Dugmore v Swansea NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,LORD JUSTICE TUCKEY |
| Judgment Date | 21 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1755,[2002] EWCA Civ 1689 |
| Docket Number | Case No: B3/2002/0827,B2/2002/0827 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2002 |
[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)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Tuckey
Lady Justice Hale and
Sir Denis Henry
Case No: B3/2002/0827
Philip Marshall (instructed by Messrs Thompsons Solicitors) for the Appellant
Stephen Shaw (instructed by Messrs Morgan Lewis Mayers Solicitors) for the Respondents
This is the judgment of the court given by —
1. 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...
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