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Danger at work

What are an employer’s duties with regard to defective equipment? Geraldine McCool reports on the risks

25 March 2005

There has always been risk in litigation but the conditional fee funding regime, now firmly established in personal injury cases, focuses on risk in a new way. Litigators are told to assess, reduce and monitor risk and, crucially, law firms take on the risk associated with the cases. It is an irony of the system that judges never see the full extent of the ‘no win’ element of ‘no win, no fee’. They preside over lost trials, but they do not see the cases that are abandoned before trial, including significant numbers abandoned prior to issue. Therefore, they never see the associated cost nor the risk factors that materialise and signal the end of the case. So has this combination, together with the perceived ‘compensation culture’, led to a hardening of judicial attitudes?

Employer’s liability
The area of employers’ liability has traditionally been one of well defined numerous duties that recognise the position of the employer in terms of ‘control’ exercised over the employee and generally places a heavy burden upon the employer to protect its workforce. The duties exist in common law and in statute. Statutory Regulations are bolstered both by Approved Codes of Practice and by Guidance from the Health & Safety Executive. The legislation includes the ‘six-pack’ passed under s 47(2) of the Health & Safety Work Act 1974, implementing six Directives passed under the Framework Directive 89/391/EEC. Cases arising under the six-pack often have risk at their core although the ‘risk assessment’ under reg 3 of the Management of Health & Safety at Work Regulations 1999 bears no resemblance to the ‘risk assessment’ compiled by the lawyer under the conditional fee scheme!

Defective equipment
Employees are, of course, particularly vulnerable to accidents caused by defective equipment. This has long been recognised and the Employers’ Liability (Defective Equipment) Act 1969 was designed to make it easier for an employee to bring a claim in those circumstances. However, the equipment had to be defective and it was not enough to be unsuitable or inadequate. The matter has been taken further by the Provisions & Use of Work Equipment Regulations 1998 (PUWER) and the Personal Protective Equipment Regulations 1992 (PPE).

Narrow view of risk
There have been signs of hardening of judicial attitudes illustrated by Fytche v Wincanton Logistics Plc [2004] UKHL 31, which held that the claimant milk tanker driver could not recover under PPE when he developed frostbite in his little toe whilst digging his way out of snow, because the boots he had been provided with by his employer had a hole in them. The majority of their Lordships took a narrow view of the risk. They indicated that the hole did not create a secondary risk, nor indeed increase the risk because the risk of water seeping into the boot was not a risk in the course of the claimant’s employment; it would have been different if the boot had failed to protect the claimant’s toes from the risk that had been anticipated by his employers, namely the risk of something such as a milk churn falling onto and crushing the claimant’s toes. Therefore the strict liability regime that reached its high point under Stark v The Post Office [2000] ICR 1013, a case under PUWER, did not apply.
The fact that Lord Hoffman in Fytche referred to the case of Tomlinson v Congleton BC [2004] 1 AC 46 illustrates how the concept of ‘the nanny state’ which is often linked to compensation culture has crept into employer’s liability claims. Tomlinson was not an employer’s liability case, but it was one that concerned risks.
Mr Tomlinson dived into a lake within the defendant’s boundaries suffering catastrophic spinal injuries. He had ignored warning signs stating “Dangerous Water No Swimming”, as indeed did others. The claimant succeeded in the Court of Appeal under the Occupiers’ Liability Act 1984 and a significant factor was that the defendant’s own adviser had recommended landscaping the lake to prevent access by visiting members of the public. This decision was however overturned in the House of Lords.
Their Lordships examined risk. There was the risk created by the state of ‘the premises’, the lake, and whether it was dangerous compared to other stretches of open water. So their Lordships had to consider the risk to all users, from the families who had picnicked on the shores of the lake to those who fished, sailed and canoed in it, right through to those who chose to swim or dive in it. There was also the risk created by the claimant, an adult of full capacity, who voluntarily engaged in an activity that had inherent risk and which tragically did materialise for him.
It is not easy to see the analogies between the two cases in terms of free will and social value. The activities undertaken by the employee in Fytche, who was in the course of his employment wearing equipment provided by the employer which did have a defect, is far removed. Indeed Lord Hoffman in Tomlinson had distinguished cases where there was no genuine or informed choice, reciting cases of employees whose work required them to take a risk.

Broader definition
There has, however, been a return to the broad definition of risk by the Court of Appeal in Ball v Street [2005] EWCA Civ 76. The claimant lost the sight in his left eye when a coil spring fractured from the hay-mowing machine he had been adjusting, ricocheting into his eye. The case proceeded upon an alleged breach by the defendant of his obligation to maintain the machine in efficient working order under PUWER reg 5(1). The Court of Appeal found that there was abundant proof that the mechanism of the machine had failed and that that failure had caused the injury (see Galashiels Gas Company Ltd v Millar [1949] AC 2755). They also found that the imposition of an absolute duty by the Regulations was designed to make the employee’s task easier by simply requiring him to prove that the mechanism of the machine failed to work efficiently, or was not in good repair, and that such failure caused the accident. They held that the judge at the first instance was wrong in law to find that reg 5 related solely to ‘identified risk’ and that because the accident was not foreseeable there was no breach. Fytche was therefore distinguished. Crucially, the Court of Appeal felt that the focus of the Regulations was not upon the identification and assessment of specific risks, but was instead upon general considerations of safety against the broad risk of accidental injury inherent in using equipment that was not maintained in good repair and efficient working order.

It is interesting in the cases of equipment provided by the employer to look at the test of ‘defect’ under the Consumer Protection Act 1987. Would the person boarding the Clapham omnibus believe a boot to be defective because it had a hole in it or a hay-mowing machine to be defective because a spring had flown out? The answer must surely be yes. Whether that person would believe the bus to be defective because it had no shield to protect the driver from assault, being the facts of Yorkshire Traction Company Ltd v Searby [2003] EWCA Civ 1856 is a much more difficult question. Similarly, if the step onto the bus was wet as a result of rain is there a failure to maintain the bus in an efficient state? The dangers to the driver and passenger alike in having to get on and off the bus by using the step are easily foreseeable and yet the Court of Appeal found against the claimant in Green v Yorkshire Traction Company Ltd [2001] EWCA Civ 1856.
The fact is that the assessment of risk is subjective. Just as risk assessments on conditional fee cases differ from firm to firm, so will risk assessments carried out by employers. The same applies to the assessment of risk by judges in cases where, by definition of there being a personal injury claim, something has gone wrong and a risk, whether foreseen or unforeseen has materialised. In these circumstances a broad approach to risk that recognises the difference in the relationship between employer and employee is justified.

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Procedures Costs Funding Health & Safety