perry Chain Co Ltd [1961] 1 WLR 1314, which were subsequently followed in the line of cases to which Simon Brown LJ has referred, a three-judge court would have been convened and I, for my part, would have wished to hear argument which ranged much more widely than was available to us on the present appeal.
35. The law’s dilemma in a case like this arises when an employer has done all that is reasonably practicable to protect his employee from harm in the work he reasonably requires him to do, but the employee has some personal idiosyncrasy which puts him at risk while performing work which can be safely performed by virtually all his fellow-employees. If the employer simply has no alternative work reasonably available, what is he to do? He cannot reasonably be required to continue to employ and pay the employee for doing no work. If the employee, with full knowledge of the risks he runs, tells his employer, following a discussion of the available alternatives, that he nevertheless prefers to run those risks rather than have no work at all, is the employer nevertheless compelled to dismiss him on the grounds that he would otherwise be held liable for negligently endangering his employee’s health? In Bishop v Baker Refractories Ltd (see Hatton v Sutherland [2002] EWCA Civ 76 at [211]–[214], [2002] 2 All ER 1) Mr Bishop’s dilemma was that he simply could not cope with the responsibilities of fairly elementary decision-making which a job re-organisation entailed. Mr Coxall’s dilemma is that he was found to be peculiarly sensitive to industrial asthma in work which carried with it no measurable risk to the rest of the work force, provided that they made use of the protective equipment issued to them.
36. As Sellers LJ said in Withers at p 1317, the whole spirit of the common law in this country is concerned to protect the freedom of the individual. In its Consultation Paper No 139 (1995), Consent in the Criminal Law, the Law Commission pursued in depth questions relating to personal autonomy and an individual’s right to consent to harm being inflicted on him. It may be that as our law now stands (see R v Brown [1994] 1 AC 212), an employee may not elect to stay at work in these circumstances if to do so meant that he would run a very significant risk of being exposed to harm of a considerable magnitude, but these are vague concepts which would need to be tightened up when a court is invited to consider particular factual situations. For greater clarity we will have to await occasions where the relevant points arise for decision and when the issues on both sides of the argument are fully and thoroughly canvassed.
37. On the present occasion I am content to uphold the decision of the judge on the limited basis that the defendants ought to have discussed with Mr Coxall all the available options once their works doctor had formed the conclusion identified in paragraph 6 of Simon Brown LJ’s judgment. If they had done so, and if he had then insisted that he wished to go on working, it would have been a different case. But they did not do so, and in those circumstances I am not willing to say that the judge was wrong (see CPR 52.11(3)(a)) in the conclusion he reached on the facts of the case before him.

ORDER: Appeal dismissed. The appellant to pay the respondent's costs of the appeal, to be subject to a detailed assessment if not agreed.

(Order not part of approved judgment)