Case Nos: B3/2012/1281, 1416, 1417
Neutral Citation Number: [2013] EWCA Civ 519
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
HIS HONOUR JUDGE VOSPER QC
7SA02769, 7SA02770, 7SA02801
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/05/2013
Before :

LORD HUGHES OF OMBERSLEY
MR JUSTICE DAVID RICHARDS
and
THE RT HON SIR ALAN WARD
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Between :

	(1)	ROBERT WILLOCK
(2)	PHILLIP JOHN NICHOLAS
(3)	SHAUN LOCKWOOD PRICE	Appellants	
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	CORUS UK LIMITED	Respondent	

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(Transcript of the Handed Down Judgment of
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Patrick Limb QC and David Harris (instructed by Leo Abse & Cohen) for the Appellants
Dominic Nolan QC and Daniel Edwards (instructed by Berrymans Lace Mawer LLP) for the Respondent

Hearing date : 19 December 2012
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Judgment
Lord Hughes of Ombersley: 

1.	This is a claimants’ appeal in a workplace personal injury case.  The case began as an assertion of liability under a number of different heads and over many years.  But in the end, as foreseen by Dame Janet Smith when granting leave to appeal, the principal issue now concerns the correct application of Regulation 17(2) of the Provision and Use of Work Equipment Regulations 1998, 1998 No 2306 (“the Equipment Regulations”).  The judge held that the Defendant employers were not liable for a breach of this regulation.
2.	Regulation 17(2) requires that:
“Except where necessary, the employer shall ensure that no control for work equipment is in a position where any person operating the control is exposed to a risk to his health and safety.”
3.	The defendant employers are large scale steel manufacturers.  At one of their plants in South Wales, as no doubt at others, some of the steel handling was accomplished by way of overhead cranes. The judge was concerned with four of them. Each ran on an overhead track, affording forward and back travel, had a cross member enabling the hoist or sling to be moved sideways, and of course could raise or lower the hoist or sling, and open and close the grab. All these movements were controlled by the driver from the overhead cab of the crane.  The cranes had separate controls for each movement. 
4.	The claimants were crane drivers. The judge tried four lead cases and it is apparent that others remain to be decided once the principle has been dealt with.   The claims asserted back pain and/or discomfort (and in some cases pain elsewhere) for a variety of suggested reasons, which conditions were said to date from a new method of team working introduced in 1998.  The team working was found to be irrelevant, and in the end, the judge rejected all suggested claims except backache and all suggested causes of that except one.  The one which he accepted related to the position which the drivers had to adopt in some of their cabs in order to see downwards to the load and to control its movement precisely.  The difficulty arose from the necessity to watch carefully the precise movements of the crane hook or sling when it was directly below the cab.  All the cabs had seats, but in one it was necessary to stand for much of the time in order to see out, and in two at least it was necessary to lean forwards to see whilst at the same time reaching to each side, and a little behind, to keep one’s hands on the controls. The judge found that not all drivers adopted the same method of work, and that in any event not all drivers were affected by pain or discomfort.  The exact extent of his findings must be considered in more detail below, but he found, at [140], [144] [164] and [206(1)], on the basis of ample evidence, that in some manner at least the posture required in two cranes was capable, over the prolonged period of working involved, of causing limited back pain and discomfort.  He further found that, of the four claimants whose cases he was dealing with, three could attribute such back discomfort or pain to this posture which they had had to adopt in the cabs. 
5.	The injury was limited to discomfort or pain.  The posture had not caused any structural injury, or pathology.  The claimants already had some degenerative condition in the back, as does a very large proportion of the public, especially by a certain age, but these conditions had developed independently of their work and were not caused by it. Nor was the progress of these degenerative conditions accelerated by the difficult posture in the cabs.  However the judge held, correctly, that to cause muscular back pain or discomfort, or, as here, somewhat increased pain or discomfort, even temporarily, does amount to doing some personal injury.  
6.	There had been complaints of backache by the drivers from time to time. The judge accepted the evidence of one of the ergonomics experts called at the trial, that by 2003 there had been sufficient to put the defendants on notice that an ergonomic evaluation of the cab layout was needed.  Moreover, by then there was notice generally to employers such as the defendants in the form of an Information Minute issued by the Health and Safety Executive (“HSE”) in 2002.  It stated in the following terms the problem addressed:
“Research carried out by HSE indicates that drivers of cranes ….are at risk of developing musculoskeletal disorders.  This is due to a combination of the amount of time spent in awkward postures to enable them to view the load and surrounding area and exposure to whole body vibration.”
It went on to note that the risks had been known for some years but in general no satisfactory solutions had yet been found.  Seven possible alterations to practice were considered, which included modification of cabs, but it concluded that:
“in the short term it is unlikely that much can be done to change the driver’s working posture due to the cabin location and the visual demands of the task.”
Its principal recommendation was advice and monitoring of drivers coupled with rotation of tasks.  
7.	The defendants had not been inactive.  New seats had been fitted to several of the cranes in 2003.  An ergonomic evaluation was commissioned from an expert, Mr Samuel, who reported in April 2005. He considered the cranes individually.  Amongst other recommendations Mr Samuel proposed, for the cranes which the judge found to have given rise to the posture problem, (1) minimising the size of control boxes so that visibility past them could be improved and/or (2) fitting a rotating seat to reduce sideways leaning.  Both those adaptations would involve replacing existing separate rotary controls with a modern joystick control, which was by then becoming more common.
8.	Mr Samuel’s recommendations were considered by the defendants internally at a review meeting in July 2005. That meeting endorsed the above-mentioned adaptations, and coupled with it a recommendation for a camera and monitor to improve visibility.  The defendants then consulted the drivers.  They had a system of ‘safety champions’ amongst the workforce, and there were monthly safety meetings.  The response, however, was that the drivers strongly rejected the proposals for joysticks, which were disliked, either generally or at least in the model proposed.  They also rejected the proposed installation of cameras and monitors and preferred moving the cabs on some cranes backwards. These general views amongst the drivers were shared by the claimants individually;  none said that he would have welcomed Mr Samuel’s changes but felt constrained by the majority view not to say so.  The result was that the proposed change of controls to joysticks was not made, nor were cameras installed.  Although one cab was moved back as far as could be done, the judge found that that had no effect on the problem.
9.	Meanwhile in 2007 the defendants asked the works doctor, Dr Jones, to consider the risks.  After putting himself into the driving position, he reached conclusions which foreshadowed those at which the judge later arrived, namely that difficult postures were adopted by the drivers in some cases, which could accentuate symptoms in an employee with a lumbar spine condition but would not cause such a condition if not already present.  A similar view was reached by an HSE inspector with specialist training in ergonomics who looked at the cranes in 2007.  He made recommendations which seem to have included some which were similar to those of Mr Samuel. Thus the ample evidence for the judge’s conclusions as to the risk of some backache, set out above at [4] and [5], included the evidence of the drivers and of Mr Hinkley, one of the experts called, together with the findings of Mr Samuel, Dr Jones and the HSE inspector, plus his own view of the scene. 
10.	The claimants advanced three different bases on which the defendants were said to be liable to them.  They were (1) failure to conduct a suitable and sufficient risk assessment, in breach of regulation 3 of the Management of Health and Safety at Work Regulations 1999; (2) failure to ensure that the controls of the cranes were not in a position which exposed the driver to a risk to his health or safety, in breach of regulation 17(2) of the Equipment Regulations (supra); and (3) common law negligence.
11.	Although the judge’s summary of his findings at [206(7)] contains the conclusion that the defendants carried out no risk assessment, his more detailed review of the evidence shows that they did exactly that by means of commissioning Mr Samuel in 2005.  What the judge did conclude was that they were later than they ought to have been in this; it ought to have been done in 2003.  Exactly when Mr Samuel’s report was commissioned is not clear, but the judge accordingly found that it was sought up to two years later than it should have been: see [206(12)].  However, any failure to conduct a risk assessment would not, on the facts of this case, have given rise by itself to any liability.  Here, as in many other cases, the significance of a failure to conduct a risk assessment lies in what ought to have happened if it had been carried out and attention paid to its outcome.  Here, there was indeed a risk assessment, which put the employers on notice of the risk of temporary back discomfort amongst the drivers.  The judge concluded that Mr Samuel would have said in 2003/04 what he said in 2004/05. Moreover, the judge found, at [194], that the drivers would have rejected the Samuel recommendations in 2003/04 just as they did in 2005. The timing of the risk assessment cannot accordingly found liability;  it must be established otherwise. The risk assessment would not, if carried out earlier, have led to any different action which would have reduced the incidence of temporary back pain in the drivers.  Accordingly, the other possible bases for liability must be considered – common law negligence and breach of the Equipment Regulations.
12.	The judge expressed at [195] his conclusion as to the legal consequence of the drivers’ rejection of the proposed alterations:
“Where there is a risk of serious injury, there may be a duty upon an employer to force upon an unwilling workforce changes to their working practices which the workforce opposes.  But where the risk is of injury of a minor type (such as the back symptoms in this case) I am not persuaded that the employer is in breach of duty if he takes steps to inform himself  of the remedies available, recommends those remedies to his employees, but, when the employees object to them, accedes to their wishes.”
This is clearly a conclusion relating to the claimant’s claim in common law negligence.  Although it appears, in the course of a long and detailed judgment, under the side heading “causation”, it is really a finding that the defendants acted reasonably in not imposing on employees a very unwelcome precaution when the risk of injury was limited.  Thus it is a finding that they were not negligent.  Mr Limb QC for the claimants challenges the conclusion that the defendants acted reasonably.  I agree with him that the occasions when an employer is not to be expected in the interests of safety to shoulder the decision to alter the work system, and any unpopularity which goes with that decision, will be comparatively rare.  But equally the question in all cases of alleged common law negligence is whether the employer has done what he should not have done or failed to do what he should have done.  That hinges on the test of reasonableness.  There are clearly cases where it is reasonable for a defendant employer to warn or advise, but to decide not to insist.  It is not arguable that, in assessing what is or is not reasonable, it is irrelevant how great (or how small) the risk of injury is.  Yorkshire Traction Co Ltd v Searby [2003] EWCA Civ 1856, to which we were referred in a different context, is an example of a case in which the considered resistance of the employees was relevant to whether it was unreasonable not to insist, against opposition, on installing a screen between bus driver and passengers and it was also an example of the low level of risk being relevant to the same question:  see paragraphs [33], [34] and [51]. The judge in the present case was entitled to come to the conclusion which he did.    
13.	So it is that, as foreshadowed at the outset of this judgment, this appeal depends on the Equipment Regulations. The judge dealt with them briefly.  After referring at [202] to the claimants’ argument that there was a breach since the controls were unsuitable because positioned so as to expose the drivers to a risk of injury, he said simply this at [203]:
“However, again the claimants’ case fails on causation. The way in which the cabs and controls were unsuitable could be remedied by the installation of a joystick control.  That would have been rejected by the drivers whenever suggested by the Defendant.”
Although the judge’s summary of his findings included at [206(18)] the conclusion that the defendants were not in breach of the Equipment Regulations, it is clear from the rest of his judgment that this was an elliptical expression, by which he meant that the claim under the regulations failed for want of causation.  The judge did not, in fact, decide whether there was or was not a breach of the Equipment Regulations; he decided that, even if there had been, it had not caused any injury.  
14.	Perhaps in part because of the way in which the judge placed both these two quoted paragraphs [195] and [203] under the side heading of ‘causation’, the claimants’ notice of appeal was originally cast in the very broad form of challenge to his conclusions upon causation, both in relation to common law negligence and to breach of the Equipment Regulations.  It was only after Dame Janet Smith had identified the separate issue of breach of the regulations that the argument became correctly focussed upon it.  The point is, however, clearly open to the appellants and has been fully debated before us. 
15.	I would not criticise the judge for not addressing the question of breach or no breach if it was clear that causation could not be established, so that the question was academic.  But with great respect to the judge’s careful and thorough judgment, I do not think that is this case.  The cause of the limited injuries suffered was alleged to be, in part, the position of the controls, because it was said that the positioning contributed to the backache because it was part of the reason for the drivers adopting postures which produced it. If the location of the controls did involve a breach of the regulations because it exposed the drivers to the risk of injury, there was no break in the chain of causation.  The judge has not held that the position of the controls made no difference, either to the posture or to the occurrence of backache.  If that were the proper conclusion on the facts, then there would indeed be no causative link (and indeed perhaps no breach).  He appears to have held that the chain of causation was broken by the refusal of the drivers to agree to the change of controls to joysticks – see his paragraph [203] quoted above.  But this by itself could not break the chain of causation.  It might have done if the drivers had had a veto, or the power to prevent access to the cranes so that the modification simply could not be carried out.  But they had neither.  Nor can one describe their decision, considered as it no doubt was and persuasive to the employers as it no doubt was, as novus actus interveniens. That is because clearly the employers had the power to override it.  There is no separate and independent cause of the injury intervening between any breach by the employers and the uncomfortable backs so that the latter would inevitably have happened anyway.  For the same reason the case cannot be brought within the limited exception applicable where the conduct of the employee is the sole cause of a breach of health and safety regulations:  see Ginty v Belmont Building Ltd [1959] 1 All ER 414 and Boyle v Kodak [1969] 1 WLR 661. Indeed, contributory negligence was neither pleaded nor asserted. For the defendants, Mr Nolan QC conceded in oral argument that if the Equipment Regulations applied, and if there was a breach, the drivers’ rejection of the post-Samuel proposals could not break the chain of causation.  He was right to do so.  It follows that the judge’s conclusion that the claim under the regulations failed for want of causation cannot stand.  
16.	Since the judge did not feel it necessary, because of this error about causation, to address whether there was a breach of the regulations, the question arises whether his primary findings of fact lead inevitably to the conclusion that there was such a breach.  If they do, we must substitute judgment for the claimants under the regulations.  If they leave the question uncertain, we must remit it to the trial judge.  Before examining the exact findings of primary fact which the judge made, it is convenient to consider the submissions of Mr Nolan QC, for the defendants, that in any event it was not open to the claimants to rely on regulation 17(2).  If those submissions are made out, the findings of primary fact need not be scrutinised, since in that event they could not lead to a finding of liability for breach.
17.	Mr Nolan contended that it was not open to the claimants to rely on regulation 17(2) for three reasons:
i)	because a case relying on the positioning of the controls (which he describes as ‘the joystick case’) was not advanced at trial;		and
ii)	because on their proper construction the regulations apply only to dangers arising from the operator or others coming into contact with dangerous machinery or equipment, and not to dangers arising from inadequate ergonomics in the design or positioning of the controls;
iii)	because even if the regulations apply, the attitude of the drivers made it ‘necessary’ for the controls to remain as they were.  
18.	I agree that it does not seem to have been the claimants’ case in the court below that it was failure to use joystick controls which established liability.  That may in part have been because they were conscious of the fact that they had objected to joysticks, or at least to the model proposed, or it may have been a consequence of the rather ‘scattergun’ approach with which the multiple complaints made seem to have been advanced.  But although that is true, the claim under the Equipment Regulations was clearly pleaded and the judgment shows that it was an unmistakeable plank of the claimants’ case.  Despite the persuasiveness of his advocacy, Mr Nolan’s categorisation of that claim as ‘the joystick claim’ is a misdescription.  The complaint under the regulations is not a complaint that there was no joystick.  It is simply that the position(s) of the controls exposed the drivers to risk to health and safety via the posture which they entailed.  That is, correctly, how the judge summed up the argument for the claimants at [202].  How, if the position of the controls did expose the drivers to such a risk, a breach might have been avoided is not part of the claim.  If a breach of regulation 17(2) is made out, it is made out whatever the possible means of avoiding it might be. It is not incumbent on the claimant to prove a positive case as to how it ought to have been avoided.  In the present case, it was true that the particular method proposed by Mr Samuel and the defendants for addressing the posture problem would have entailed replacement of the rotary controls by a joystick, but it was not essentially the type of controls which was said to cause the posture problem;  it was where they were.  For the same reason it does not advance the defendants’ case to say that there was no evidence led below to the effect that a joystick, if substituted, would be in a different place.  In fact it would seem to be implicit in the proposal that there would only be a single control rather than several, so that it would in fact have been, it seems, in a different place from at least some of those it replaced.  But whether that is so or not, the regulations prohibit controls whose position poses a risk, whatever the type of control, and whether a joystick, or rotary control, or something else.  If the position of the controls occasioned a posture which exposed the claimants to risk of injury, then that would remain the case even if, hypothetically, a joystick control would have occasioned a similar posture, and the case on regulation 17(2) would be the same.  Mr Nolan’s first objection accordingly fails.  
19.	The first limb to Mr Nolan’s second, construction, point is the contention that regulation 17(2) is aimed at the positioning of the controls and not at their ergonomic design.  With that proposition I agree, but the complaint in this case is about the positioning, not the design, of the controls.  The second limb demands more detailed consideration.  Mr Nolan submits that the whole structure of the regulations, and of the EU directive which it transposes, is aimed exclusively at the risk of either the operator or someone else getting into a danger zone involving contact with the equipment.  
20.	Council directive 89/655/EEC was the second individual directive issued in accordance with a general health and safety at work directive (89/391/EEC), and was in force until 2009.  Article 4(1)(a) of this individual directive required that an employer must obtain and/or use equipment which complies with the minimum requirements set out in the annex to the directive.  It is thus to the terms of the annex which Mr Nolan points.  Paragraph 2.1 of the annex provided in part as follows:
“Except where necessary for certain control devices, control devices must be located outside danger zones and in such a way that their operation cannot cause additional hazard.  They must not give rise to any hazard as a result of any unintentional operation.”
This directive was superseded in 2009 by Directive 2009/104/EC, but it was constructed in a similar manner and the terms of its annex, at 2.1, were identical except for the substitution of the word ‘pose’ for ‘cause’ in the passage cited above.   It is certainly clear that one of the health and safety risks which these provisions aimed to avert was that of people coming into harmful contact with the machinery or equipment.  That is clear from the reference to danger zones and also from the next following provision which requires the controls to be in such a position that the operator can see whether there is any other person in the danger zones, or, failing that, that there is an audible or visible warning to such persons. It may well be that that is the principal kind of danger which may be entailed by badly positioned controls.   But I do not agree that the terms of these two annexes demonstrate that the intention was confined to this risk.  It seems to me that the paragraphs numbered 2.1 deal with three different risks.  The first is contact with dangerous machinery.  The second is ‘any additional hazard’.  The third is risk of unintentional operation, which might involve contact with machinery but might also involve other risks, such as the ejection of a workpiece or the destabilisation of the place where someone is standing.  The second of these risks is, as it seems to me, clearly wide enough to cover a risk such as that posed in the present case by the resultant posture which the driver had to adopt.  For the same reason, the same submission fails when founded on the wording of the Equipment Regulations.  Some of them are indeed clearly aimed at the risk of contact with dangerous machinery.  Regulation 15 is an example.  It requires that controls be available and accessible to bring the machine to a safe condition, and to a stop if necessary.  Regulation 17(3), which transposes the directive’s requirement for the operator to be able to see that no person is in a dangerous place, is another example. But regulation 17(2) is more widely expressed, just like paragraph 2.1 of the directive.  Nor do I see any reason why regulation 17(2) should be limited to avoiding contact with dangerous machinery.  The position of controls is capable of giving rise to other risks to safety, such as, perhaps, having to stretch to the extent that one might fall from a platform, or having to adopt repeated reaching manoevres of a kind which can lead to repetitive strain injury.  The posture said to be attributable to the position of the controls in the present case is a further example.  
21.	Mr Nolan invited our attention to regulation 4, which provides a separate requirement that working equipment be ‘suitable’ for its purpose.  Regulation 4(2) provides:
“In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises in which that work equipment is to be used and any additional risk posed by the use of that work equipment.”
He contends that the last words “and any additional risk posed by the use of that equipment” would be rendered unnecessary if regulation 17(2) covers the risk of backache here in question.  But the concept of ‘suitability’ of the equipment generally, with which regulation 4 is concerned, is different from the specific requirements as to controls contained in regulation 17(2).  This court held in Marks & Spencer v Palmer [2001] EWCA Civ 1528 and in  Yorkshire Traction Co Ltd v Searby (see [12] supra) that it imported consideration of the level of risk.  But in any event, the fact that a particular risk might be covered both by a specific regulation and by a general one does not mean that the former does not mean what it says. 
22.	Mr Nolan took us also to the Health and Safety (Display Screen Equipment) Regulations 1992; 1992 No 2792.  These relate to ‘workstations’, which are defined to mean assemblies including a display screen and other accessories.  Regulation 3 requires that workstations meet the requirements of the schedule to the regulations, and the schedule in turn lays down both general and specific requirements.  An example of the former is that the use of the equipment must not be a source of risk for users.  An example of the latter is that the image on the screen must be stable and not flickering and that the screen must tilt and swivel easily.  Mr Nolan’s submission was that some of these provisions would not be necessary if regulation 17(2) of the Equipment Regulations carried the meaning for which the claimants contend.  Reference to these separate regulations does not assist in the construction of the Equipment Regulations.  First it is entirely sensible for there to be separate regulations for computers and similar workstations without them shedding any light on the extent of the Equipment Regulations.  Second, the many very specific requirements of the Display Screen Equipment Regulations go a good deal further than the terms of regulation 17(2) can possibly do, and they apply to things which could not be called the controls of equipment, such as the screens.  Thirdly, by regulation 1(4), drivers’ cabs and control cabs for vehicles or machinery are expressly excluded from the Display Screen Regulations.  
23.	The argument from the suggested redundancy of other, different, regulations, fails.  For the reasons set out, so does Mr Nolan’s second, construction, objection generally.  Regulation 17(2) can apply to a risk of injury by backache if it arises from the positioning of controls of equipment covered by the Equipment Regulations.  
24.	The defendants never advanced the exception of necessity contained in the words of regulation 17(2).  It ought, if it were relied upon, to have been pleaded, or at least the facts justifying the contention should have been.  But even if that omission is overlooked, or could have been cured by later amendment (which was also never suggested), it is clear that the attitude of the drivers to the proposals which followed Mr Samuel’s report cannot possibly constitute necessity within the meaning of regulation 17(2).  Their attitude was certainly something which a reasonable employer would take into account, but the employer’s clear powers either to override the objection, or to devise an alternative means of avoiding the risk to the drivers, demonstrate that necessity could never be made out.  Mr Nolan’s third objection accordingly also fails.  
25.	That means that the judge’s findings of primary fact must be examined.  He recited seriatim the complaints which the various drivers made about their posture.  The evidence was complicated by the fact that some complained of pain elsewhere than in the back, which alone the judge accepted as attributable to the postures adopted.  It was also complicated by the fact that not all the drivers adopted the same posture, even in the same crane let alone in different ones.  What is clear is that the principal complaint about the posture was that it involved leaning forward for long periods.  That, it can readily be seen, might cause backache.  The judge summarised at [40] the evidence of Professor Wilson, an orthopaedic surgeon called for the claimants;  he did so in these terms: 
“Professor Wilson’s view is that when a driver leans forward, unless he is strong enough and sufficiently well-trained to hold the back, there will be flexion of the lumbar spine and the muscle groups holding the spine will be in tension.  If that posture is held long enough, it will cause pain and when the muscles relax the pain will not go away immediately.  The effect is cumulative.”
That appears to relate to leaning forward.  It was not the position of the controls which led to the need to lean forward; it was the need to look out and down and past the structure of the cab.  But some of the drivers described the posture which they adopted more specifically.  An example was Mr Willock, whose evidence the judge rehearsed at [41], immediately following the paragraph just quoted:
“He complains that it was necessary constantly to lean forward and to look downwards, whiles sitting on the edge of the seat with his arms outstretched on either side operating the control levers.”
Likewise, Mr Nicholas described, to the doctor, leaning forward at 45 degrees with his arms up and just slightly behind him.  So did the third claimant whose case the judge did not reject upon grounds of medical causation, Mr Price.  
26.	The question is whether the judge has found that, apart from the principal problem occasioned by the leaning forward and having to hold that position, the location of the controls somewhat behind the drivers was also a contributory factor, more than de minimis, in causing a risk of, and in some cases the occurrence of, backache.  It seems to me that it is uncertain whether this question has been addressed.  The relevant passages of the judgment are the following:
“[140]  The evidence establishes that crane drivers on cranes 1 and 18 do adopt a posture which involves their leaning forward significantly and looking down.  At the same time they have their arms extended to reach the controls situated on either side.  …None of the expert witnesses contends that such a posture is not capable of causing muscular pain.
[164]   It follows from what I have said that I accept that drivers of cranes fitted with a centre cabin (cranes 1 and 18) may adopt an awkward posture for a significant time during the course of a shift.  That posture involves leaning forward at the waist and neck and at the same time stretching the arms to left and right to operate the controls.  It is the combination of those positions of which Mr Willock, Mr Nicholas and Mr Price complain.
[206(1)]  I find that the posture adopted by drivers of the centre cab cranes, cranes 1 and 18, is capable of causing backache.”
It is certainly possible that the judge was finding that it was not only the leaning forward, but also the stretching of the arms backwards and outwards, which not only made for an awkward posture, but also contributed to the occurrence of backache.  As Mr Limb reminded us, such a finding could have found support in part of the evidence of Professor Wilson, if the judge accepted it in full.  He had certainly said (at A/2227) in the course of cross examination, using himself as an example, that if he were to sit down and bend forward and hold that position, and put his arms behind his back and allow his spine to flex, then he would very quickly run into a situation where he was feeling some low back pain.  But there is great difficulty in an appellate court taking a single passage in a long trial and treating the judge as having accepted it.  The judge may have accepted from this evidence that it was not just the leaning forward but also the position of the controls which led to backache, but he may also have been less than satisfied that the position of the controls contributed to the pain. There was, plainly, no complaint about upper limb pain, which might in other circumstances have been produced if there was excessive stretching of the arms. The judge’s own summary of Professor Wilson’s evidence, at [40] as set out above, referred only to the leaning forward.  His summary, at [121]-[123], of the evidence of Mr Hinkley, the claimants’ ergonomic expert, referred only to leaning forward. Whilst paragraph [164] refers to the combination of forward leaning and reaching backwards, it does so by way of summary of what the drivers complained about, rather than by way of a finding that such combination is what led to backache.  Nor would it be altogether surprising if the judge did not address the issue precisely when he had formed the view that the claim under regulation 17(2) failed for want of causation and when he had a number of other possible bases of claim to deal with.    
27.	For these reasons I conclude that it is not clear that the judge addressed the critical issue upon regulation 17(2), as it can now be seen to be.  In my view, the claimants’ appeal must be allowed because of the causation error identified at [15] above, but the case must be remitted to him to decide whether or not the claimants have established that the location of the controls contributed, in a way which was greater than de minimis, to the risk of, and occurrence of, backache, via the awkward posture which they entailed.  If it did, there was, in my view, a breach of regulation 17(2) and judgment for the claimants upon that basis, but only upon that basis, must follow.
Mr Justice David Richards:
28.	I agree.
The Rt. Hon. Sir Alan Ward
29.	I also agree.