Update: health and safety

It can be said that the courts are continuing to make sensible, balanced and pragmatic decisions in relation to health and safety. However, with the juxtaposition of the HSE signing an agreement with the Building Control Alliance in an effort to work more closely to improve health and safety standards, and the report by Lord Young due on reducing the 'overbearing' health and safety laws and regulations, does this area really require reform?

Breaching the Work at Height Regulations

In the Court of Appeal case of Bhatt v Fontain Motors Ltd [2010] EWCA Civ 863, the defendant (F) appealed against a decision that it was liable for injuries sustained by Mr Bhatt (B) when he fell from a ladder at work.

B had been employed by F in its motor garage where car bumper kits were stored in a loft space that could only be accessed through the removal of a ceiling panel. The ceiling panel was only accessible by using a long ladder. F's managing director (M) had put in place a system of using a long ladder to access the loft which specified the ladder had to be footed when used. B was injured when he failed to wait for the ladder to be footed before he used it. He fell and sustained injury.

At first instance Judge Collins held that the accident had occurred as a result of F's breach of regulation 6(2) of the Work at Height Regulations 2005 (WAHR), which requires that work at height should be avoided when it is reasonably practicable to undertake the work at ground level. F was also held to have breached regulation 7(2) of the WAHR by failing to select appropriate equipment for work at height, where the judge found that a pull-down ladder would have been more appropriate equipment.

B was awarded damages but these were reduced by one third for contributory negligence because B accepted that, if the ladder had been footed, the accident probably would not have occurred.

F appealed the decision on the basis that B, in climbing the ladder without waiting for it to be footed, ignored the system put in place and argued that B was therefore wholly to blame for the accident.

The Court of Appeal dismissed the defendant's arguments and held that in determining liability it was appropriate to start with the regulations rather than with B's conduct. The regulations were formulated to first avoid work at height and if this could not be avoided, then it was F's duty to minimise the risks involved when employees were required to work at height. B fell while working at height when he should not have, in the circumstances, been required to work at height at all. It was therefore difficult for F to maintain an argument that B was wholly to blame for the fall. The judge at first instance was correct to find that breaches of the regulations exposed B to a risk to which he would not have been exposed if the regulations had been complied with. B's failure therefore only went to contributory negligence.

LJ Sedley explained in the judgment: 'There will be some cases in which it is open to, and arguably incumbent on, the claimant to say what ought to have been done by the defendant and why. There will be others in which the event itself calls for an explanation by the defendant of why it was not reasonably practicable to have guarded against it. In both kinds of case it will then be for the defendant to show why it was not reasonably

practicable to take the step in question. In many cases the burden will shift as the

evidence unfolds.'

This case confirms the courts' approach that application of the regulations is case dependant. However, even if the defendant is found in breach of the regulations, the claimant's conduct can also be held to account. Also, Sedley LJ's comments suggest that the burden of proof is fluid in respect of health and safety and will ultimately turn on the facts of the case. The regulations are applied on a basis of what is reasonably practicable rather than a strict liability approach. Some regulations such as the WAHR are put in place to ensure employers consider the risks involved in undertaking hazardous activities such as work at height and provide guidance as to how work can be planned so that it is carried out as safely as possible.

Common sense approach

In Mullen v Accenture Services Ltd [2010] EWHC 2336 (QB), the Court of Appeal did not agree that the breach of regulation 3 of the Management of Health and Safety at Work Regulations (MHASW) would apply where they would produce the illogical position for an employer.

The claimant (M) had been employed by the defendant (A). M claimed that during the course of his employment with A, he had been subjected to victimisation and bullying as a result of which he suffered a breakdown. M attributed his breakdown to A's negligence and breach of statutory duty. He alleged A had failed to comply with section 3 of the Management of Health and Safety at Work Regulations 1999 (HSWR) by failing to undertake a suitable and sufficient assessment of the risks which he was exposed to at work. He further submitted that, once there was a proven breach of regulation 3, it was unnecessary to prove that the particular harm was foreseeable.

Judge Harvey Clark explained that this approach could not be correct and instead applied the test of forseeability from Barber v Somerset CC [2002] EWCA Civ 76 and held that the question was whether the kind of harm to the particular employee was reasonably foreseeable and not whether psychiatric injury was foreseeable in a person of ordinary fortitude. The test had to be subjective and not objective. A was entitled to assume that, unless he was made aware that M had a particular vulnerability, he could cope with the normal pressures of his job.

The judge commented that, without foreseeability, 'a coach and horses would be driven through the careful enunciation of the law'. As such, there was held to be no breach of regulation 3.

This case further highlights how the courts are inclined to take a common sense approach to health and safety law to prevent application of the legislation in a manner which produces irrational results or ones that clearly contradict established case law.

A similar approach was adopted in Swain v Geoffrey Osborne Ltd [2010] EWHC 1108 (QB). S, a lorry driver, was injured in an accident on a building site where G was the main contractor and P the subcontractor. While undertaking remediation work at this site, a system had been put in place by G to wash the wheels of lorries before they left the site to prevent mud being spread. Once remediation was complete, P took overall control of the site. P stopped using G's system and instead put in a system of sweeping the road of mud and debris.

S had driven an articulated lorry to the site but, because he was unable to manoeuvre the lorry through the site entrance, he got out and stepped onto a footway to look at the lorry's position to see how he could get through. S alleged that he had slipped on mud on the footway injuring his ankle. G and P alleged that S was injured when jumping out of the cab when leaving the lorry.

S submitted the system relied on by G and P was not reasonably sufficient to protect employees and visitors to the site. S also argued that there was no scope for finding him contributory negligent in relation to his injuries if G and P were found not to have met the required standard of care.

Foskett J held that there was a failure to implement an effective system to ensure the footway was kept clear of mud. Although P was responsible for day-to-day site management, G had a continuing supervisory role and was responsible for ensuring that P had implemented a safe system. Foskett J, however, also held that S bore some responsibility for his own safety. The accident occurred on a wet morning and, looking at the matter objectively, S was obliged to take particular care given the surface onto which he alighted. S was held 25 per cent contributory negligent.

Again, this case indicates that courts expect both companies and individuals to take account of their actions rather than allowing a claimant to allege the sole cause of their misfortune was the other party's fault. The case also demonstrates how the common law runs alongside legislation to allow a flexible and common sense approach to be taken.

Education not reformation

So, do we really need to reform health and safety regulations? It seems that if cases reach the courts, a common sense approach prevails. Health and safety regulations are designed to prevent or protect against risk where it is reasonably practicable to do so, not, as the media often portray, to prevent the general public from having fun or to weigh down employers with pointless paperwork.

The benefits of the regulations can be demonstrated by the UK's credible record of safe work practices '“ the HSE European Statistics indicate that British rates of fatal injury in main industrial sectors are substantially lower than the European Union average. In contrast to the tabloid cry of health and safety regulations being 'a waste of taxpayer's money', regulations enable the public to enjoy activities with minimum risk to personal safety and save money paid out by way of compensation, time off work and treatment costs.

The current concerns in relation to health and safety are created by misguided interpretation of the regulations. The HSE is aware of the public misconception of health and safety regulations and publish 'Myth of the Month' in an attempt to dispel erroneous interpretation of the regulations. Rather than looking to reform the regulations, perhaps education about their application is the key. This will allow all interested parties to understand health and safety regulations so that the regulations elicit the confidence of the general public and not ridicule as they do now.