Legal Update July 2013

John Mitchell Head 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

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Breach of statutory duty – effect of breach

Wilson -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 compensation

Baker -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 handling

Ali 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 – windows

Wallace -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 machinery

Hyndman -v- Brown and Colin Bradley Ltd (Feb

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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 regulations

Willcock 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 work

Mitchell 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 hazard

Palfrey 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 negligence

Brumder -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 days

Reynolds -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

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corporate fun days

Blair-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

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Hazardous pursuits

Pinchbeck -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

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Hazardous pursuits

Wilson -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 floors

Hufton -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’ Liability

Richards 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 pitches

Sutton -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 manslaughter

Lion 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 Mitchell Head of Health and Safety