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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. 


Health and safety general definitions (2)

 Health and safety: general definitions (2)

IN THE COURSE OF EMPLOYMENT

Work away from employer’s premises

General Cleaning Contractors Ltd v Christmas (1952)

C was cleaning a sash window at premises away from the employer’s office. The top frame of the sash window slipped downwards, trapping his fingers. He let go of his had hold on the lower frame and fell from the window sill on which he was standing. He was injured and claimed compensation from his employer.

The employer was found liable for its failure to implement a safe system of work even though the premises at which the work was done was some distance from its office.

Disobeying instructions

National Coal Board v England (1954)

E was a coal miner. Against clear instructions and statutory regulations he assisted a shotsman to set up shot blasting. He coupled up wires which were part of the detonator mechanism. If he had been obeying his instructions he would have been well out of the way. The employer did not know that miners often helped a shotsman in this way. The shotsman thought that E had moved to a safe place. He detonated the explosive. E was very close to the explosion and was injured. He claimed compensation on the basis of the employer’s liability for the negligence of a co-worker. The employer’s defence was that E had acted entirely outside the scope of his employment in helping the shotfirer and that this had been in direct disobedience of working instructions and an infringement of coal mining legislation. This put E’s act outside the scope of his employment.

The House of Lords disagreed. E had been carrying out the work of a miner but doing it in a wrong way. It could not be said that in acting against instructions he was engaged in work totally outside his employment. The employer was liable but E’s compensation was reduced because of his contributory negligence.

Injury during journey from home to appointment

Nancollas v Insurance Officer (1985)

N was a disablement resettlement officer. He had to cover a wide area. On one day he had to travel from his usual office in Worthing to the Guildford office for a case conference about a disabled man. At the conference it was decided that he should interview the man at Aldershot on the following day. He drove directly from his home to Aldershot. During this journey he was involved in an accident and suffered neck injuries. He claimed industrial injury benefit. His entitlement depended on whether he was acting in the course of his employment at the time of the accident.

The Court of Appeal made the following points:

  • Each case depended on its own facts. There were no hard and fast rules.
  • Earlier cases which concentrated on the question of whether a worker was carrying out his employer’s instructions at the time had been, to a large extent, overtaken by developments in society generally. They had been decided at a time when employees were truly servants of their master.
  • The employment relationship was now different. It was no longer based on orders and instructions, but on requests and information. Contractual rights and duties were supplemented by mutual expectations of co-operation.
  • In older cases it had been held that employees were not in the course of employment while on their way to work from home. But it was a totally different case to be on the way from home to an appointment away from the office.
  • In a true sense, the road was the place of work and the employee was in the course of his employment while driving to his employment.
  • It would be a nonsense to allow a claim from someone who was injured on these facts while on his way from his normal office, but to disallow a claim just because the person had chosen to go to his appointment straight from home.     

Travelling between two places of work

Smith v Stages and Darlington Insulation Co Ltd (1988)

M was employed as a lagger at a power station. He and S, a colleague, were told to work for a week at another power station. They travelled to the other power station in S’s car. They worked a total of 19 hours and had no sleep. During the journey home, because of S’s fatigue, an accident happened which caused M to suffer serious injuries. He did not fully recover and died two years later. Proceedings were brought against S. It emerged that S had no insurance and the claim was amended to include the employer as defendant. It was alleged that S was driving the car either as the agent of the employer or in the course of his employment. At first instance, the court found that the driving had not been done in the course of S’s employment. M’s widow appealed to the Court of Appeal.

The Court of Appeal found that the journey had been made in the course of employment. The employer had authorised S to drive. The employer appealed to the House of Lords.

The Lords dismissed the appeal and made the following points:

  • An employee travelling from his ordinary residence to his regular place of work, by whatever means of transport, even if it was provided by his employer, is not acting in the course of his employment. But if he is obliged by contract to use his employer’s transport, then he is acting in the course of his employment while doing so.
  • Travelling in the employer’s time between workplaces or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces, will be in the course of his employment.
  • Receipt of wages will indicate that an employee is travelling in his employer’s time and for his benefit, and is acting in the course of his employment. In such a case, the fact that the employee might have discretion as to the mode and time of travelling, will not take the journey out of the course of employment.
  • An employee travelling in the employer’s time from his ordinary residence to a workplace other than his regular workplace, or in the course of  peripatetic occupation, or to the scene of an emergency, will be acting in the course of his employment.
  • A deviation from or interruption of a journey undertaken in the course of employment, unless merely incidental to the journey, will for the time being (including overnight interruption) take the employee out of the course of his employment.
  • Return journeys are to be treated on the same footing as outward journeys.

Police officer injured while playing football

Faulkner v Chief Adjudication Officer (1994)

F, a police officer, claimed disablement benefit for an injury suffered while he was playing football for a police football club. He argued that he had sustained personal injury arising out of and in the course of his employment. His claim was rejected on the basis that he had not been doing his job at the time of the injury. F appealed to the Court of Appeal on the ground that the role of the police had changed and that it could no longer be said that football amounted to recreation.

The appeal was dismissed. The question could not be answered by considering whether an injured person had been doing something reasonably incidental to his work. It was important to look at the factual picture as a whole and to reject any approach based on the fallacious concept that any one factor was conclusive.

MANUAL LABOUR

Definition

J & F Stone Lighting and Radio Ltd v Haygarth (1966)

H was employed as a television and radio repair engineer. Most of his work involved the repair or replacement of parts or adjustment of sets. The issue in the case was whether this amounted to “manual labour”.

The House of Lords ruled as follows:

  • The test of manual labour did not rely on physical strength. It was not a question of arduous work.
  • The whole character of the work had to be looked at. The test was whether, on the whole, the use of hands was a substantial part of the work. Where work involved partly manual and partly intellectual work, it had to be analysed to see which was incidental to the other. If the manual work was ancillary or incidental to the intellectual work, then it would nit be “manual labour”. But if the manual aspect was predominant, then it would qualify as manual labour.
  • In the present case, H’s work was predominantly a routine manual use of tools on work which was familiar to the engineer. It was therefore “manual labour”.      

Health and safety: general definitions

Health and safety cases: General health and safety terms (1)

ACCIDENT

Back injury caused by repeated lifting of patients

Mullen v Secretary of State for Work and Pensions (2002)

M was employed as an assistant care officer in a home for the elderly. As a result of the repeated lifting of patients over a number of years, she suffered from back pain which made her unfit for work. She applied for industrial injuries benefit. An adjudication officer and a social security appeal tribunal ruled that her injury had resulted from a gradual process and was not an “accident”. She applied to a Scottish court for leave to appeal against the decision. The court ruled in her favour and stated that a back injury sustained while handling a patient was an “accident”. Where there was a series of accidents, an applicant was not disqualified only because she could not identify which one caused or contributed to the condition. 

Deep vein thrombosis

In re Deep Vein Thrombosis and Air Travel Group Litigation (2003

A total of 55 passengers brought a group litigation claim against a number of international air carriers. Each claimant had suffered deep vein thrombosis (DVT) which resulted in serious injury or death, allegedly caused by cramped seating conditions and a failure to warn of the danger posed by the flight or to advise of the appropriate steps to minimise or eliminate the dangers. The High Court made the following points:
* A culpable act or omission by an air carrier in failing to warn its passengers of the risk of DVT and in failing to provide less cramped seating, was not an “accident”.

  • “Accident” means an unexpected or unusual event or happening. In the present case, each flight was normal and unremarkable and complied with all applicable aviation regulations.

The claimants appealed to the Court of Appeal. That court dismissed the appeal and stated the following:

  •  A non-event could not be an “accident”.
  • The alleged failure of international air carriers to warn passengers against the risk of DVT as a result of normal flights operated under normal procedures and conditions, or to advise passengers how to minimise that risk, and the provision of cramped seating which was an integral and permanent feature of aircraft, were not events which were capable of constituting an “accident”.
  • Inaction itself could never properly be described as an accident. It was not an event, it was a non-event, the antithesis of an accident.

Fire officer attending incidents

Chief Adjudication Officer v Faulds (2000)

F, a former senior fire officer, suffered from post-traumatic stress disorder which arose from his work. This involved a number of years attending road accidents, air crashes and fires. F was awarded industrial injuries benefit on the basis that he had suffered personal injury by an accident arising out of and in the course of his employment. The Chief Adjudication Officer appealed against the award, arguing that F’s condition had not been caused by an “accident”. The matter eventually reached the House of Lords which ruled that the decision to award benefit should be set aside. It made the following points:

  • “Accident” means “an unlooked-for mishap or an untoward event which is not expected or designed. It may also mean “any unintended an unexpected loss or hurt”.
  • F had not been subject to “accidents” despite having been exposed to great stress in attending incidents. He was required to attend such incidents in the course of his employment.

BUILDING

Definition

Elms v Foster Wheeler Ltd (1954)

FW Ltd was under contract to install four steam powered electrical generators in a power station which was under construction. The shell of the building had been constructed. FW’s work was to complete the inner parts. This involved not only putting in the generating machinery but also providing all the ancillary pipework, floors, galleries and steel stairways around the generating plant. E, an employee of the company, fell from some steel joisting. If this had been a “building operation”, scaffold boards should have been provided. E claimed compensation for breach of statutory duty on the basis that the whole work was a building operation.

The court ruled that there is no hard and fast definition of “building” or “building operation”. It is clear that the word “building” encompasses a wide range of structures. Each case has to be judged on its own facts. But an employee who is contributing to, or taking part in, the construction of part of a building is engaged in building operations.

Open-air structures without roof or catwalk

McGuire v Power Gas Corpn Ltd (1961)

P Ltd was building a plant for the conversion of oil to gas by a catalytic process. The plant covered an area of 80 square feet and was 30 feet high. Besides the actual containers in which the conversion took place, the structure supported stairs, gangways, catwalks, ladders, stanchions and pipes. There was no roof and it had no sides. It did not resemble a conventional building in any way. M fell from the structure and claimed compensation for his injuries.

The court made the following points:

  • A structure containing plant may still be a building notwithstanding that it is an open air structure without roof or walls. The word “building” is not restricted to conventional forms of building.

DETRIMENT

After termination of employment

Fadipe v Reed Nursing Personnel (2005)

F raised health and safety concerns during his employment with R. He was dismissed and when he applied for a new job, R supplied a reference which stated that although F’s work had been satisfactory, it would not give him any further work. F complained to an employment tribunal that R had subjected him to a detriment for having raised health and safety concerns. His complaint was rejected on the basis that the alleged detriment had occurred after the end of F’s employment with R. F appealed on the ground that the relevant statutory protection extended to former employees.

The appeal was dismissed. A person who had raised health and safety concerns while still an employee was not protected from the former employer’s detrimental acts committed after the employee had ceased to be employed.

IMPRACTICABLE

Definition

Jayne v National Coal Board (1963)

Safety measures in mining regulations were subject to the qualification that a lesser standard was acceptable if the normally required standard was “impracticable”.

A miner had been injured during underground shot firing. It was argued that, in contravention of the regulations, the shot firer had not personally checked that all men were clear of the danger areas. In defence of the employer it was argued that this was “impracticable”.

The court found that where legislation is made subject to the qualification that a lower standard is acceptable when circumstances make normal compliance “impracticable”, the employer is under a severe burden of proof. The word “impracticable” does not mean “physically impossible” but it does pose a high standard of proof that there were very good reasons for not taking precautions.

IN THE COURSE OF EMPLOYMENT

Tanker driver throwing down lighted match

Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942)

A petrol tanker driver lit a cigarette and threw the lighted match on the ground near the nozzle of the hose from which petrol was being pumped. The petrol ignited and caused a serious explosion. It was argued that he had not been acting n the course of his employment when he threw down the match. The House of Lords disagreed and ruled that he had been acting in the course of his employment.

Employee slipping on lubricant

Davidson v Handley Page Ltd (1945)

Just before her lunch break Ms D went to a water tap to clean her teacup. In the vicinity was a tank which contained lubricant for lathes. There were slatted duckboards on the floor. The area was slippery because of spillage of lubricant on the duckboards. As she was reaching for the tap, Ms D slipped and was injured. She claimed damages from her employer, alleging negligence arising from its failure to keep the area free from slippery substances. The employer argued that its liability ceased the moment an employee stopped actual work. It accepted liability for injuries which occurred while the employee was carrying out the employer’s work, it denied liability for any injuries which occurred while the employee was not working.

The court commented that the defence, if accepted, would give rise to extraordinary results. For example, if two employees were coming down from a scaffold, one to get a bag of nails and the other to go to the latrines, under this argument the one going to the latrines would not be protected. This was unacceptable to the common law.

The employer’s duty to take steps for the safety of its employees applies both during periods of actual work and while employees are carrying on activities incidental to their work.  

These case summaries have been prepared by employment lawyers based in Clifton, Bristol.


Floors, passages and stairs: health and safety cases

Health and safety cases: floors, passages and stairs

This compilation of interesting cases dealing with health and safety aspects of floors, passages and stairs, has been compiled by employment lawyers based in Clifton, Bristol.

DEFINITION OF FLOOR

Sand base of foundry

Harrison v Metropolitan-Vickers Electrical Co Ltd (1954)

H worked in a foundry. The foundry base was made of casting sand. Pits or holes were prepared in the floor to form moulds for castings. These were filled in after use and then redug as appropriate. Iron sheet walkways were laid on the sand to give access for the carrying of molten metal to the moulds. Molten metal was carried by two men each holding one end of a pole which held a ladle. The pole was about 7 feet long. Having poured the molten metal into a mould H, on one end of the pole, was walking backwards along a metal gangway when he misjudged a corner and fell into a casting hole. Surplus molten metal splashed up from the mould he was helping to carry and landed on his head. He claimed compensation for his injuries.

The issue in the case was whether the sand base of the foundry was a “floor”. The employer argued that it was not a floor because hole were dug in it on an ad hoc basis for the purpose of casting and that a separate system of metal walkways were the floor.

The court found that the sand base was the floor and the pit into which H fell was an unfenced opening. The employer was liable for breach of statutory duty. The base had many uses. Castings and other materials were stored on it. What were they standing on if not the floor?

Planks laid on high-level gantry

Tate v Swan Hunter & Wigham Richardson (1958)

T fell through an opening between planks laid on an 80 foot gantry. The planks were placed above steelwork so that workers could more easily work about. The planks were moveable and did not form a complete platform. Holes were left for ladders to emerge from below. T fell though a hole and suffered fatal injuries. His dependant mother claimed compensation for breach of statutory duty, alleging that the ladder hole was an opening in a floor which should have been fenced.

The court found that the planked area was not a “floor”. The extent of the word “floor” was very difficult to define but it did connote an area, within walls, which was indoors on which people walked or stood.

Slippery duckboard

Harper v Mander & Germain Ltd (1992)

H, an experienced marble polisher, slipped on a duckboard at a marble processing factory. The duckboard was slippery because paste had been allowed to accumulate on it. He claimed compensation for his injuries.

The Court of Appeal held that once it was shown that the accident had been caused by the accumulation of paste on the duckboard, the employer was then at first sight in breach of statutory duty, unless it could be shown that it was not reasonably practicable to keep the duckboard free at all times from a slippery surface.

DEFINITION OF PASSAGE

Passageway to canteen

Davies v De Havilland Aircraft Co Ltd (1950)

D was on his way from the shop floor to the works canteen when he slipped on the floor, fell among some machine tools and was injured. From the evidence it seemed that he had slipped in a patch of oily water held in a slight depression on the floor. Apart from this the floor was of sound construction. D claimed that the passageway was a means of access to his place of work in the wider sense and that it was unsafe. He clamed compensation from his employer.

It was argued on behalf of D that if he had been on his way from the canteen back to his workplace, there would be no doubt that the employer was liable. It was illogical to distinguish between going from a canteen rather than towards it when an injury could happen at the very same spot on the passageway.

The High Court did not accept this argument. It ruled that a canteen was not part of the workplace.

Outdoor road on factory premises

Thomson v Fisher & Ludlow Ltd (1968)

Ms Thornton, a cleaner, was walking to work along a roadway within factory premises at 6.45 a.m. when, in the half light, she stumbled on a coil of wire and injured herself. She clamed compensation from her employer.

The court found that a 30 foot wide roadway with a pavement running its full length could not reasonably be described as a passage. A minority of the judges stated that the road was a passage because it was a route by which people went on foot.

Definition of obstruction

Jenkins v Allied Ironfounders Ltd (1969)

J’s work involved moving freshly moulded cast iron pipes to another section of the factory for finishing. He would collect them from a pile and, together with a colleague, use a small vehicle to transport them. The pipes of the pile, having been only cast on the previous day, still had substantial amounts of solidified casting sand on them. Fins of surplus metal also protruded from the pipes. These fins sometimes fell off in the process of placing the pipes on the pile and then removing them again. They were usually collected and recycled into the smelting process.

After J had cleared one pile of castings he failed to notice that one of these fins, about six inches long, was half buried in the sand floor. He tripped on this and injured his back. He claimed compensation from his employer on the basis that the half-buried fin was an obstruction and it was reasonably practicable to have moved it.

The House of Lords ruled that an obstruction is something on a floor which has no business to be there and which is a source of risk to persons ordinarily using the floor. It does not include objects which are easily seen and put on the floor during the normal course of operations. A heap of components deliberately gathered in one place pending redistribution is not an obstruction. The word “obstruction” is clearly not intended to include easily visible objects properly put on the floor in the course of a proper system of work.

Screw on floor

Gillies v Glynwed Foundries (1977)

G was employed in a factory. His duties included moving loads on a barrow. The wheel of the barrow struck a discarded screw. The barrow swerved and G injured his back. He claimed compensation from his employer.

The claim failed. The employer had a system for cleaning the floor. Although the screw had been an obstruction, it would not have been reasonably practicable to take steps additional to the existing satisfactory system.

Bolt on floor: foreseeability

Paterson v Lothian Regional Council (1992)

P was employed by LRC as a youth training supervisor. He suffered an injury at work when he tripped over a door bolt, which had allegedly fallen from a door, and fell down a flight of steps. He claimed compensation from his employers for breach of statutory duty. At the trial, conflicting evidence was given as to whether the fall had been caused by the bolt and whether the bolt had fallen from the door. At first instance the judge ruled that he was satisfied that, on the balance of probabilities, it had fallen from the door and caused the injury. The bolt was an obstruction. The incident had been the fault of the employer for failing to take reasonable steps to make the bolt secure, despite knowing that it had fallen off on a number of previous occasions. The concept of “obstruction” involved an element of foreseeability.

Obstruction deliberately placed

Erskine v Falcon Catering Equipment Ltd (1997)

E, an employee of F, was injured when he tripped over pieces of wood in F’s store. The employer argued that the pieces of wood did not amount to an obstruction because they had been clearly visible and deliberately placed in the middle of the floor so as not to obstruct access to desks around the room. The needs of other employees had been duly considered. The Scottish court decided that the wood had been placed in the middle of the floor on occasions, but not as part of a system of work. There had been a clear risk to persons ordinarily using the floor. The wood had been an obstruction.

Properly maintained floor

Slippery surface

Latimer v AEC (1953)

L used a hand trolley to carry bins of handbrake components from one location in a factory to another. An exceptionally severe rainstorm had caused flooding in the factory. Floodwater covered a substantial part of the factory floor. This water became contaminated with cooling oil used on lathes in the factory. When the floodwater receded, a slippery oily film was left on the floor. The employer kept a quantity of sawdust for spillages but there was not enough to cover all the slippery area.

L was trying to lift a bin of components which weighed approximately 200 kg. He manoeuvred the platform part of the trolley under the bin, put his right foot on the trolley axle and began to tilt the bin. His foot slipped on the oily surface and the full weight of the trolley fell onto him. He claimed compensation for his injuries on the basis that the employer had failed to keep the floors properly maintained.

The House of Lords ruled as follows:

  • In order for a floor to be properly maintained, its structure must be sound and must not have deteriorated to an excessive degree. Short-term obstructions on the floor, or exceptional conditions of the surface due to some unexpected outside interference are not included.
  • A floor might be improperly maintained if it was so highly waxed as to be slippery, for here the waxed surface is a long-term condition. But temporary incursion onto the surface of a floor which was otherwise perfectly sound did not cause it to be improperly maintained.

Equipment: cases on the meaning of the word

Health and safety: Equipment cases

Employment lawyers based in Clifton, Bristol, have researched the following cases dealing with the meaning of equipment, which it is hoped will be of interest.

Whether “equipment” includes a ship

Coltman v Bibby Tankers Ltd (1987)

The Derbyshire, a ship owned by BT Ltd, sank off the coast of Japan with the loss of all hands. The personal representatives of a crew member brought proceedings against BT Ltd, alleging that the death of the deceased had been caused by defects in the ship, which was “equipment” for the purposes of the Employers’ Liability (Defective Equipment) Act 1969. At first instance, this was accepted by the court. BT Ltd appealed and the appeal was allowed by the Court of Appeal. The personal representatives appealed to the House of Lords.

The Lords made the following points:

  • In the context of the 1969 Act, a ship was part of the equipment of the business owner.
  • The exclusion of the ship from the definition of equipment would produce the absurd position that the employer was liable for injury caused by defective machinery on the ship, but not if caused by anything which could properly be described as part of the ship itself. This would raise almost insoluble problems of demarcation.
  • The purpose of the 1969 Act was manifestly to saddle the employer with liability for defective plant of every sort with which the employee was compelled to work.
  • There was no ground for excluding particular types of chattel merely on the ground of their size or the element upon which they were designed to operate.

Whether a flagstone is “equipment”

Knowles v Liverpool City Council (1993)

K was injured at work when he handled a flagstone which broke. He claimed compensation from his employers.

The Court of Appeal ruled that a flagstone counted as equipment for the purposes of the 1969 Act and the employer was liable. The court preferred the broader interpretation of the wording of the Act. In the present case this meant that the acknowledged purpose of the legislation should be followed. This purpose was to protect employees from falling between two stools in circumstances where, the employer having exercised all proper care and having relied upon a reputable suppler, had nevertheless exposed an employee to dangerous material which was dangerous through the fault of a third party.

The employer’s appeal to the House of Lords was dismissed. The wording of the 1969 Act should be widely construed to include every article of whatever kind supplied by the employer for the purposes of his business.

Wooden packaging equipment

Davison v AR Allen (t/a Allen’s Transport) (1998)

D was a heavy goods driver. He was driving a vehicle loaded with graphite electrodes which had been packed in Japan. The load shifted and the vehicle overturned on a motorway sliproad. D sought to prove that responsibility for this lay with his employer. Neither D nor his employer knew or could have known how the electrodes had been packed or how secure they were.

The county court ruled that the employer was responsible for the following reasons:

  • The wooden packaging around the electrodes was inadequate because of the negligence of an unidentified party.
  • The packaging was “equipment” for the purposes of the 1969 Act because it had been supplied to D for the purpose of his work, to transport the load from one place to another. Without the packaging, D would not have been able to do her job. The equipment was therefore defective.

Fault of third party

Edwards v Butlins Ltd (1998)

E suffered an injury at work when a calorifier exploded. He claimed compensation from his employer under the 1969 Act on the basis that the reason for the explosion had been the fact that a pressure release valve had been screwed down too tightly by an employee of the supplier.

The Scottish court found that there had been an admission by the employer that there was a defect in equipment which had been caused by the fault of a third party. This rendered the employers liable for the third party’s fault.

Angle iron as makeshift tool

Couzens v T McGee & Co Ltd (2009)

In 2003 C, an employee of M, was driving a tipper truck in the course of his employment. A piece of angle iron, which he used as a makeshift tool and kept in the pocket of his driver’s door, caught his trouser leg. He was not able to move his right leg from the accelerator to the brake. He was injured in the resulting accident. At first instance the court found that the angle iron was “equipment”. On appeal to the Court of Appeal by the employer, the appeal was dismissed.

The Court of Appeal held that an item of equipment used at work but not supplied to an employee by the employer was not work equipment unless the employer expressly or impliedly permitted, or was deemed to have permitted, its use. Deemed permission can be inferred where the employer ought to have realised that an item was being used, but apparently did not and therefore did nothing to stop it. On the facts, the angle iron was not “equipment”.

Drinks vending machine

Given v James Watt College (2007)

G was employed by J as a kitchen assistant. In May 2003 she was standing near a drinks vending machine at work when it malfunctioned. The machine started hissing loudly and emitting steam. It then emitted a flash in her direction. She was frightened and fell heavily on the floor, suffering injuries to her right hip and wrist. She claimed compensation from her employer.

The Scottish court found that the machine was provided by the employer for use by canteen employees. It was fully operational and available for use at the material time, and was “equipment”.


Compensation in health and safety cases

Health and Safety case law: damages

Employment lawyers in Clifton, Bristol, have summarised the leading cases in this area as follows:

Exacerbation of pre-existing condition

Simmons v British Steel plc (2003)

S was employed by B as a burner in a steelworks. He fell from a table in the workplace and suffered a severe blow to his head. This resulted in his ear suppurating, blurred vision and headaches. He claimed that the incident had exacerbated a pre-existing skin condition and had caused mental deterioration including depression. S had not worked since the accident and claimed compensation from B. At first instance, the Scottish court ruled that B had been at fault but that, in relation to causation, S’s conditions had probably been caused by anger at B’s treatment of him after the incident. Compensation was therefore limited to the immediate physical consequences of the incident. S appealed.

The decision on appeal was as follows:

  • The appeal was allowed.
  • The real issue related to the conclusions to be drawn from evidence which was either undisputed or plainly established.
  • The reasons given by the court below were unsatisfactory. The court had not clearly explained why S had been unable to prove that his condition was caused by the incident.
  • The evidence, looked at as a whole, presented a coherent picture of a causal link between the incident and S’s condition in both psychiatric and dermatological aspects.
  • B had to take S as it found him, despite the fact that a more psychologically robust individual might have recovered from the incident, despite displaying a dermatological or psychiatric condition.

This case illustrates the importance of the concept of causation in relation to claims for compensation for injuries caused in the workplace. Claimants who allege negligence on the part of their employers must establish the existence of a duty of care, breach of that duty, resulting damage and that the damage was in fact caused by the breach of duty. In most cases, this will be self-evident.

Mistake as to identity of employer

Cressey v E Timm & Sons Ltd (2005)

C, a forklift truck driver, was injured at work in December 2000 when a pallet struck his leg, fracturing it. His employer was E Timm & Son Holdings Ltd (Holdings) but his payslips were in the name of an associate company, E Timm & Son Ltd (Ltd).

By March 2001 C’s solicitors had sent a letter of claim to Ltd, which were thought to be C’s employers. The company’s insurers replied on April 30, 2001, identifying their insured as Holding.

In April 2001 C was made redundant by a letter in the name of Ltd. At that time, both C and his solicitors continued to think that Ltd was his employer. On March 30, 2004, C’s solicitors brought proceedings naming both Holding and Ltd as defendants.

The issue was whether the date of knowledge when C first had knowledge of the identity of his employer was the date of the workplace accident or the date when he first became aware of the existence of Holding. This was April 30, 2001, and meant that the three-year limitation period still had one month to run.

The judgment of the Court of Appeal, in summary, was as follows:

  • In most cases of an accident at work, the employee would then and there have knowledge of the employer’s identity.
  • In a minority of cases where the identity of the employer was uncertain, or wrongly stated to the employee as in the present case, the date of knowledge would be postponed for so long as it reasonably took to make and complete appropriate inquiries.
  • There is no need, for there to be a lack of relevant knowledge, for the employer to be in breach of duty or deliberately attempting to deceive the employee or keeping him in the dark. It is sufficient that the employee is deprived of the knowledge which he needs by being misinformed.
  • In the present case, C was misinformed and he had no reason to think that any other company than Ltd could be his employer until, at the earliest, April 30, 2001.

Credibility of claimant

Owens v Redpath Offshore (South) Ltd (1998)

O was awarded £200,000 damages against R Ltd as the result of an accident at work when he struck his head on scaffolding, causing a neck injury. R Ltd appealed, arguing that O had told so many lies in his CV and in job applications that his claim for compensation should have been dismissed. R Ltd also sought to bring fresh evidence that O continued to use false CVs.

The appeal was dismissed. The judge at first instance had known about O’s use of false CVs but the judge had relied on contemporary reporting of O’s accident and on the evidence of a colleague.

The work which O had obtained since the accident was of the type which the judge had predicted. It was not the heavy fixing work which he had previously done.

Loss of congenial employment

Champion v London Fire and Civil Defence Authority (1990)

C, a firefighter, fractured his wrist in a fall in the kitchen of Surbiton fire station. A colleague had dropped some eggs and C slipped on them. As a result of the injury he was discharged from the fire service. He claimed compensation from his employers for loss of congenial employment because he had lost job satisfaction as a result of his discharge from the fire service.

The claim succeeded. C had suffered a significant loss of job satisfaction and should be awarded damages for such loss.  

PROVISIONAL DAMAGES

Chance of condition worsening

A provisional award of damages can be made where the parties agree that such an award is appropriate and that there is a chance of the claimant’s condition worsening in the future.

Hurditch v Sheffield Health Authority (1988)  

H was exposed to asbestos at work during two periods. The first was during employment by the Royal Navy between 1957 and 1972. The second was when employed by SHA. It was accepted that his condition, asbestosis, was mainly due to the first period but was also referable to his current employment. The parties did not agree as to the type of asbestos to which H had been exposed, or the risk of his condition worsening. At first instance the court refused to make a provisional award of damages. H appealed to the Court of Appeal.

That Court stated that there should be judgment for H of £2500 as provisional damages with an order, unlimited as to time, providing for him to seek further damages in relation to a serious deterioration in his condition. The fact that not all matters had been agreed between the parties did not prevent the court making the provisional award.

Risk of serious further deterioration

Prentice v William Thyne Ltd (1989)

A 30 year old forklift truck driver suffered a fracture of his femur with consequent restrictions on movement of his hip joint and a possible deterioration in his condition.

The Scottish court found as follows:

  • The worsening of the claimant’s condition might be a certainty rather than a risk, but his condition already existed. Any further worsening would be difficult to categorise as a serious deterioration and thus the action was not a proper one for a provisional award.
  • If the claimant was going to develop serious deterioration in his right hip, then that might be said to be a risk that such would happen.
  • The deterioration in this case would be a worsening of the condition from which the claimant currently suffered and not the development of some new condition.

TRIAL BY JURY

Trial by jury of a personal injury claim may be appropriate in an exceptional case where, for example, personal injuries have resulted from conduct on the part of those deliberately abusing their authority, and there is a claim for exemplary damages, that is, damages awarded to punish a defendant rather than to compensate for damage actually suffered/

H v Ministry of Defence (1991)

H was a serviceman who suffered from an abnormality of the penis. He sought advice from the MOD’s medical services. As a result of investigative procedures in hospital his penis became infected and had to be partially amputated. He claimed compensation from the MOD and an order that the action should be tried by a judge and jury. At first instance it was ruled that there was a judicial discretion to order jury trials in personal injury actions in exceptional cases. The MOD appealed to the Court of Appeal.

That Court allowed the appeal. It stated that trial by jury was inappropriate in personal injury cases except in exceptional circumstances. Where compensatory damages were to be assessed, such assessment was made by reference to conventional scales known to a judge but not a jury. Although, in the present case, the claimant’s injuries were unusual and traumatic, assessment of damages should nevertheless be in conformity with the conventional scales.

Further, in retaining a judicial discretion for exceptional cases, Parliament was not to be taken as having necessarily contemplated that such cases would arise in the context of personal injury actions. The claim was not exceptional so as to justify an order for trial by judge and jury.


Contributory negligence in the workplace

Health and Safety and Contributory Negligence

Employment lawyers in Clifton, Bristol, have compiled a database of leading cases dealing with contributory negligence in the context of health and safety at work.

Contributory negligence means, in summary, that a person who suffers injury because of the fault of another person may have his/her compensation reduced where he/she has contributed to the cause of the injury.

Leading cases include:

Barclays Bank plc v Fairclough Building Ltd (No.2) (1995)

B engaged F as contractors to carry out maintenance work on two industrial warehouses occupied by B. The work of cleaning the asbestos roofs of the warehouses was subcontracted by F to C and by C to T. Neither T nor C had sufficient experience of the health risks of cleaning asbestos roofs. T used a high-pressure hose for the work. This caused asbestos slurry to enter the warehouses and to dry out, resulting in dangerous levels of asbestos contamination. An environmental health officer served a prohibition notice. Remedial works estimated to cost £4 million were required. The issue in the Court of Appeal was the extent of the liability of T and of C. The decision was as follows:

  • Neither T nor C could avoid liability for having failed to exercise reasonable care and skill.
  • Having regard to the weight of expert evidence on the publication of information about the risks of working with asbestos, any person cleaning asbestos with a high pressure hose had a duty to avoid extensive contamination of the surrounding area.
  • T’s liability to C should be reduced by 50 per cent by reason of C’s contributory negligence. This reflected the close relationship between T and C.

Fishwick v Lin Pac (1994)

F’s work involved loading large reels of paper into a machine. During the course of this operation, his thumb became trapped in the machine and was crushed. He claimed compensation from the employers.

The county court found that the accident had been entirely F’s fault. He, and other employees, had done the same job hundreds of times with no accidents. F had been in control of the operation and his injury had been caused by his own carelessness. It was possible, and usual, to do the job properly without risk to he arms or hands.

Sullivan v HWF Ltd (2001)

S was a director, shareholder and employee of H Ltd. His responsibilities included H Ltd’s health and safety procedures, including the preparation and implementation of the company’s safety assessments and work methods. One risk assessment had warned of the danger of bolts being left lying on the floor. S knelt and tripped on a bolt left on the floor by a colleague. He fell from a platform and suffered soft tissue injuries to his neck and left shoulder, a fractured elbow and a head injury. He claimed compensation from H Ltd. On behalf of the company it was argued that because S was responsible for health and safety matters, any breach of the legislation was his own fault. It was also argued that S’s level of contributory negligence was 100 per cent.

S’s claim succeeded. He had impressively and carefully prepared H Ltd’s health and safety documentation. It was his responsibility to ensure that methods and assessments were made and that H Ltd’s employees adhered to them.

S could not be expected to supervise workers for every minute of the day. There was a duty on all employees to take care of their own safety and that of fellow employees. S was not responsible for the presence of the bolt. S was contributorily negligent to the extent of one third because he had failed to see the bolt when he knelt down.

Binks v Securicor Omega Express Ltd (2004)

B was employed by D to load and unload parcels from box vans at its premises. The unloading process included the use of a retractable conveyor belt which moved into the rear of the van and speeded up the process of unloading. When the unloading was complete, the belt was retracted out of the van and B would also leave the van. The van driver would then be signalled to drive off. B alleged that he was injured when the belt was removed and the van drove off without warning, causing him to fall to the ground. On behalf of the employers it was argued that B had been riding on the belt as it was retracted, contrary to express prohibition, and that he had fallen off. This version of events was based on an entry in the accident book.

B claimed compensation for his injuries. At first instance his claim failed. Before judgment it was submitted on behalf of B that even if his version was disbelieved, he was entitled to put an alternative case in negligence, based on the employer’s version of events. The county court judge refused to allow this application on the basis that to do so would prejudice the employers, because they would have approached the evidence differently if they had known that the alternative case was to be put. B appealed to the Court of Appeal.

The appeal was allowed. The Court made the following points:

  • There was nothing objectionable in principle in a claimant putting forward a case based on material relied upon by a defendant, so long as there was evidence in support of it.
  • The judge’s approach had been flawed. No regard had been given to the wider interests of justice and how that could be achieved by consequential provisions as to costs. The issue of fact was whether the accident happened in the way described by the claimant or the defendant and permission to amend the statement of case should have been given, because there was no significant prejudice to the defendant.
  • Liability was found against the employer for driving off without giving proper warning to B. B was also to blame for riding on the conveyor belt, which he ought to have known was a foolhardy thing to do. B’s contributory negligence was assessed at 50 per cent.

Tasci v Pekalp of London Ltd (2001) 

T was employed by P as a wood machinist. He was a Kurdish refugee who spoke little English. He told P that he had experience of woodworking machinery. This was untrue. A director of P, who was aware of T’s background, showed him how to operate a bench-mounted circular saw, gave him seven specific safety instructions and walked past the machine at half-hourly intervals to ensure that T was following his instructions. Three weeks later T injured his left hand while operating the saw. He claimed compensation from P in negligence and for breach of statutory duty. At first instance it was held that P was not liable. The accident had occurred because T had operated the machine from the wrong side. T appealed to the Court of Appeal.

The appeal was allowed. Given T’s background, the degree of instruction and supervision and the system of work fell short of what was required by the common law.

It was not sufficient to have demonstrated how the work should be done. Explanation had to be given as to why it was to be done in that way and what dangers might arise if it was not done in that way. T must have been aware of the danger in which he was placing himself in working the machine from the wrong side and had to bear a substantial share of the blame for his accident which would be assessed at 60 per cent.         

Jayes v IMI (Kynoch) Ltd (1984)

J, a very experienced worker, used a rag to wipe grease from a moving part of a power press machine. The rag became caught up. He tried to pull the rag out bt the machine pulled his finger in and he lost the tip of his finger. He admitted that he had done a very foolish thing, a “crazy thing”. At first instance, the court found that there had been a breach of statutory duty but J had ben 100 per cent contributorily negligent. On appeal to the Court of Appeal, the appeal was dismissed.

Gunter v John Nicholas & Sons (Port Talbot) (1993)

G, an experienced wood machinist, operated the unguarded cutter of a woodworking machine which carried on revolving for some time after the stop control had been operated. As a result, he suffered injury to his hand. He claimed compensation from his employers on the basis of their negligence. At first instance the court found that the employers had been negligent in that they had failed to fit an effective stopping mechanism to the machine. G’s contributory negligence was assessed at 25 per cent. G appealed to the Court of Appeal.

That Court ruled that, in the light of G’s familiarity with the machine and the extent of his experience, the contributory negligence assessment had been wrong. G had been two-thirds to blame and contributory negligence should be assessed accordingly.

King v Smith and Another (1994)

K, an employed window cleaner, suffered serious injuries when he fell from a second floor window while leaning it. He had not been able to clean the window from the inside, nor to use the “housemaid” position (sitting on the sill with his legs inside the room). He stood on the outside sill, lost his balance and fell.

The employer’s rules stated that when employees were working on the outside of windows more than six feet above ground, then such windows must be cleaned as far as possible from the inside or by sitting on the window sill. If windows could only be cleaned by standing on the outside sill, then safety belts should be used. K claimed compensation from his employer.

The Court of Appeal found as follows:

  • The employer was 70 per cent to blame.
  • The rules were inadequate. They should have stated that employees were prohibited from going onto outside sills where windows were so constructed that they could have been cleaned from the inside if working properly.
  • It was well appreciated that standing on an outside window sill was a dangerous practice and the main cause of serious accidents involving window cleaners.  

Health and safety and contractors: leading cases

HEALTH AND SAFETY, CONTRACTORS AND EMPLOYEES

Employment lawyers in Bristol, particularly those based in Clifton, have been concerned to keep up with developments in the law related to health and safety in relation to employees and contractors. This area of law is fast-developing. The following selection of decided cases illustrates the evolving attitudes of the courts to this issue.

K R Page v J A Read (1985) Court of Appeal

A contractor who hires a self-employed subcontractor to undertake work does not owe any duty of care to supervise the subcontractor’s work and to volunteer additional safety equipment or advise a safe method of work. The duty of a contractor to a self-employed subcontractor is lower than that owed by an employer to an employee and is limited to making reasonably sure that any equipment voluntarily offered is reasonable safe.

P was a self-employed painter and decorator. He was hired by R, who was the main contractor on a house building site, to paint houses. No scaffold was available to improve the safety aspect of the work of painting the fascia boards of a house. P sat on the roof and leaned over to do the painting. He fell and was injured. He claimed compensation for R’s alleged negligence in failing to provide proper scaffolding.

The Court of Appeal made the following points:

  • To succeed in his case, P would have to show that he was owed a positive duty of care to all intents and purposes co-extensive with that owed by an employer to an employee.
  • There was no authority for such a proposition and the court would not introduce it now. The general law of negligence compelled all people, contractors and subcontractors included, to refrain from doing things which they ought reasonably to know will harm their neighbour (in the legal sense, this is any person likely to be affected by their activity).
  • Under this principle, a contractor who volunteers the use of equipment to a subcontractor must take reasonable steps to ensure that it is safe for that particular use. But apart from this, there is no positive duty of supervision or to offer safety equipment when this might be appropriate. The contractor’s duty to the independent contractor was in this sense lower than that owed by an employer to an employee.
  • Apart from contract, there was no obligation to provide equipment for an independent contractor. If the contractor wished to carry out the work in a risky way, that would be a decision which he was entitled to take.
  • On the other hand, if a person voluntarily provided equipment which he knew or ought to have known was defective, in circumstances in which it was reasonably foreseeable that an independent contractor would use it and would be injured, then that person would be liable in negligence.
  • If such a person simply abstained from supplying any equipment at all, being under no contractual duty to do so, then he would not have been guilty of a failure to take reasonable care to avoid an act or omission which is likely to injure the contractor.

Lee Ting Sang v Ching Ch-Keung and another (1990) 2 WLR 1173, Privy Council

L was a mason who worked for a subcontractor at a construction site, chiselling concrete as instructed by the subcontractor. He used tools supplied by the subcontractor. His work was not supervised but was inspected periodically by the main contractor’s foreman. L was paid either a piece-work rate or a daily rate. If he finished work early he helped the subcontractor to sharpen tools. He sometimes worked for other contractors but he gave priority to urgent work of the subcontractor. He was injured during the course of his work.

At first instance the court ruled that L was not an employee and was not entitled to compensation from either the subcontractor or the main contractor. This decision was upheld by the Hong Kong Court of Appeal. L appealed to the Judicial Committee of the Privy Council. The appeal succeeded. The Privy Council stated that the decisions of the courts below had been contrary to the facts and had been so unreasonable as to amount to an error of law. The fundamental test in deciding whether a person was an employee or an independent contractor was whether or not he performed services as a person in business on his own account.

Bottomley v Todmorden Cricket Club [2004] PIQR P18, Court of Appeal

Chaos Encounter (CE) was a two-man stunt team carrying out a pyrotechnic display at T’s annual fundraising event. B was an unpaid volunteer engaged to help CE. He suffered serious injuries and claimed compensation from T and from CE. At first instance, the judge made the following findings of fact:

  • B had no training or experience in the use of pyrotechnics.
  • The pyrotechnic display was potentially very dangerous.
  • T was aware before the event that CE intended to perform a dramatic night-time stunt involving pyrotechnics.
  • CE had no public liability insurance cover.
  • No-one from T’s committee had asked about insurance.
  • The safety equipment provided to B was inadequate.
  • There was no formal contract between T and CE, and T had no clear idea of the stunt which CE was to perform.
  • T had failed to take reasonable care to select a reasonably competent stunt operator and had failed to take adequate steps to find out whether CE was insured.
  • T was vicariously liable for the negligence of CE because, although they were independent contractors, it had engaged them to carry out an extra-hazardous activity on its premises.

The judge stated the following principles of law.

  • A person who engages an independent contractor to carry out works is not liable for the negligence of the contractor, provided that person exercised reasonable care to engage a reasonably competent contractor.
  • An occupier of land does not owe a duty, either under common law or the Occupiers Liability Act 1957, to an employee or agent of an independent contractor who is carrying out an activity on the occupier’s land where the employee or agent is injured because of the way in which the activity is carried out.
  • Some activities are particularly hazardous. Where this is so, the law imposes a duty on the employer to see that care is taken, and the employer is vicariously liable for negligence on the part of the independent contractor.

At first instance it was found that T was vicariously liable for the negligence of CE. It had been in breach of its duty to take reasonable care to select a reasonably competent independent contractor. Checks would have revealed that CE had no public liability insurance. T appealed to the Court of Appeal. That Court dismissed the appeal and made the following points:

  • There was ample evidence that T had failed to exercise care when selecting CE.
  • The occupier who wishes something dangerous to be done on his land, for his benefit, by an independent contractor, may be liable.
  • The injuries suffered by B were foreseeable if there was no proper safety plan.
  • It was fair, just and reasonable to impose liability on T.

Makepeace v Evans Brothers (Reading) and another (2000) The Times, 13 June, Court of Appeal

M, a painter and decorator, was working from a tower scaffold when it toppled over. He suffered head injuries which left him permanently disabled. The tower had fallen either because it had been erected without stabilisers or because M had upset its balance. M was employed by E, who had been engaged by the main contractors. The main contractors had supplied the scaffold. They had told M that he could borrow the scaffold. No-one asked him if he knew how to erect and use the tower.

M’s claim for compensation against E succeeded. His claim against the main contractors was dismissed. There was doubt as to E’s ability to meet the judgment and M appealed against the dismissal of his claim against the main contractors.

The appeal was dismissed. The general principle was that main contractors owed no duty of care to a subcontractor’s employee to ensure the safe use of a tower scaffold which they provided for use on a building site.

It would extend the nursemaid school of negligence too far to require the main contractors to ask whether he knew how to use the equipment safely and the inherent dangers in its incorrect use. A tower scaffold was an ordinary piece of equipment of a kind frequently used on building sites by painters.


Asbestos and health and safety

ASBESTOS AND HEALTH AND SAFETY AT WORK

Leading cases on this issue include the following:

Fairchild and Others v Glenhaven Funeral Services and Others (200) The Times, 21 June, House of Lords

The claimants sought compensation in common law negligence from a number of their previous employers for mesothelioma contracted as a result of their exposure to asbestos at work. The Court of Appeal made the following points:

  • Mesothelioma arises when a single cell in the lung lining is damaged and undergoes malignant transformation.
  • Ninety per cent of mesothelioma cases in the UK are known to follow asbestos exposure.
  • The risk of mesothelioma increases with increased exposure to asbestos. The degree of severity of the condition does not.
  • If there has been more than one employment involving exposure to asbestos, there is no means of determining from which employment was derived the fibre or fibres which caused the malignant transformation.
  • The disease is almost always fatal within two years of its appearance.
  • The claimants could not prove, on the balance of probabilities, which period of exposure caused or materially contributed to the cause of the mesothelioma.
  • There was not a basis for claiming that since each exposure increased the risk of mesothelioma, the claimants could be compensated for the increased risk of contracting the disease.
  • Until the disease had developed, the employee did not know that he had an injury giving rise to a cause of action. Once it had developed, he had to establish on the balance of probabilities that a particular employer caused the disease.

On appeal to the House of Lords, the decision of the Court of Appeal was reversed. The Lords made the following points:

  • The injustice of denying an industrially injured employee a remedy outweighed any unfairness to successive employers who failed to protect the employee from such injury but who could not be proved to have caused the damage complained of.
  • In such a case, proof on a balance of probabilities that each employer’s wrongdoing had materially increased the risk of the employee contracting the disease, was to be treated as proof that each employer had materially contributed to it.
  • The mechanism which initiated the genetic changes culminating in mesothelioma was unknown. The trigger might have been a single asbestos fibre or a few or many fibres. Once caused, the condition was not aggravated by further exposure but the greater the quantity of fibres inhaled, the greater the risk of developing the condition.
  • If C was employed at different times and for different periods by both A and B, and both A and B were under a duty to take reasonable care to prevent C inhaling asbestos dust because of the known risk that such inhalation might cause mesothelioma, and both A and B were in breach of that duty, and C was found to be suffering from mesothelioma; and any cause for the mesothelioma other than the inhalation of asbestos dust could be discounted; but C could not prove which employment had resulted in mesothelioma because of the current limits of human science, then C could recover compensation from either A or B or both.
  • The case raised an obvious and inescapable clash of policy considerations. There might be unfairness to an employer where he might be found liable for damage which he had not caused. On the other hand, there was a strong policy argument in favour of compensating those who had suffered grave harm at the expense of their employers who had failed to protect them against that harm.

Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 543, Court of Appeal

B died of mesothelioma in 1996, aged 57. He had been employed by Summers Ltd at its Shotton steelworks from 1960 until 1968. He was exposed to asbestos during this period. During one six-month period his work involved the regular stripping out of asbestos blankets, boards and wool which had ben used for insulation. B and his workmates were required to sweep up asbestos which had settled on the floor. Expert evidence confirmed that exposure to asbestos was heavy, frequent, regular and of long duration. In 1958 B worked for Graessers Ltd, mixing asbestos for pipe laggers. His exposure to asbestos during this period was described as heavy, regular, frequent and of medium duration. Between 1968 and 1969 B was a self-employed plasterer. He had contact with asbestos dust on three occasions. This involved heavy exposure for a short period.

B’s widow claimed compensation from Saint Gobain, the successor company of Summers Ltd. Saint Gobain was responsible for discharging the liabilities of Summers Ltd.

The High Court found in favour of B’s widow and made the following points:

  • It was impossible to attribute precise responsibility for B’s mesothelioma.
  • The law imposed liability on those who were responsible for materially increasing a risk which later materialised, even though others were also responsible for increasing the risk.
  • In relation to apportionment of liability, mesothelioma must be considered to be n indivisible injury. The general principle was that, where it is impossible to prove which of a number of tortfeasors singly or together caused an indivisible injury, then each tortfeasor is jointly and severally liable to pay full damages for the injury. This applied in the present case.

Saint Gobain appealed to the Court of Appeal which dismissed the appeal. It stated the following:

  • It would be unjust to impose liability on a party who had not been shown to have caused the damage complained of. On the other hand, there was a strong policy argument in favour of compensating, at the expense of their employers, those who had suffered grave harm. Their employers owed them a duty to protect them against that very harm and failed to do so, when the harm could only have been caused by that breach of duty.
  • Science did not allow accurate attribution, as between several employers, of precise responsibility for the harm suffered.
  • The injustice which might be involved in imposing liability on an employer in breach of duty in such circumstances was heavily outweighed by the injustice of denying redress to the victim.

Durie v Wyvern Structures Ltd 2000 Rep.L.R., Scottish Outer House

D, employed as a plumber’s mate, had been employed by W from 1942 until 1946, and by Y at various dates between 1946 and 1965. He died in 1975 and his daughter claimed compensation from W and Y, alleging that her father had died from asbestosis. The main issue in the case was the cause of death. The Scottish court dismissed the case and made the following points:

  • D had suffered significant exposure to asbestos during his employment with W and with Y.
  • His daughter had failed to prove that D had suffered from asbestosis. All experts accepted that in order to support a diagnosis of asbestosis they would have to find features consistent with the condition which might remain constant or would deteriorate. There was no evidence to satisfy this requirement. There was nothing in the radiographs or hospital records which could not be explained by other factors, given D’s smoking and history of bronchitis, obstructive airways disease and emphysema.
  • D had died before his disease could be fully investigated. In the absence of a postmortem, no firm diagnosis of bronchial carcinoma had been made.
  • There was no evidence to prove that this was the cause of death, given that the preponderance of medical opinion was that D had died from pneumonia, which was more likely to have been caused by smoking than by exposure to asbestos.

Gunn v Wallsend Slipway and Engineering Co Ltd (1989) The Times, January 23, High Court

Between 1948 and 1965 G’s working clothes were frequently impregnated with asbestos dust. G’s wife washed his clothes. Before washing the clothes she shook them and them washed them in a tub. This practice continued until 1960 when G bought a washing machine. In 1986 G’s wife died of mesothelioma. It was common ground between the parties that the link between asbestos and mesothelioma was securely established. The court accepted medical evidence that increase asbestos fibres found in the deceased’ lungs indicated that the mesothelioma was asbestos-related and it was reasonable to assume that the washing of the contaminated clothes was the source of the fibres. The period between the first exposure to asbestos fibre and the development of mesothelioma was on average between 25 and 30 years. This fitted in with the facts of the case.

It was accepted by G that a precondition of the existence of a duty of care by the employer to the deceased would be acceptable evidence that a prudent employer ought reasonably to have foreseen that there was a risk of some physical injury to the deceased as a result of the exposure.

The High Court dismissed G’s claim for compensation and made the following points:

  • The employer owed no duty of care to the deceased.
  • Before 1965, no employer bore in mind the risk of physical injury from domestic exposure to asbestos.
  • There was no medical literature on the subject, no warnings or guidance in industrial or official publications even hinting at the problem and no approved practice in relation to the storage and washing of working clothes.
  • Even if the employer had employed appropriate medical and safety personnel, it was most unlikely that it would have become aware of the risk from domestic exposure until about the end of 1965.