Update: health and safety

The government has continued with plans to reform the current health and safety landscape. Since the publication of the Young report, three more publications have arisen. We have Common Sense, Common Safety '“ Progress Report, which provides an overview of progress made in implementing Lord Young's recommendations. Then there is the Lofstedt Review, an independent review of health and safety legislation and a call for evidence that wants to determine whether there is scope to consolidate, simplify or abolish regulations and ascertain whether there is inappropriate litigation and compensation arising from current legislation. Finally, the Proposed Amendment to the Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 1995 (RIDDOR) has been published, which primarily aims to change reporting of injuries which incapacitate employees for three consecutive days to seven consecutive days as proposed by Lord Young.

It is interesting to consider the impact of the government proposal in the context of recent cases.

Ministry of fun

In Uren v Corporate Leisure (UK) Limited and the Ministry of Defence [2011] EWCA Civ 66, the claimant (U) was participating in a 'fun day' organised by his employer, the MoD. The day involved a game in an inflatable pool owned and managed by the first defendant (CL). U had watched others enter the pool head first and, when his turn came, U went head first into the pool hitting his head and breaking his neck. U brought claims against CL and the MoD for breach of duty to take reasonable care for his safety. Several allegations were made, including breach of regulations 3 and 10 of the Management of Health and Safety at Work Regulations 1999 (failure to carry out suitable risk assessment).

The trial judge dismissed U's case and found that the game posed a very small risk of 'serious' injury and did not mean that the defendants were in breach of their duty of care. He found that competitive activities were beneficial and almost never risk-free, and a technical breach in respect of the risk assessments was not causative of injury.

On appeal, Lady Justice Smith gave the leading judgment. She found the trial judge had ignored the risk of injury overall and focused only on risk of 'serious' injury and should have realised that the 'small risk' he observed had catastrophic consequences. She expressed that, where there is likelihood of serious injury, there is a greater need for precautions. Lord Justice Aitkins concurred and stated that the 'conclusion that the risk of spinal injury was small and was therefore acceptable was not sound and cannot stand'.

The CoA further found that the defendant's failure to carry out a suitable risk assessment could not be the direct cause of injury, but could be indirectly causative.

Smith LJ expressed that the failure to undertake a proper risk assessment can affect the outcome of a claim and that 'judges must be alive to that and not sweep it aside'. She pointed out that 'risk assessments are an important feature of the health and safety landscape' and that 'they can provide an opportunity for intelligent and well-informed appraisal of risk and can form a blueprint for action leading to improved safety standards'.

The appeal was upheld and the case remitted for re-trial. The case highlights the importance of appropriate risk assessments, reporting and investigation. In a case such as Uren, a RIDDOR report would have been made. The proposed changes to RIDDOR to report injuries which incapacitate persons for more than seven days will lead to a much less accurate picture of the work environment. It is likely that only extremely serious injuries will be reported and where, for example, an employee breaks a leg or arm and struggles back to work before the seven-day period expires, the occurrence of a significant injury will no longer be reported and independently recorded. This could lead to repeat offenders avoiding independent scrutiny.

Duty of care

The appeal case of Vaile v Havering LBC [2011] EWCA Civ 246 provides an example of how the precise mechanism of an injury need not be predicted for a claimant to succeed in a claim.

Vaile (V) appealed the dismissal of her claim against Havering London Borough Council (HLBC). In July 2003, V was violently assaulted by a special needs pupil (X) at a HLBC school for children with special needs. As a pupil with special educational needs, X was assessed and HLBC produced a statement of educational needs identifying X as having 'developmental delay'.

When admitted to the school, an informal assessment undertaken at the school found that X suffered from autistic spectrum disorder (ASD). The school did not request that X be reassessed or his statement updated. The school had a system for teaching pupils with ASD, but V did not have training in this. V was not advised X had ASD when he was placed in her class.

X had behaved violently twice in the two months leading up to the assault in July 2003. One incident involved another teacher and the other occurred in June 2003 when X bit V. V claimed that the failure to train her, inform her that X was assessed as having ASD, and take adequate steps after the other incidents of violence, meant HLBC had failed to provide her with a safe system of work.

At first instance, despite finding HLBC had failed in their duty of care, the trial judge considered that he had not heard evidence that the schooling of X was unacceptable or inadequate or causative of the incident. He found no reason for concern until June 2003 when an analysis of X's behaviour was required, but this would not have necessarily been completed by July 2003 when the assault occurred. He therefore dismissed the claim.

The CoA found that HLBC had not provided a safe system of work for V in failing to tell her that X had ASD and by failing to make appropriate educational provision for X. The case of Drake v Harbour [2008] EWCA Civ 25 was considered. The court accepted that V did not need to show precisely what the school could have done to avoid the incident; she just needed to demonstrate that, had she been appro-priately instructed in dealing with ASD children, she probably would not have suffered injury.

The case exemplifies how breach of duty can substantiate liability if a claimant can demonstrate preventative action probably could have avoided injury. It also highlights how simplification of risk assessments to a 'tick-box exercise' for low-risk environ-ments (described by Lord Young as classrooms, offices and shops) may not be universally appropriate in all situations particularly when dealing with the safety of the most vulnerable members of society, i.e. children.

Following fashion

In Baker v Quantum Clothing [2011] UKSC 17, the appellant employers (Q) appealed against a decision that they were liable for hearing loss sustained by Mrs Baker (B) before the entry into force of the Noise at Work Regulations 1989 (NAWR).

B was employed by Q between 1971 and 2001. Until 1989, B was exposed to noise levels of up to 90dB(A)lepd, leading to noise-induced hearing loss (NIHL). B sued Q and the case was heard as part of a group of test cases including claims against Pretty Polly and Meridian and others.

At first instance the court considered the applicable law at the relevant time. Section 29(1) of the Factories Act 1961 (FA) required that every workplace should 'so far as is reasonably practicable, be made and kept safe'. At common law the duty was to protect against reasonably foreseeable injury. The acceptable standard of noise for the average employer to adhere to was under 90dB(A)lepd, as per the 1972 Code of Practice published by the Department of Employment (COP 1972).

In 1987 a European draft directive was published, which eventually became the Noise at Work Regulations 1989. The court found that from 1987 'average employers' should have been aware of the risks posed by noise exposure between 85 and 90dB(A)lepd. The court considered it appropriate to allow a two-year period for employers to implement protective measures, meaning the average employer had no common law liability before 1 January 1990.

The court distinguished between employers with 'greater than average' knowledge, such as Meridian and Pretty Polly, who were deemed to have a date of knowledge from 1983 and, with the two-year implementation period, were in breach from 1985. B was the only claimant who succeeded in establishing she had NIHL; however, her case was dismissed on the basis that Q had not breached its common law or statutory duty towards her.

B appealed. The CoA upheld the common law position, but revised the implementation period for protective measures from six to nine months, meaning liability arose from January 1988 for Q and late 1983 for the more knowledgeable defendants. The CoA held that it was irrational to treat Q differently from the more knowledgeable defendants (despite the fact it operated on a much smaller scale). Q was therefore found to have a greater than average knowledge.

Smith LJ interpreted the meaning of 'safe' under section 29 FA as 'objective, unchanging and independent of foresight', effectively reversing the burden of proof onto the defendant. The only defence was for an employer to show it was not reasonably practicable to reduce or avoid noise exposure. The Health and Safety at Work Act 1974 succeeded the FA and Smith LJ held that, by late 1976, an average-sized employer in the industry could and should have made an informed assessment of the risk of noise below 90dB(A)lepd. Q was held liable from January 1978.

The defendants appealed and at the Supreme Court a majority decision was reached on a 3:2 basis in favour of the reasoning provided at first instance. The court held that employers with 'average' knowledge were potentially liable from 1 January 1990; i.e. two years after the 1987 European draft directive and those with greater than average knowledge from 1 January 1985. Q was again considered to fall into the 'average' category.

In respect of section 29 FA, the Supreme Court considered that whether a workplace was safe should be objectively assessed by reference to the knowledge and standard of the time. Lord Mance stated: 'Whether a place is safe involves a judgement, one which is objectively assessed'¦ but by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety.'

The purpose of the FA was therefore there to reinforce the common law obligation of an employer to take care of the safety of its workers. The ruling provides clarity that whether an employer was in breach of its statutory duty must be judged in accordance with the standards at the relevant time.

The current government reviews and consultations will be helpful if they result in 'refinement' of practice and procedure. There is a need to make regulations understandable so employers, individuals and even the courts clearly comprehend their application. Reform should aim to increase protection to employees and members of the public from preventable injury. However, the mere overhaul, and over-simplification of legislation and risk assessments, relaxation of reporting duties, and the removal of some regulations may lead to regression in progress made in the last century in respect of safety.