The Health and Safety Blog

 

Summers (John) & Sons v. Frost (1955)

“Absolute Duty”

The claimant’s hand came into contact with moving grinding wheel in breach of the Factories Act 1961, Section 14(1). The defendant argued that if a grinding wheel was securely fenced the machine would be unusable. The court rejected this proposition and refused to read the words so far as is reasonably practicable into the statute.

This case created the bizarre situation that all grinding wheels were illegal unless all the wheel was contained within a guard. To overcome this the government introduced the Abrasive Wheels Regulations 1970 (since revoked) which permitted a lower standard of guarding than that required by the Factories Act.

 

Edwards v. National Coal Board (1949)

“Reasonably Practicable”

You need to be sure of the exact meaning of this phrase and to be able to distinguish it from other similar phrases which are quite different in interpretation. It appears early on in the HSWA in Section 2(1).

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Although a very important phrase in HSWA, the Act itself does not contain a definition of the expression. To find its precise meaning you have to refer to case law. In Edwards v. National Coal Board (1949), a miner was killed when a section of the road on which he was travelling subsided. The section of the road concerned had no timber supports, although other sections were properly supported. The Coal Board stated that the cost of supporting all roads was prohibitive in relation to the risk. Lord Asquith, the judge in the case, said that a balance had to be struck in deciding whether it would have been reasonably practicable to have taken the precaution of providing supports for the section of road which collapsed. The balance was struck by weighing the quantum of risk involved (the danger of collapse and loss of life) against the quantum of sacrifice involved (the cost, time and trouble). If there was a gross disproportion between the two and the risk was insignificant to the cost, there would be no requirement to take the additional precautions. However, in this particular case, the risk was not an insignificant one, and the costs of making safe should have been applied.

Therefore, to carry out a duty “so far as is reasonably practicable” means that the degree of risk has to be balanced against the time, trouble and cost involved in taking the measures necessary to avoid the risk.

If the measures are so disproportionate to the risk involved that it would be unreasonable to take the measures, then there can be no obligation to take them. The greater the risk the more likely it is that it would be reasonable to go to the expense of taking the measures. In a nutshell, if the consequences and the degree of risk are small and the cost of the measures to reduce the risk is very expensive, it would be unreasonable to incur that cost. The size of the company or its financial resources are not a consideration in arriving at a decision.

 

Marshall v. Gotham (1954)

“So Far as is Practicable”

The case concerned the collapse of a mine roof which had been subjected to earlier tests but which collapsed due to a rare geological fault. The judges decided that the employers were not liable because they had taken some precautions but the trouble and expense involved in taking more precautions would have been prohibitive and even then would not have guaranteed safety. The judge ruled in this case that if a precaution is practicable it must be taken unless in the whole circumstances it would be unreasonable. The term is now generally interpreted to mean that whatever is technically possible in the light of current knowledge must be carried out. The cost, time and trouble are NOT to be taken into account in arriving at a decision.

 

Uddin v. Associated Portland Cement Manufacturers Ltd (1965)

“Breach of Statutory Duty”

There were provisions in the Factories Act designed to protect all persons whether or not they were employees or were doing the employer’s work.

A machinery attendant whilst attempting to remove a pigeon climbed up a steel ladder to a platform and then climbed on a cabinet which housed an unguarded revolving steel shaft. As he leant over the shaft his clothes became entangled. Although it was not foreseeable that an employee would get caught in the machine whilst chasing pigeons, it was foreseeable that a maintenance man would fail to turn off the machine when carrying out maintenance. The occupiers were in breach of Section 14(1) of the Factories Act 1961. The Act protected “every person employed or working on the premises”. The claimant was entitled to protection even though not working or acting within the scope of his employment.

 

Donoghue v. Stevenson (1932)

“Duty of Care (Neighbour Principle)”

This case involved two ladies. A friend of the claimant purchased a bottle of ginger beer. The claimant drank some of the beer in which was found the remains of a decomposed snail. She was subsequently ill and sued the manufacturer. She was unable to sue the manufacturer for breach of contract because the only contract that existed was with the claimant’s friend who had bought the ginger beer and the manufacturer.

The House of Lords held that the defendant being the manufacturer of the ginger beer owed a duty of care to the claimant as the consumer of the beer to take reasonable care to ensure that the bottle did not contain anything that might cause harm.

In this case the judge said that reasonable care must be taken to avoid acts or omissions which, with reasonable foresight, you would know would be likely to injure your neighbour. This is known as the “Neighbour Principle”. Therefore the test whether someone is a “neighbour”, in the legal sense, can be established if it can be reasonably foreseen that the act or omission may cause harm to them.

 

Wilsons and Clyde Coal Co. Ltd v. English (1938)

“Employers’ Common Law Duty of Care”

The common law duties of an employer to his employees were identified in general terms in this case. These duties comprise what is called employers’ liability. In this case the employers were liable for injuries caused to a miner as a result of an unsafe system of work.

The claimant was working underground near the pit bottom at the end of his shift when the haulage equipment was switched on and the claimant was crushed between the equipment and the wall of the mine. The defendant claimed that the claimant could have got out of the pit by a different route or could have called to the operator of the haulage equipment telling him of his presence. The House of Lords held that the employer owes a duty of care to his employee which is threefold:

• A safe place of work (including safe access and egress);
• Safe equipment;
• A Safe system of work and provision of competent employees.

This obligation is fulfilled by the exercise of due care and skill.

The case was also important because it stated that those duties were owed personally by the employer to each employee and were non-delegable, that is to say the performance of those duties could be delegated but the responsibility for their correct discharge could not.

*Remember FOMACOTE when deciding if an employer has acted reasonably:

• Foreseeability
• Magnitude of Risk
• Cost
• Technical Feasibility

 

British Railways Board v. Herrington (1972)

“Occupiers Liability (Trespass)”

The board was held liable for injuries to a six year old child who had been playing on the railway line. The child had got through a gap in the fence near the railway line. The board, as occupiers, were aware of previous trespasses but had failed to maintain the integrity of the fence. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. (The Occupiers Liability Act 1984 extended the duty of care to include trespassers).

 

Smith v. Baker & Sons (1891)

“Voluntary Acceptance of Risk”

The claimant worked in a quarry, drilling in the rock face. While he did this a crane worked overhead and both he and his employers knew that there was a risk of the rock falling from the crane. The claimant was not warned when the crane would operate. A rock fell and injured the claimant. The House of Lords held that although the claimant knew of the risk, the defence that he voluntarily assumed it was not proven because he was threatened with dismissal if he objected to the crane working overhead.

 

McWilliams v. Sir William Arrol & Co. Ltd (1962)

“Breach of Statutory Duty Must Cause Injury”

Mr. McWilliams was an experienced steel erector working on a tower crane. He was working on a building about 70 feet high when he fell and died. His wife sued for breach of Section 26 of the Factories Act 1937, which required that if a person could fall more than 10 feet, means such as fencing or safety belts should be provided unless adequate foot and hand holds existed. Safety belts had been available until 2 days before the accident but not used and had then been removed to another site. The House of Lords decided that although the defendants were in breach of their statutory duty in not providing a belt, they were not liable because the breach was not the cause of the accident, since on the evidence presented Mr. McWilliams would not have worn the belt if it had been provided. (At that time there was no duty on employers to instruct or exhort employees to wear the belt).

 

Corn v. Weirs Glass (Hanley) Ltd. (1960)

“Safe Place of Work”

A glazier was carrying a large sheet of glass with both hands. He overbalanced on the stairs and fell, causing himself injury. There was no handrail on the stairs contrary to the relevant regulations.

It was held that, since both hands were involved in holding the glass, a handrail would not have been of use to him, and therefore its absence was not the cause of the injury.

 

Latimer v. AEC Ltd (1953)

“Safe Place of Work”

A factory floor was flooded after heavy rainfall and left a slippery film when it subsided. The floor was treated with sawdust until it ran out but an employee slipped on the floor and was injured.

It was held that the heavy storm was an unforeseeable event and the supply of sawdust was sufficient for normal needs, therefore the employer had taken reasonable steps to keep the floor safe.

 

R v. Swan Hunter Shipbuilder and Another (1982)

“Safety of Third Parties (Provision of Information)”

A fire broke out on board a ship which was under construction by Swan Hunter Ltd. The fire was intense because the atmosphere inside the vessel had become oxygen enriched and eight men were killed. The oxygen had escaped from a hose left by an employee of a firm of subcontractors. Swan Hunter Ltd. had distributed a book of rules to their own employees for the safe use of oxygen equipment, but this was not distributed to subcontractors’ employees, except on request.

Swan Hunter Ltd. were prosecuted under the Health & Safety at Work Etc. Act 1974 for “failure to provide a safe system of work” (contrary to Section 2(2)(a)), “failure to provide information and instruction to ensure the safety of their employees” (contrary to Section 2(2)(c)) and “failure to ensure that persons not in their employment were not exposed to risk” (contrary to Section 3(1)).

The trial judge ruled that all the above sections of the Act imposed a duty to inform or instruct employees other than Swan Hunter’s own, with regard to all relevant safety matters. Swan Hunter Ltd. appealed.

The Court of Appeal dismissed the appeal and upheld the trial judge’s ruling. If, to ensure a safe system of work for an employer’s own employees, it was necessary to provide to persons other than his employees with information and instruction as to potential dangers, then he was under a duty to provide such information and instruction, so far as was reasonably practicable.

 

R v. Associated Octel Co. Ltd (1996)

“Safety of Third Parties (Provision of Safe System of Work)”

The defendant company engaged some contractors to carry out repairs of a tank during a shut-down period. A permit to work was issued by the defendant but it proved to be inadequate and was not monitored. A contractor took a flammable liquid into the tank to clean the inner surface. However a flash fire developed and the contractor was seriously burned. The HSE successfully prosecuted Octel who were fined £25,000. The defendant appealed first to the Court of Appeal who upheld the conviction and then the House of Lords. The Lords held that if an employer engages a contractor who works on his or her premises then the employer, subject to reasonable practicability, must ensure the contractors health and safety. The House of Lords appeal was concerned with the definition of the term “undertaking”, which effectively includes any work carried out on the employer’s premises.

 

Rylands v. Fletcher (1861)

“Nuisance – Strict Liability”

The rule in this case is the most-often quoted example of strict liability. Basically it states that an occupier of land who brings onto it anything likely to do damage if it escapes, and keeps that thing on the land, will be liable for any damage caused by an escape.

The circumstances in the case were that Fletcher employed competent contractors to build a reservoir on his land. During the work, the contractors discovered an old mine whose shafts and passages connected with another mine on neighbouring land owned by Rylands. The contractors did not inform Fletcher and did not block up the shafts. When the reservoir was filled with water, the water escaped from Fletcher’s mineshaft into Ryland’s thereby causing damage.

Rylands sued on the grounds of Fletcher’s negligence. Fletcher himself had not been negligent as he had no knowledge of the existence of the shafts. He was not vicariously liable for the actions of the contractors as they were not his employees.

The case eventually went to the House of Lords on appeal who upheld the original judgement that Fletcher was liable in tort. In the original judgement by Blackham J, it was stated that: “We think the true rule of law is that the person who for his own purposes brings onto his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, is prima facie liable for all the damage which is the natural consequence of its escape”.

During the appeal Lord Cairns, in agreeing with the above statement, added the qualification that the rule only applied to a “non-natural” use of the land, and not to circumstances where a substance accumulated naturally on land. The word “natural” has since been extended to mean “ordinary”.

 

Cambridge Water Co. v. Eastern Counties Leather plc (1994)

“Nuisance”

Cambridge Water Co. purchased a borehole in 1976 to extract water to supply to the public. In 1983 it tested the water to ensure that it met minimum standards for human consumption and discovered that it was contaminated with an organochlorine solvent. On investigation, it emerged that the solvent came from the Eastern Counties Leather plc tannery, about 1.3 miles from the borehole. Since the tannery opened in 1879 until 1976, the solvent it used had been delivered in 40 gallon drums which were transported by fork lift truck and then tipped into a sump. Since 1976, solvents had been delivered in bulk and stored in tanks. It was then piped to the tanning machinery. There was no evidence of any spills from the tanks or pipes, and it was concluded that the water had been contaminated by frequent spills under the earlier system. Cambridge Water Co. claimed damages against Eastern Counties Leather plc alternatively for negligence, nuisance and under the rule in Rylands v. Fletcher.

At first instance it was found that Eastern Counties Leather plc could not have foreseen this type of damage and, therefore, disallowed the claims in nuisance and negligence. Further, it was found that the actions of Eastern Counties Leather plc constituted a natural use of the land and consequently dismissed the claim based on the rule in Rylands v. Fletcher.

Cambridge Water Co. Ltd. successfully appealed. Eastern Counties Leather plc then appealed to the House of Lords.

The House of Lords unanimously found that Eastern Counties Leather plc was not liable for the water contamination. The main issue was whether the foreseeability of the damage suffered by Cambridge Water Co. was relevant to a claim under the rule in Rylands v. Fletcher. The Lords accepted the original finding that a reasonable supervisor employed by Eastern Counties Leather plc would not have foreseen that the solvent would leak from the tannery floors down into the water source. It was thought at the time that any spilt solvent would evaporate and that the only foreseeable risk was that if large quantities were spilt, someone might be overcome by the vapour.

 

Armour v. Skeen (1977)

“Personal Liability of Executives”

A workman fell to his death while repairing a road bridge over the river Clyde. Mr. Armour was the director of Roads for the regional Council and as such the responsibility for supervising the safety of road workers was his. He had not produced a written safety policy for such work.

He was prosecuted under Section 37(1) of the Health and Safety at Work, etc. Act 1974 which imposes personal liability on senior executives.

Mr. Armours’ defence was that he was under no personal duty to carry out the Council’s statutory duties, one of which was the formulation of a detailed safety policy for the roads department. This was rejected. Section 37(1) imposed upon Mr. Armour the personal duty to carry out the Council’s statutory duty to prepare a written policy. This he had failed to do and was therefore guilty of an offence.

 

Tesco Supermarkets Ltd v Nattrass (1971)

“Due Diligence”

Tesco had set up a comprehensive and careful system to supervise employees in the labelling of goods in their stores to avoid offending against the Trade Descriptions Act. A store manager failed to check the work of his staff and as a result goods offered under a “Special Offer” poster were not available. Tesco were prosecuted and stated in their defence that the offence was “due to the default of another person” (albeit an employee). Tesco appealed to the House of Lords and the conviction was quashed on the grounds that their defence was valid as they had done everything possible to prevent offences being committed. This is known as a due diligence defence and senior managers may be able to avail themselves of it where junior members of staff or other persons commit offences. Note the use of the word may! Remember what you have learned about strict liability and non-delegable duties. The Tesco case involved the interpretation of the Trade Descriptions Act and not health and safety at work legislation.

 

Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd (1947)

“Vicarious Liability”

A hired a crane and driver to B. While on hire, A was responsible for paying the driver and could dismiss him but the hire agreement declared the driver to be B’s employee. Because of the driver’s negligence in operating the crane, one of A’s employees was injured. The case hinged on the question of whether the employer/employee relationship had passed from A to B.

It was held that the test was: “Who had the authority to direct or delegate to the workman the manner in which the vehicle was driven?” Here, in operating the crane, the driver was using his own discretion which had been delegated to him by his regular employers. If he made a mistake in operating the crane, this was nothing to do with the hirers.

The power to control the method of performing the work was not transferred from A to B, therefore A retained control over the driver and was vicariously liable for the driver’s negligence.

 

Caparo v. Dickman (1990)

“Duties Owed to Others”

The common law duty of care owed by employers to their employees is founded on the contractual relationship between them. The duty owed to others that may be affected by the employer’s activities is not defined with the same precision. It is based on the principles of negligence in that a duty of care must first be established. This used to be decided on the basis of the neighbour principle. However, the notion of reasonable foresight is unquestionably too wide and has caused problems in civil actions in many areas of tort e.g. actions for nervous shock. It has therefore been further refined.

Nowadays it is usual to talk of a three-stage test as defined in Caparo v. Dickman (1990):

• Reasonable foreseeability;
• Proximity; and
• Is it fair and reasonable to impose a duty?

The last step brings in the concept of policy in which the courts have to balance the needs of an injured claimant against that of opening the “floodgates” and creating an indeterminate liability.

 

Walker v. Northumberland County Council (1995)

“Stress”

Established the precedent that an employer can be held liable for mental injury to an employee caused by work-related stress. This judgement underlined the employer’s duty of care to provide safe systems of work in respect of occupational stress as well as other hazards, and to take steps to protect employees from foreseeable risks to mental health.