Update: health and safety

Foreseeable hazards

It is often a misconception on the part of an employer when assessing risk that a specific accident must be identified rather than a specific safety risk. The Scottish case of Johnstone v AMEC Construction Ltd [2010] CSIH 57 IH (Ex Div) reaffirmed the approach taken by the court in Robb v Salamis (M&I) Ltd [2006] UKHL 56 that it is not necessary to foresee precisely the circumstances of an accident for there to be a breach of regulations.

The claimant James Johnstone (JJ) was a security guard on a construction site of a school. When the accident occurred, he was working on the night shift. The construction site was enclosed by fencing. JJ had patrolled the construction site earlier in his shift and all the fencing panels had been upright. Each fence panel was designed to connect with the panel next to it. The fence panels all had a leg at each end with a metal foot attached to one leg and no metal foot on the other leg (which allowed it to be connected to the panel next to it).

When JJ patrolled the site again he found that one of the fence panels had blown over. Unlike other sections the fence, the panel that had blown over was not linked to the next fencing panel. Instead, the leg without a foot was inserted into a rubber boot used with another type of fencing.

The panel had notices on it which increased its wind resistance. It had deliberately been left unfixed to the next panel of fence to enable access to a car park area.

JJ attempted to upright the fallen panel. He failed to do so and tripped on the rubber boot sustaining injury.

At first instance, JJ had alleged there had been a breach of regulation 4(1) of the Provision and Use of Work Equipment Regulations 1998 (PUWER), which places an obligation on an employer to ensure that work equipment is constructed or adapted to be suitable for the purpose for which it is used or provided, and a breach of regulation 5 of PUWER which dictates that that work equipment is to be maintained in an efficient state, working order and in good repair.

He further alleged that there was a failure under regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996 (CHSWR) in failing to provide safe access to and from his places of work.

The sheriff at first instance rejected the case under regulation 4, finding that the fencing was suitable and that it was not reasonably foreseeable that it would blow down. He rejected the case under regulation 5 on the basis that just because the barrier fence fell over in windy conditions did not mean the work equipment was not maintained in an efficient state.

JJ appealed. On appeal, the court upheld JJ's claim and agreed that there was in fact evidence of breaches of PUWER. The court found the site was windy and that similar barriers had previously blown over in the wind. The court gave guidance that the question to ask in this case was whether it was foreseeable that there was a risk that the barrier fence might be blown over and potentially cause injury and damage. They held that it was.

The court also determined that a proper risk assessment would have identified the risk that the free-standing section of fence might blow over and that that could affect the health and safety of any person in the vicinity.

This demonstrates the correct approach to take in considering the regulations is not whether a particular accident could occur, but instead what is a foreseeable hazard which poses a risk of injury. There is therefore an obligation on an employer to anticipate situations which may give rise to accidents rather than anticipate specific accidents.

Failed risk assessment

In another appeal case, Threlfall v Hull City Council [2010] EWCA Civ 1147, the Court of Appeal again gave guidance on the approach to be taken when applying health and safety regulations.

The case concerned a Mr Threlfall (T) who was a 'street scene operative'. T appealed the decisions of lower courts that he had failed to establish a breach of regulation 4 of PUWER by his employer, Hull City Council (HCC).

T had cut his hand clearing rubbish from a garden on council property. HCC had issued him with standard gloves made of cloth and suede which were standard for street scene operatives; however, the gloves were not cut resistant. T was handling a bin bag full of rubbish, wearing the standard gloves when he cut himself. T did not know what object in the bag had caused the cut. T's case was that HCC should have provided him with better quality gloves when he was undertaking garden clearance.

The trial judge rejected T's claim, finding that he was the author of his own misfortune by failing to look inside the bag before lifting it. He also rejected T's claim that HCC was in breach of regulation 4 of the PUWER and agreed with the HCC view that the risk of injury was 'very low indeed' since these gloves had been used for years without incident there was no duty to provide highly protective gloves.

T appealed and the appeal judge upheld the decision, finding that the standard gloves were appropriate and effective unless there was some reason to anticipate a heightened risk. He made reference to the lack of historical incident and found that the 'standard [imposed by the regulations] is not an absolute duty to prevent injury'.

However, on a second appeal, the court found that although HCC had carried out a general risk assessment it was not sufficient. The assessment had failed to recognise that there was a risk that employees might suffer a laceration as the result of contact with a sharp object which might be hidden from view and therefore not avoidable by taking ordinary care. If the general risk assessment had been properly carried out, the employer would have recognised that as a specific risk and would have recognised the need to consider the suitability of the gloves it provided.

In allowing T's appeal, LJ Ward explained in his judgment that the 'first task of the judge in a case such as this will often be to decide whether regulation 4 applies'¦ if the judge does have to decide this issue, it seems to me that he is not required to make any assessment of the frequency or gravity of the risk. If a residual risk exists, the regulation is engaged, provided that the risk of occurrence is not so slight as to be de minimis or the nature of the harm so trivial that it should properly be ignored.

This case demonstrates the need for employers when undertaking a risk assessment to approach the assessment as a method of identifying potential risks and not potential accidents.

Below expected standards

In the appeal case of Caerphilly CBC v Button [2010] EWCA Civ 1311, Caerphilly CBC (CCBC) appealed against a decision that it was liable for breach of statutory duty and negligence in a claim brought by their employee, Ms Button (B). B was injured when, after parking her car, she stepped from the tarmac surface of the car park onto a verge and caught her trailing foot on the top of the kerb.

The car park was accessed by a driveway with a downward gradient. A sloping earth verge separated the driveway from the car park. The verge was rough and muddy and topped by a kerb stone with a tripping edge of three inches. It was common practice for employees to walk across the verge as a means to gain access their place of work.

There was a proper, and longer, route to walk the length of the car park and along the driveway to access the building. However, no instruction was given not to use the verge and there was no evidence of previous accidents or complaints.

Following B's accident the verge was concreted over. The judge at first instance found that use of the verge gave rise to a foreseeable risk of injury because the tripping edge formed by the kerb stone was an obvious danger. The accident was a simple trip; however, B should have taken more care in negotiating a crossing point which she knew was not purpose made.

The judge found breaches of the WHSR, namely regulation 5 which prescribes that the workplace should be maintained in an efficient state and regulation 12 which dictates that every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used. A finding of 20 per cent contributory negligence was made against B.

On appeal, CBCC submitted that the trial judge's finding that the sole cause of the accident was a simple trip over the kerb and the presence of the verge was not relevant. CBCC also submitted that the kerb stone was unremarkable and not one where an employer could be reasonably expected to foresee danger or one in which the access was unsuitable for the purpose intended. CBCC's appeal was dismissed. The court confirmed that regulation 12 and not 5 applied.

The court gave a methodical approach to the application of regulation 12 in finding that: (a) regulation 12 applied to tripping hazards; (b) there was sufficient control of the premises by CBCC; (c) the site of accident was a 'traffic route' since employees frequently crossed the verge there; and finally (d) the route was not 'suitable for the purposes for which it was used' since a person's footing would be affected by the verge being made of earth rather than solid ground. CBCC's appeal was dismissed for failing to take measures to deal with the hazard presented by the slope and the kerb, and the court found that, in addition to the breach of regulation 12, CBCC fell below the standard expected of them at common law.

Low-risk workplaces

It is not clear given the current landscape whether there will be a move to provide education in the appropriate application of the Health and Safety Regulations. Lord Young's report Common Sense, Common Safety, published on 15 October 2010 recommended simplifying the risk assessment procedure particularly for low-hazard work.

The report identifies 'low-hazard workplaces' as schools, classrooms and shops. It notes that accidents in offices only make up three per cent of overall workplace claims.

On 21 October 2010, the first reading of the Low Hazard Workplaces (Risk Assessment Exemption) Bill 2010 took place. The bill, if given Royal Assent, would exempt employers from producing a written risk assessment in low-hazard workplaces.

It remains to be seen whether the low occurrences of accident in 'low-risk environments' is because of the current requirement for risk assessments to be made. Assessments allow risks to be identified and rectified and therefore reduce the number of 'preventable accidents'.

If risk assessments are no longer required in low-hazard environments, then this may increase the number of preventable accidents which will increase the numbers of claims made by employers. In turn, this will result in increased cost to an employer through higher insurance premiums and staff sick days. It therefore remains to be seen whether risk assessments are cost effective or cost ineffectual.