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Archive for August, 2020

Health and Safety at Work Act: leading cases (2)

HEALTH AND SAFETY AT WORK ACT LEADING CASES (2)

REAL RISK

Death of child

R v Porter (2008)

P was the headmaster of a private school aged 3 to 16. The school had two playgrounds, access between which was by a set of steps. In July 2004 a number of children were in both playgrounds during morning break. There was one teacher on duty in the upper playground. K, a boy aged  three, went down the steps and jumped from the fourth from bottom step. He fell and injured his head. He was taken to hospital where he contracted MRSA and died.

P was charged under section 3 of the 1974 Act. It was alleged that he had exposed the boy to the risk of falling from the flight of steps. He was convicted and fined £12,500 plus £7500 costs. He appealed to the Court of Appeal. The appeal was allowed. The court stated the following:

  • The conviction was unsafe.
  • The prosecution had to establish that the accused had failed to ensure that a child had not been exposed to risk to his safety by the conduct of an undertaking.
  • The risk which the prosecution had to prove was a real risk as opposed to a fanciful or hypothetical risk.
  • There was no objective standard which applied to every case but there would be important factors which would indicate one way or the other whether there was such a risk.
  • There was nothing wrong with the construction of the steps themselves and there had been no previous accidents despite the fact that there were numerous steps from which a child might have chosen to jump.
  • The fact that risk was a part of everyday life went to the issue of whether an injured person had been exposed to real risk by the conduct of the operation in question.

SAFETY RISK

Race discrimination

Amnesty International v Ahmed (2009)

A, a woman of North Sudanese origin, was employed by Amnesty International, She applied for promotion to the post of Sudan Researcher. Her promotion was denied because Amnesty took the view that the appointment of a person of A’s ethnic origins would compromise its perceived impartiality and would expose her to a safety risk when visiting Sudan and Eastern Chad. A resigned and complained of direct race discrimination. The employment tribunal upheld her complaint and made the following points:

  • But for her ethnic origin, A would have been appointed.
  • Her ethnic origin was the sole reason for the withdrawal of the appointment.
  • The decision of the employer had not been taken purely on health and safety grounds.
  • Race was the driving factor behind the decision.

Amnesty appealed to the Employment Appeal Tribunal (EAT) which dismissed the appeal and made the following points:

  • The basic question in direct discrimination cases was what the grounds were for the treatment complained of.
  • The fact that the employer’s reason for refusing promotion was its concern about impartiality and safety was irrelevant.
  • A had been discriminated against on the ground of her ethnic origins.
  • If there was a risk in sending A to Eastern Chad, the employer could avoid that risk by not sending her there.
  • What was going on in the head of the putative discriminator was irrelevant.

 The EAT commented that it felt some unease at being required to reach a conclusion which might have implications for other employers whose employees were required to work abroad in situations of acute political or ethnic tension. No doubt such cases were rare, but where they did occur, employers would be in a highly invidious position.

Liability of company: all reasonable precautions taken

R v Gateway Foodmarkets Ltd (1996)

An employee of G Ltd fell down a lift shaft at one of its stores and suffered fatal injuries. Maintenance of the lift had been contracted out to a reputable and experienced contractor. The lift was faulty. An electrical contact had to be freed by hand and it had become the practice for personnel to do this regularly. The worker who had died had attempted to free the contact when he fell through a trap door which had been left open by the contractor. G Ltd was prosecuted under section 2 of the 1974 Act. At first instance the Crown Court ruled that G Ltd was liable because section 2 imposed strict liability, subject to reasonable practicability. The company’s employees had caused a breach of the section. G Ltd appealed to the Court of Appeal.

The appeal was dismissed. The court stated that it was overwhelmingly clear that section 2 should be interpreted to impose liability on employers whenever there was a failure to ensure the health, safety and welfare of employees. It was not necessary for the prosecution to prove criminal intent. In the present case, the failure to take all reasonable precautions had been at store management level. This was attributable to the company, even though at senior management or head office level, the company had taken all reasonable precautions.

Details of offences charged

Maersk Co Ltd v Vannet (1997)

M Co was charged with offences under sections 2 and 3 of the 1974 Act. The charges alleged that a skip operated with the company, which should have been lifted by means of placing the eyes of lifting slings on trunnions on the side of the skip, had been unsuitable. In the course of lifting the skip two employees had been injured. The company objected to the charges on the basis that it did not specify the defect in the system of work, plant or equipment which gave rise to the risk.

The Scottish court ruled that the statement of the charges was sufficient to give notice of the existence and nature of a risk of injury to employees and persons not employed by the accused.

The charges contained allegations as to the context in which the accident happened. The prosecution had given fair notice of the general manner in which the risk arose. It was not necessary for the prosecution to go on to specify or explain how it was that the risk in question came to emerge.

Section 3: actual control

RMC Roadstone Products Ltd v Jester (1994)

R Ltd was engaged in manufacturing road building materials. It engaged two independent contractors, D and P, to replace asbestos sheets on R Ltd’s premises. D and P were told to use old asbestos sheets from the roof of a disused factory next to R Ltd’s premises. They were told to remove the sheets. A front-loading shovel was supplied by R Ltd. It was found by the magistrates’ court that R Ltd could give directions to D and P on the way in which the work was done, but that in fact they were left to do it in any way they chose. R Ltd did not provide a safe system of work and was not under a duty to do so.

While D was removing asbestos sheets from the roof, he fell through a skylight and was killed. R Ltd was prosecuted and convicted under section 3 of the 1974 Act for failing to discharge its duty to conduct its undertaking in such a way that persons not in its employment were not exposed to risks to their health. R Ltd appealed to the Divisional Court.

The appeal was allowed. The Divisional Court ruled as follows:

  • The prosecution had to establish three matters for liability under section 3. First, the accused must be an employer; second, the activity or state of affairs giving rise to the complaint must fall within the scope of the accused’s conduct of its undertaking; and there must be a risk to the health and safety or persons other than employees.
  • The word “undertaking” meant “business or enterprise”. It was inconceivable that Parliament should have intended that there should be criminal liability where an employer had no control. It was necessary for an employer either to exercise actual control or to be under a duty to do so. Where an employer left an independent contractor to work in the way which he saw fit, then that work should be outside the scope of the “undertaking”.
  • If R Ltd was under a duty to provide a safe system of work for the independent contractors, then its duty under the Act would extend beyond that imposed by the civil law. The Act was not intended to go beyond the common law.
  • The magistrates had not been entitled to find that D’s work in removing the sheets was within the scope of R Ltd’s conduct of its undertaking.

Note: one difficulty with this case is that it may mean that employers can avoid all responsibility for the safety of independent contractors by refusing to give instructions on how work is done. On the other hand, if an employer gives directions on how the work is to be done, then that employer will remain liable under the Act. 


Health and safety general definitions (3)

Health and safety general definitions (3)

PRACTICABLE

Stricter standard

Adsett v K & L Steel Founders and Engineers Ltd (1953)

A worked in a foundry. His job was to shovel various casting sands and compounds through a grate onto a conveyor belt below. A freely breathed in the resulting dust. He contracted pneumoconiosis. The employer had installed a dust extractor near the conveyor as soon as the idea was thought of. This was after the onset of A’s disease and was too late to save him from disablement. The issue in the case was the meaning of the word “practicable”. The ordinary dictionary definition was “possible to be accompanied with known means or resources” or “capable of being carried out in action”.

The High Court found that the word “practicable” on its own connoted a stricter standard than “reasonably practicable” and might men that issues of cost should be eliminated. But no measure could be “practicable” if it was not within current knowledge and invention. The employer was not in breach of statutory duty.

On appeal to the Court of Appeal it was argued that the technology to install and extractor did exist but the employer had not thought of this particular application. The court rejected this argument, holding that to be “practicable” meant that a measure had to be known for its application by people in the industry, and especially by experts.

Moorcroft v Thomas Powles & Sons Ltd (1962)

M, a plasterer, was working on a flat roof. The roof had an opening of five feet by three feet. The opening had an upward projecting timber edge around its perimeter. M stepped backwards and fell through the opening. He was injured. The employer was prosecuted for breach of the relevant regulations which stated that all such openings should be made safe by the provision of guardrails. If compliance with the regulations was impracticable, then such measures as were “practicable” should be taken.

The High Court found that “practicable” imposes a stricter standard than “reasonably practicable”. “Practicable” excludes considerations of cost. In the present case, it would have been practicable to have put a board over the opening. The simplicity of this measure overrode the necessity for M to work quickly so as to cover the roof before the weather changed.

PROCESS

R v A1 Industrial Products plc (1987)

A1 employed three workers to demolish a large kiln in its factory. Two workers used respirators throughout the operation while the third used a respirator only after the sides of the kiln had been pushed in and a large cloud of asbestos dust was raised. Samples of the dust were found to contain such a concentration of asbestos as to be liable to cause danger to workers’ health. The company was found guilty of failing to provide approved respiratory equipment for use in a factory “process” in which asbestos dust was likely to escape. This decision was reversed by the Court of Appeal which ruled that the demolition of the kiln was not a “process”.

Nurse v Morganite Crucible Ltd (1989)

MC Ltd had demolished two large driers which contained asbestos. It had not provided respiratory equipment, did not store the broken parts in suitable receptacles and failed to keep that part of the factory where the parts were being broken up reasonably clean. The company was convicted by the magistrates’ court of a number of regulatory offences. Its appeal to the Crown Court was dismissed. Its subsequent appeal to the Divisional Court succeeded. The prosecution appealed to the House of Lords.

The Lords decided the following:

  • The appeal was allowed.
  • In R v A1 Industrial Products, the Court of Appeal had stated that it was wrong to extend the meaning of “process” beyond some manufacturing process or continuous and regular activity carried on as a normal part of the operation of a factory.
  • If that was correct, it would limit statutory protection. It was difficult to see how the statutory protection could be applied to normal building operations or to a work of engineering construction.
  • The word “process” should be used in the broader sense of including any activity of a more than minimal duration involving the use of asbestos.
  • Obviously, the single act of knocking a nail into an asbestos panel could not be considered a “process”. There had to be some degree of continuity and repetition of a series of acts in order to constitute a “process”.
  • On the facts of the A1 Industrial Products case and of the present case, the activity went on over a period of days involving materials containing asbestos, and was a “process”.

REASONABLY PRACTICABLE

Quantum of risk test

Edwards v National Coal Board (1949)

Mine owners were required by legislation to take all “reasonably practicable” steps to make sure that all travelling roads in mines were reasonably safe. E was killed when a section of road gave way. The section had no timber supports. About half of the whole length of the road was shored up. The NCB argued that the cost of shoring up all roads in every mine was prohibitive compared with the risk.

The Court of Appeal found that the question at issue was not the cost of shoring up all roads in very mine operated by the NCB. The issue was the cost of making safe the section of road which fell. Some roads were secure and showed no signs of falling. Others might already have fallen and had already been repaired. This particular section was already supported by time over half its length. The cost of making it completely safe was not great compared to the risk of injury and loss of life. The safety measures were entirely practicable and were in common use. It was also reasonable that they be taken when the balance was struck between the quantum of risk and inconvenience of the available safety measures.

Marshall v Gotham Co Ltd (1954)

M, an employee of G Co, was killed by a roof fall while working in the company’s gypsum mine. Before work began, the roof had been inspected by tapping it with a hammer. The roof fall had been caused by an unusual geological condition known as “slickenside” which was undetectable. M’s wife claimed compensation from the employer.

The House of Lords decided that the employer was not liable. M’s death had not been caused by any failure by the employer to take reasonable steps to secure the roof.

Failure to fit seat belts

Chandler v Gatwick Handling Ltd (1997)

C worked as a baggage handler at Gatwick Airport. His employer had not fitted seat belts to the lorries used by C and his colleagues. In January 1994 C was thrown out of a lorry when the door flew open. His shoulder was dislocated. He claimed compensation from the employer on the basis of negligence, in particular:

  • Failing to inspect or maintain the door
  • Failing to provide or require employees to use seat belts.

The Crown Court decided the following:

  • The maintenance system was reasonable
  • The door had not been defective and had not opened of its own volition
  • There was no legal requirement for the lorries to be fitted with seat belts
  • In the circumstances, it would be impracticable for the employer to fit and require the wearing of seat belts
  • It was not reasonable to expect the employer to fit seat belts or to issue instructions that seat belts should be worn at all times
  • The employer was not liable.

Slippery floor

Vinnyey v Star Paper Mills Ltd (1965)

V slipped while attempting to move a pallet while cleaning up a floor on which slippery liquid had accidentally been poured. He had been told how to do the work and had been provided with a forklift truck to move pallets and squeegee mops to clean up the mess.

The High Court found that the employer was not liable in negligence. Only basic instructions were needed for such a simple job. These had been given and there was no breach of duty.

Crushing injury

Jenkinson v Brook Motors Ltd (1985)

J was employed as a handyman in a factory. He was asked to make a pair of tongs. This involve riveting which needed the help of a workmate. J attempted to do the work himself, using a hydraulic press. He crushed his thumb and claimed compensation from his employer. The Court of Appeal found the employer liable in negligence. It had failed to set up a safe system of work. Despite being an experienced worker, J was entitled to be supervised and to have the benefit of a properly thought out system of work. Damages were reduced by one-third for J’s contributory negligence


Health and safety general definitions (3)

Health and safety general definitions (3)

PRACTICABLE

Stricter standard

Adsett v K & L Steel Founders and Engineers Ltd (1953)

A worked in a foundry. His job was to shovel various casting sands and compounds through a grate onto a conveyor belt below. A freely breathed in the resulting dust. He contracted pneumoconiosis. The employer had installed a dust extractor near the conveyor as soon as the idea was thought of. This was after the onset of A’s disease and was too late to save him from disablement. The issue in the case was the meaning of the word “practicable”. The ordinary dictionary definition was “possible to be accompanied with known means or resources” or “capable of being carried out in action”.

The High Court found that the word “practicable” on its own connoted a stricter standard than “reasonably practicable” and might mean that issues of cost should be eliminated. But no measure could be “practicable” if it was not within current knowledge and invention. The employer was not in breach of statutory duty.

On appeal to the Court of Appeal it was argued that the technology to install and extractor did exist but the employer had not thought of this particular application. The court rejected this argument, holding that to be “practicable” meant that a measure had to be known for its application by people in the industry, and especially by experts.

Moorcroft v Thomas Powles & Sons Ltd (1962)

M, a plasterer, was working on a flat roof. The roof had an opening of five feet by three feet. The opening had an upward projecting timber edge around its perimeter. M stepped backwards and fell through the opening. He was injured. The employer was prosecuted for breach of the relevant regulations which stated that all such openings should be made safe by the provision of guardrails. If compliance with the regulations was impracticable, then such measures as were “practicable” should be taken.

The High Court found that “practicable” imposes a stricter standard than “reasonably practicable”. “Practicable” excludes considerations of cost. In the present case, it would have been practicable to have put a board over the opening. The simplicity of this measure overrode the necessity for M to work quickly so as to cover the roof before the weather changed.

PROCESS

R v A1 Industrial Products plc (1987)

A1 employed three workers to demolish a large kiln in its factory. Two workers used respirators throughout the operation while the third used a respirator only after the sides of the kiln had been pushed in and a large cloud of asbestos dust was raised. Samples of the dust were found to contain such a concentration of asbestos as to be liable to cause danger to workers’ health. The company was found guilty of failing to provide approved respiratory equipment for use in a factory “process” in which asbestos dust was likely to escape. This decision was reversed by the Court of Appeal which ruled that the demolition of the kiln was not a “process”.

Nurse v Morganite Crucible Ltd (1989)

MC Ltd had demolished two large driers which contained asbestos. It had not provided respiratory equipment, did not store the broken parts in suitable receptacles and failed to keep that part of the factory where the parts were being broken up reasonably clean. The company was convicted by the magistrates’ court of a number of regulatory offences. Its appeal to the Crown Court was dismissed. Its subsequent appeal to the Divisional Court succeeded. The prosecution appealed to the House of Lords.

The Lords decided the following:

  • The appeal was allowed.
  • In R v A1 Industrial Products, the Court of Appeal had stated that it was wrong to extend the meaning of “process” beyond some manufacturing process or continuous and regular activity carried on as a normal part of the operation of a factory.
  • If that was correct, it would limit statutory protection. It was difficult to see how the statutory protection could be applied to normal building operations or to a work of engineering construction.
  • The word “process” should be used in the broader sense of including any activity of a more than minimal duration involving the use of asbestos.
  • Obviously, the single act of knocking a nail into an asbestos panel could not be considered a “process”. There had to be some degree of continuity and repetition of a series of acts in order to constitute a “process”.
  • On the facts of the A1 Industrial Products case and of the present case, the activity went on over a period of days involving materials containing asbestos, and was a “process”.

REASONABLY PRACTICABLE

Quantum of risk test

Edwards v National Coal Board (1949)

Mine owners were required by legislation to take all “reasonably practicable” steps to make sure that all travelling roads in mines were reasonably safe. E was killed when a section of road gave way. The section had no timber supports. About half of the whole length of the road was shored up. The NCB argued that the cost of shoring up all roads in every mine was prohibitive compared with the risk.

The Court of Appeal found that the question at issue was not the cost of shoring up all roads in very mine operated by the NCB. The issue was the cost of making safe the section of road which fell. Some roads were secure and showed no signs of falling. Others might already have fallen and had already been repaired. This particular section was already supported by time over half its length. The cost of making it completely safe was not great compared to the risk of injury and loss of life. The safety measures were entirely practicable and were in common use. It was also reasonable that they be taken when the balance was struck between the quantum of risk and inconvenience of the available safety measures.

Marshall v Gotham Co Ltd (1954)

M, an employee of G Co, was killed by a roof fall while working in the company’s gypsum mine. Before work began, the roof had been inspected by tapping it with a hammer. The roof fall had been caused by an unusual geological condition known as “slickenside” which was undetectable. M’s wife claimed compensation from the employer.

The House of Lords decided that the employer was not liable. M’s death had not been caused by any failure by the employer to take reasonable steps to secure the roof.

Failure to fit seat belts

Chandler v Gatwick Handling Ltd (1997)

C worked as a baggage handler at Gatwick Airport. His employer had not fitted seat belts to the lorries used by C and his colleagues. In January 1994 C was thrown out of a lorry when the door flew open. His shoulder was dislocated. He claimed compensation from the employer on the basis of negligence, in particular:

  • Failing to inspect or maintain the door
  • Failing to provide or require employees to use seat belts.

The Crown Court decided the following:

  • The maintenance system was reasonable
  • The door had not been defective and had not opened of its own volition
  • There was no legal requirement for the lorries to be fitted with seat belts
  • In the circumstances, it would be impracticable for the employer to fit and require the wearing of seat belts
  • It was not reasonable to expect the employer to fit seat belts or to issue instructions that seat belts should be worn at all times
  • The employer was not liable.

Slippery floor

Vinnyey v Star Paper Mills Ltd (1965)

V slipped while attempting to move a pallet while cleaning up a floor on which slippery liquid had accidentally been poured. He had been told how to do the work and had been provided with a forklift truck to move pallets and squeegee mops to clean up the mess.

The High Court found that the employer was not liable in negligence. Only basic instructions were needed for such a simple job. These had been given and there was no breach of duty.

Crushing injury

Jenkinson v Brook Motors Ltd (1985)

J was employed as a handyman in a factory. He was asked to make a pair of tongs. This involve riveting which needed the help of a workmate. J attempted to do the work himself, using a hydraulic press. He crushed his thumb and claimed compensation from his employer.

The Court of Appeal found the employer liable in negligence. It had failed to set up a safe system of work. Despite being an experienced worker, J was entitled to be supervised and to have the benefit of a properly thought out system of work. Damages were reduced by one-third for J’s contributory negligence.