Legal Update July 2013

John MitchellHead of Health and Safety

Contents

Breach of statutory duty– Reasonable practicability– Causation– Strict liability

Manual handling– Defective risk assessment

Workplace regulations– Stair rails– Windows

PUWER– Control of work equipment– Hazards covered by

regulations

Negligence– Safe system of work– Trip hazard– Claimant suing himself

Corporate fun days Hazardous pursuits:

– Rock climbing– Obstacle course

Occupiers’ liability– Significance of earlier

incidents– Wet floors– Sports pitches

Corporate manslaughter

Recent developments

Fee for Intervention LASPO – restriction on defence costs Primary authorities RIDDOR amendments and consultation ERRA – removal of compensation for strict liability

duties in health and safety regulation The self employed “exemption” The “promotion of growth duty” The abolition of the AALA The Appeal Panel Myth Busters Challenge Panel Enforcement code

Breach of statutory duty – “reasonably practicable”Strange -v- Wincanton Logistics (Oct 2011)

Manual handling System of work requiring manual moving and

stacking of pallets Employer claimed that it was not reasonably

practicable to use FLTs on ground of:– Cost– Increase in other risks– Difficulty of manoeuvre

Risk of injury from manual handling was low

Breach of statutory duty – effect of breachWilson -v- North Lanarkshire Council (Oct 2011)

Manual handling Claim by employee for damages for disc herniation

arising from long term lifting and carrying duties Employee’s evidence disbelieved by court Employee’s claim nevertheless substantiated Employee nevertheless being awarded no

compensation.

PPE Blair -v- Chief Constable of Sussex (Aug 2012)

B was a police motorcyclist He undertook some off-road training during the

course of which he fell off his motorbike His lower leg was injured He claimed compensation on the ground that his

boots were inadequate to protect him He alleged that motocross boots should have been

provided The PPE regulations are strict liability regulations

Pre-regulation claims for compensationBaker -v- Quantum Group (Apr 2011 on appeal)

Claim for noise induced hearing loss in the knitting industry

Arose from the time when there was no regulation General government and other guidance was that

noise above 90 dBA LEP,d was harmful

Employee was exposed to noise at 86 dBA LEP,d

The issues:– Could the court distinguish between employers?

– Could the employers could rely upon that guidance?

Manual handlingAli Ghaith -v- Indesit Fridges (Aug 2012)

Ali Ghaith was employed as a field service engineer During a stocktake of his van he was required to lift

boxes He suffered a back injury, which was an aggravation

of an existing condition A number of risk assessments dealt with manual

handling by engineers, but not in relation to stock taking

Ali Ghaith claimed compensation on the ground that Indesit was in breach of the Manual Handling Regs

Workplace Regulations – handrails Broadfield -v- Meyrick Estate (Jul 2011)

Staircase in separate flights Each flight separated by a small landing Claimant fell down the first flight Momentum carried her across the landing and down

the second flight Handrail was not continuous down the whole set of

stairs Issues:

– Should the handrail have been continuous?– Would it have made any difference if it had been?

Workplace Regulations – windowsWallace -v- Glasgow City Council (Aug 2011 on appeal) A lady used a toilet cubicle in her place of work Out of courtesy to her fellow employees she decided

to open the window The window was high up on the rear wall The method of opening was a ring on the window

pulled by a hook on a stick provided The stick was too short for her to reach the window She stood on the WC bowl, fell off and injured herself

PUWER – control of offending machineryHyndman -v- Brown and Colin Bradley Ltd (Feb 2012) C was a farm company B was an agricultural contractor working for the farm

company H was the contractor’s employee B’s potato harvesting machine broke down C lent B his machine which H used H used it incorrectly and was injured He claimed damages for from C breach of statutory

duty on the basis that:– C was in control of the machine as it was a temporary

loan– C had failed to instruct him how to use it.

PUWER – hazards covered by regulationsWillcock and others -v- Corus (May 2013)

The claimants were crane drivers with Corus Steel Over the years they developed serious back pain They alleged this was due to the position of the

controls Judge held that their claim was valid Corus appealed on the grounds that PUWER was

designed to protect only against dangerous machinery, not against ergonomic factors

Negligence – Systems of work Evans -v- Windsor and Maidenhead RBC (Jul 2011)

Driver delivering an MWP to third party premises Crushed to death between the edge of the platform

and some overhead pipe work while reversing IPAF certificate 5 years old less 2 days Employer’s sales manager had visited the premises

earlier to assess the size of MWP required Issues:

– Was the driver’s training adequate?

– Was there any significance in the visit by the manager?

Negligence – safe system of workMitchell and ors -v- United Coops (Mar 2012)

The defendant operated a convenience store The claimants were shop workers at the store The store was raided by armed robbers The claimants claimed for post traumatic stress

disorder The basis of the claim was that the defendant had

failed to install security screens

Negligence – trip hazardPalfrey v WM Morrisons Supermarkets Plc

L-shaped loading trolley being used in supermarket Claimant was aware of the presence of the trolley but

not its side flat-bed design Claimant stepped on to flat-bed of trolley

unintentionally and fell Issue was whether the widespread use of such

trolleys meant that they were not dangerous

Negligence – effect of claimant’s negligenceBrumder -v- Aviva Insurance (Mar 2013)

Sole director of company injured at work Cause of injury was failure to maintain equipment

contrary to PUWER Director sued his own company (and his insurer…) Judge found the company liable but held the director

100% liable for contributory negligence Director appealed the contributory negligence finding Insurer appealed the liability finding

Hazardous pursuits – corporate fun daysReynolds -v- Strutt & Parker (Jul 2011)

Corporate fun day Cycling race No risk assessment No helmets required Two bicycles collided One rider seriously injured Injury would not have been serious if he had worn a

helmet Claims for breach of statutory duty and negligence

Negligence – corporate fun daysBlair-Ford –v- CRS Adventures Ltd (Aug 2012)

B was a teacher taking part in an adventure activity course

He took part in a “welly wanging” competition During the course of it he suffered a serious injury

and was rendered tetraplegic The issue was the sufficiency of the risk assessment

Hazardous pursuitsPinchbeck -v- Craggy Island (Mar 2012)

The claimant was a pupil at an indoor rock climbing class

She had been climbing a high wall with a harness The harness was used to slide down to the bottom At the end of the day she was transferred to a low

wall (4m high) with no harness She was not instructed how to get off the wall She jumped on to the crash matting and was injured

Hazardous pursuitsWilson -v- Clyne Farm Centre (Feb 2013)

Scoutmaster attempting obstacle course at outdoor centre

Weather was wet Injured on fireman’s pole Risk assessment identified the risk of injury Control measure was demonstration of technique by

instructor Instructor did not demonstrate the use of the pole Issue: did that of itself amount to a breach of duty?

Occupiers’ liability – wet floorsHufton -v- Somerset County Council (July 2011)

Claimant pupil slipped and fell on a school hall floor which was slippery due to rainwater

School had a policy of using signs to prevent entry to the hall when it rained

Claimant slipped during the short period between it starting to rain and the signs being produced

Claimant argued that:– The school had a duty to prevent the floor from

becoming wet– The school had a duty to clear up water if the floor did

become wet

Occupiers’ LiabilityRichards v- Bromley LBC (Nov 2012)

Pair of 30 year old swing doors in a school One of the doors closed as a pupil was walking

through it and her heel was cut No incident had ever been recorded except one 4

months earlier in which a pupil’s heel had been grazed

The earlier incident had been investigated by the school:– It had not been told about the grazed heel– Work to the doors had been scheduled for the holidays

Issue: did the earlier incident mean that the later one was reasonably foreseeable?

Occupiers’ Liability – sports pitchesSutton -v- Syston RFC (Oct 2011)

Mixed use sports pitch owned by a rugby club Had been used a few days previously for cricket

practice Claimant was using it for rugby practice In diving to score a try, he gashed his knee on a

piece of plastic in the ground The plastic was the broken off stub of a marker used

for the cricket practice. The claimant alleged that the rugby club was liable

for having inadequately inspected the pitch

Corporate manslaughterLion Steel

This case involved a death resulting from a fall through a skylight

The Company was charged with:– Corporate Manslaughter

– Section 2 HSWA

– Work at Height Regulations

The directors were charged with:– Manslaughter by gross negligence

– Section 2 HSWA

Legal Update July 2013

John MitchellHead of Health and Safety