Transcript Case Law - Health and Safety for Beginners

Case Law Examples
NEBOSH Diploma Study Guide
Complied by Berni Carey Oct 2009
Disclaimer – This is my personal list, you may wish to
come up with others. I do not claim this to be the only
case law examples needed whilst studying the diploma.
“Absolute Duty”

Summers (John) & Sons v Frost (1955)
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Frost injured his thumb on a grinding wheel
Court held that Factories Act required ‘all
dangerous part to be fenced’ – therefore an
absolute duty to guard all parts, even if doing
so prevented the machine being used.
“Practicable”

Adsett v K and L Steelfounders and
Engineers (1953)

Practicability is that of current knowledge and
invention – once something is found to be
practicable it is feasible and must be done
irrespective of cost or inconvenience.
“Reasonably Practicable”

Edwards v National Coal Board (1949)
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Edwards was killed in a coal mine rock fall.
The case established that ‘reasonably
practicable’ allowed a risk assessment of the
benefit v the costs (time, trouble or money).
‘Practicable’ or ‘Reasonably So’
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Marshall v Gotham & Co.

Marshall was killed when the mine roof fell in.
It would have been ‘practicable’ to shore up
the entire roof system, but not ‘reasonably
so’, given that it was not known there was a
fault there. To have shorn up the entire roof
of the mine ‘just in case’ would not have been
reasonable in the circumstances.
Helpers' liability in tort

Baker v. T E Hopkins & Son Ltd (1959)
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A doctor died whilst attempting to give aid to 2
workers (who also died).
The defendants were liable in respect of the death of
the employees and also of the doctor: it was a natural
and probable consequence of the defendants'
negligence towards the employees that someone
would attempt to rescue them; the defences of novus
actus interveniens (‘new act intervening’) and volenti
non fit injuria (‘to a willing person, no injury is done’)
could not be successfully relied upon against the
doctor's dependants .
Duty to trespassers
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British Railways Board v Herrington (1971)
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Child was injured on the lines after getting through a
broken 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.
Note - Overruled Addie & Sons v Dumbreck [1929]
an ‘occupier … only liable to a trespasser… injured…
intentionally or recklessly’.
Self employed regarded as
‘employees’

Ferguson v John Dawson and Partners Ltd
(1976)
 Ferguson fell off a roof while removing some
scaffolding boards.
 both parties labelled Ferguson a "selfemployed labour only subcontractor“.
 Court held the relationship between them was
that of employer and employee.
Employers duty to maintain
equipment
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Barkway v Sth Wales Transport Co Ltd (1950)
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Man killed in a coach crash due to burst tyre.
Company could show a system for inspecting and
testing tyres.
However, they did not require drivers to report
incidents where tyres could be damaged thus held
liable for negligence.
Employers duty to maintain work
equipment

Bradford v Robinson Rentals Ltd (1967)
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Driver suffered frostbite, driving 400 miles
during a severe cold spell in an unheated van
with cracked windows.
Employers held liable for failing to provide
suitable plant.
Liability does not apply
retrospectively…

Cambridge Water Co v eastern Counties Leather
plc (1994)
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Tannery which had permitted perchloroethane to
percolate into the aquifer.
House of Lords unanimously found that Eastern
Counties Leather plc was not liable for the water
contamination.
Lords accepted that Eastern Counties Leather would
not have foreseen that the solvent would leak from
the tannery floors down into the water source.
Claim of tort
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Corn v Weirs Glass (Hanley) Ltd (1960)
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A successful claim of tort of breach of duty
requires the loss to be consequential to the
breach.
A glazier fell from a stairs with no handrail,
while holding a sheet of glass with both
hands.
The fall was not consequential to the lack of
hand rail since he could not have held it if it
were there.
Tort – escape of stored materials
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Rylands v Fletcher (1868)
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Landmark case.
Rylands built a reservoir.
Disused mine workings had been found during
construction but not sealed off.
Led to Fletcher’s mines being flooded.
Ruling “the person who for his own purposes brings
on his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it at his
peril...”
Tort - duty of care to vulnerable
employees

Paris v Stepney Borough Council (1951)
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Paris was blind in one eye but he concealed
this until examined by a company doctor.
Was given 2 weeks notice (1950 remember) –
2 days before leaving was struck in good eye
by piece on metal, blinding him.
On Appeal - Council owed a special duty of
care to Paris and had been negligent in failing
to supply him with goggles.
Employer liability for latent defects
in tools or equipment

Davie v New Merton Board Mills Ltd (1958)
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The claimant lost his claim against his employer
following an injury from a tool with a hidden defect. It
was held that the employer was not negligent.
Led to the Employers' Liability (Defective Equipment)
Act 1969. Providing that if an employee is injured in the
course of his employment as a consequence of a defect
in equipment, provided by his employer for use in
connection with his business, then that defect will be
attributable to the negligence of the employer.
However, any damages paid by the employer can then
be recovered from the manufacturer or other
responsible party.
Duty to provide safe system of
work

General Cleaning Contractors v Christmas (1952)
 Window cleaner injured when he fell after a
sash window he was holding, suddenly
moved.
 Company not negligent of failing to provide
equipment, e.g. ladders, safety straps etc.
 Company were negligent of providing a safe
system of work, e.g. instructing workers to
test windows for safety.
Systems of work
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Speed v Swift (Thomas) & Co Ltd (1943)
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Lord Green defined ‘Systems of Work’…
It may be the physical layout of the job – the
setting of the stage, so to speak – the
sequence in which the work is to be carried
out, the provision in proper cases of warnings
and notices, and the issue of special
instructions.
Non-delegatable duty of care.
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Wilsons & Clyde Coal v English (1937)
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English was crushed at work and claimed damages.
The employer claimed their agent was responsible for
safety at that workplace (a mine).
Ruling: The employer's duty to his employees is
personal and non-delegable.
He can delegate the performance of the duty to
others, whether employees or independent
contractors, but not responsibility for its negligent
performance.
Duty of care – Stress (1)…
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Walker v Northumberland County Council (1995)
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Plaintiff was a Social Worker Team Leader, who
reported stress from workload, eventually having a
breakdown.
On return to work the promised assistance was
inadequate and 2nd breakdown resulted, forcing
retirement.
The council was found to have breached its duty in
respect of the second nervous breakdown, though not
the first.
Note - The first case in legal history where an employee was awarded damages
for 'psychiatric injury' suffered a result of work related stress.
Duty of care – Stress (2)…
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Sutherland v Hatton and others (2002)
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Court of Appeal heard 4 cases relating to
‘Stress’ awards at lower court.
Overturned 3 of 4 awards, because the
individuals had not taken any action to inform
their employers of their problems.
4th case (Jones v Sandwell MBC) not revoked
as she had informed her employer but
received no help.
Higher Standards expected from
experienced employee…
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Qualcast (Wolverhampton) Ltd v Hayes (1959)
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Experienced worker splashed with molten metal.
Spats were available, but not worn and not enforced
by employer.
Employee failed to gain compensation as they had
chosen not to make use of it at their own risk.
Contributory negligence
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Uddin v. Associated Portland Cement Mfrs. Ltd.,
(1965)
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Uddin was employed in a cement factory.
He went where he was not authorised to be in order
and climbed up to a position where there was
unfenced machinery. As a result he became entangled
with a revolving shaft and lost an arm.
It made no difference that Uddin was in a part of the
factory where he was not supposed to be or that he
was doing something that had nothing to do with his
work.
Responsibility was apportioned on the basis of 20%
to the defendants and 80% to the plaintiff.
Volenti non fit injuria
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ICI v Shatwell (1964)
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2 employees injured when they ignored
explosive regulations and company policy.
Employers could successfully raise ‘Volenti’ as
defence.
The defence of ‘volenti non-fit injuria’ will
apply when there is true and free consent to
the risk.
Master/servant relationship
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Mersey Docks & Harbour Board v. Coggins &
Griffiths (Liverpool) Ltd. (1947)
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Coggins and Griffiths hired a crane and driver from
the Mersey Docks and Harbour Board. Newall, the
driver, drove the crane negligently and injured Mr
Mcfarlane.
Contract between the Board and the hirers stated that
the driver was to become their employee for the
duration of the hire.
Judgement - Control over Mr Newall's work had not
passed to the hirers.
A safe place of work…

Paine v Colne Valley Electricity Supply Co (1938)
 Found the employer liable after an employee
was electrocuted because a kiosk had not
been properly insulated.
Vicarious Liability (1)
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Smith v Crossley Bros Ltd (1951)
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An employer may be held criminally liable or liable in
common law for the negligent or unlawful acts of a
member of staff, even though the member of staff
wilfully disobeyed the express instructions of his/her
employer.
Apprentices engaged in horseplay injected compressed
air into a 3rd person.
The employers were held not liable.
Staff acted negligently “on a frolic of his/her own”
independently of the job.
Vicarious Liability (2)
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Lister v Romford Ice & Cold Storage Co. Ltd.
(1957)
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Father and son were employed by the same company.
Son negligently handled a vehicle, causing injury to
his father.
Father sued the company for the negligence of the
employee, his son.
Company (their insurance company) succeeded in
obtaining similar damages from the son.
Vicarious Liability (3)
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Rose v Plenty (1976)
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A milkman (against company orders) took a 13-yearold boy to help him on his round, and the boy was
injured through the milkman's negligent driving.
The boy sued both the milkman and the dairy.
The trial judge found that the dairy was not liable.
The Court of Appeal found the dairy vicariously liable
for the boy's injuries. The boy was actually helping to
deliver the milk, and so the driver's action was an
unauthorised way of performing his duties.
Practicability of precautions
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Latimer v. AEC Ltd (1953)
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A freak flood left the floor oily.
Employer used all available materials to absorb the
hazard.
Plaintiff came on shift unaware of the problem,
slipped and crushed ankle.
On Appeal - The employer took every step that
reasonably could have been taken in the
circumstances and in so doing had negated any
possible allegation of negligence .
Neighbour principle
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Donoghue v Stevenson (1932)
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Established the modern tort of negligence.
Donoghue claimed illness after consuming a drink of
ginger beer which contained a ‘snail’.
Eventually settled out of court.
Lord Atkin’s remarks… Who, then, in law, is my
neighbour? The answer seems to be - persons who
are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the
acts or omissions that are called in question.
Employment Right Act 1996

Employee has the right not to be subject
to detriment (s44) or dismissal (s100) on
the grounds that as a designated H&S
employee they were doing or proposed to
do their job or were performing their role
as a Safety C’ttee member.
Employment Right Act 1996 (s100)
Protection for Employees
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Masiak v City Restaurants Ltd
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Chef dismissed for refusing to cook chicken
which he considered unfit for consumption.
On appeal, case upheld as s100 of the ERA
could refer to ‘other persons’ other than other
employees, in this case the paying customers.
Employment Right Act 1996 (s100)
Protection for Employees
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Barton v Wandsworth Council (1995)
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Ambulance driver disciplined for complaining
about lack of trained escorts when
transporting patients with disabilities.
Tribunal ruled in his favour – the actions taken
against him were a detriment when he voiced
genuine concerns for his own safety and that
of the patients.
Employment Right Act 1996 (s100)
Protection for Employees
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Costain Building & Civil Eng v Smith
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Smith was an ‘Independent Consultant’
employed through an Agency.
Dismissed after writing critical Safety Reports.
On appeal, dismissal upheld as s100 was for
employees protection but Smith was
employed by the Agency, not Costain.
HSWA s2 and s37
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J Armour v J Skeen
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(Procurator Fiscal Glasgow)
(1977)
Armour was Director of Roads for Local Authority –
Workman fell to death from a bridge.
Corporate Failure to have ‘safe system of work’
HSWA s2
Individual Failure – not a ‘Director’ within meaning of
s37, but was within scope of ‘manager…or similar
officer’. It was his individual failure to provide the
SSW. HSWA s37
HSAW s2(1) general duties
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R v Gateway Foodmarkets
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Employee fell through a trapdoor.
Company liable for actions of staff, in leaving
the hatch open, even though they had taken
all reasonable precautions at a senior
management level.
HSWA s2(1) general duties
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Bolton Metropolitan Borough Council v
Malrod Insulations Ltd
EHO discovered decontamination unit
available for use by Asbestos removal
team had electrical faults.
Successful prosecution for making the
equipment available even though not yet
in use.
HSAW s2(1) general duties
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Langridge v Howletts Zoo & Port Lympne Estates
Ltd
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Prohibition Notice issued by local authority preventing
keepers entering Tiger enclosure after death of a
keeper.
Zoo argued that keepers must enter the enclosure to
bond with the animals.
On appeal, keepers allowed to enter the enclosure
with modified procedures.
The Act is not concerned with the working being
done, but the manner of performing it.
HSWA s3
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R v British Steel plc (1995)
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A sub-contractor working under supervision of
a British Steel supervisor was killed.
Under ‘Vicarious Liability’, the supervisor had
failed in his duty, therefore British Steel had
failed its employers duty under s3.
HSAW s3
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R v Mara
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Director of a small cleaning company contracted to
clean a supermarket.
Faulty cleaning machine left on supermarket
premises.
Supermarket employee used the machine and was
electrocuted.
Supermarket employees were ‘persons who may be
affected by the way the cleaning company carried on
its undertaking’.
HSAW s3
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R v Nelson Group Services (Maintenance) Ltd
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A properly trained and competent gas fitter left a
fitting in a dangerous condition.
It was held that an isolated act of negligence by an
otherwise completely competent employee did not
render the employer liable.
Note – this defence is effectively closed by MHSWR 1999 Reg 21 – ‘it
will not be a defence for an employer to argue that the contravention
was due to the act or default of an employee… or an person appointed
as a H&S Assistant under Reg7.’
HSWA s3
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R v Swan Hunter Shipbuilders Ltd (1982)
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8 workers killed during construction of HMS Glasgow due
to explosion in an oxygen enriched environment.
Swan Hunter had known of the potential risk and
informed their own employees.
Swan Hunter failed to inform other contractors and subcontractors.
Swan Hunter had a duty to ensure the health and safety
of its own employees. If the ignorance of another
company’s employees places its own employees at risk
then it is the company’s duty to inform the employees of
another of any special risks within its knowledge.
HSAW s3
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R v Associated Octel Co Ltd (1996)
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An employee of a contractor badly burned
while conducting repairs to a chemical tank.
The Contractor was prosecuted under s2 for
the injury to their employee.
Octel were prosecuted under s3 - the
maintenance of the tank was part of their
undertaking – that it was being carried out by
a contractor was irrelevant, as it was on their
site so it was still under their control.
HSAW s3
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R v Board of Trustees of Science Museum (1993)
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Alleged that the public put at risk of exposure to
Legionella Pneumophilia (LP) due to failure to
instigate regular system of cleansing Air Con system.
It was not necessary to show that the public had
inhaled LP, only that there was a risk of doing so.
Court of Appeal upheld conviction.
HSWA s4
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Westminster City Council v Select Managements
Ltd
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Improvement Notice relating to lifts and electrical
equipment in block of flats.
Company appealed on grounds that they were
‘domestic premises’ iaw s4 of HSWA.
Court of Appeal upheld that the ‘Common Areas’ were
not domestic but available for use by others as a
place of work or where they may use plant, e.g. lifts.
HSWA s4
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Moualem v Carlisle City Council (1994)
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Defendant operated a Children’s Play Centre
and convicted of failure to comply with
Improvement Notices.
Children were using ‘plant’ in a non-domestic
premises.
Corporate Manslaughter
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Corporate Manslaughter and Corporate Homicide
Act 2007
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The offence is concerned with corporate liability and
does not apply to directors or other individuals who
have a senior role in the company or organisation.
The first ever successful UK Corporate Manslaughter
prosecution was of the company involved in the Lyme
Bay kayaking deaths (1993).
Previously, cases such as the Tebay rail deaths (2004),
the Herald of Free Enterprise RORO Ferry disaster
(1987), Connington South rail crash (1967) had
resulted in prosecution of individuals.