The opportunity for a claimant injured at work to rely on a statutory breach was reduced on 1 October by the Enterprise and Regulatory Reform Act (ERRA) 2013. The change is not retrospective. Notably, strict liability previously present in regulations such as regulation 5 of the Provision and Use of Work Equipment Regulations (PUWER) 1998 will be removed.
Additionally, those regulations which, despite its absence in the framework directive and the daughter directives which flowed therefrom, incorporate a defence of ‘reasonable practicability’ will now require the claimant to prove the failure to take the practicable steps on the part of the employer, whereas previously the burden rested firmly with the employer.
Positively, one hopes that the judiciary will continue to consider the evidential weight of past cases arising from the regulations when assessing the common law standard of care. However, it is envisaged that a finding of contributory negligence will become more common, as the previous emphasis on a primary, and at times overwhelming, fault on the part of the employer created by a statutory breach will no longer survive.
The contrast between life before and after 1 October was recently exemplified in Kennedy v Chivas Brothers Ltd  CSIH 57.
The claimant was a line operator in a bottling plant. Part of her duties involved pushing a trolley – a cage mounted on four small wheels, two of which rotate and swivel, on to which was loaded about 380kg – along a passageway into which machinery protruded. On the occasion of her accident, the wheels stuck, and in an effort to move the trolley through the limited space created by protruding machinery, the claimant took to pulling the trolley. As she did so, her hand, which was holding on to the side of the trolley, came into contact with one of the machines, causing her injury.
The defendants pointed out that the trolley was of an ‘industry standard’. Post-accident, no defects were found, and no prior complaint had been made either by the claimant or her colleagues. A general risk assessment of all manual handling activities had been carried out, but not a specific one for the task performed by the claimant on that day.
The judge at first instance found that the task was ‘simple’, and did not involve a real and foreseeable risk of injury. It was not reasonably practicable to deliver the goods on the trolley to the top of the bottling line other than by way of the trolleys, and the installation of an automated system would require substantial structural alteration. The claim failed.
On appeal the claimant was successful on the basis of regulation 4 of PUWER 1998, and regulation 4 of the Manual Handling Operations Regulations (MHOR) 1992. Regulation 4 of PUWER states that ‘every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided’. It was established that the trolley was ‘work equipment’.
The fact that the trolley was of industry standard was not conclusive. The appeal court held that the equipment must be suitable for the particular task for which it is used. ‘Suitability’ is defined by reference to the test of reasonable foreseeability, but in statute the test is different to the common law, for the defendant will not escape responsibility unless he can show the circumstances of the accident were ‘unforeseeable’ or ‘exceptional’. The facts upon which the court relied in finding for the claimant were:
- The trolley was heavily loaded.
- The claimant was asked to move it along a passageway between two rows of machinery.
- Her height was 5ft 3in and she would have had difficulty in seeing over the top of a fully laden trolley.
- Machinery and waste bins protruded into the passageway ‘to a significant degree’.
- It was necessary to change the direction of the trolley on at least two occasions within a relatively cramped space.
- The difficulty of manoeuvring the trolley was ‘clear and obvious’.
As such, the trolleys were not ‘so constructed… as to be suitable for the purpose’ of moving a full load of boxes within the factory. It was reasonably foreseeable that an accident of the type suffered by the claimant might occur, as she was trying to negotiate a fully laden trolley through the gap in question, with wheels that had the potential to stick and require realignment.
The judge at first instance relied to too great a degree on the general suitability of the trolleys for a range of tasks, rather than the specific task in this instance. Pushing a trolley may be ‘simple’, but on the occasion of the accident obstructions had to be negotiated, the trolley was loaded to a height that affected the operator’s visibility, and the wheels have a tendency to stick thereby creating an obvious hazard.
In relation to the MHOR, the defendants raised the issue of reasonable practicability. Unfortunately for them they did not plead this defence. The court held that as such they failed to adopt the sequential approach to the assessment of the risk from a manual handling activity of, first of all avoiding the need for employers to undertake a manual handling task, but, if this is not possible then a risk assessment is to be completed, and then steps have to be identified to reduce the risk.
The court emphasised that the burden of establishing that a step is not a reasonably practical one rests on the employer, for it is settled law that it is not the employee’s task to design the system of work.
On appeal there was no finding of contributory fault on the part of the claimant, for ‘momentary acts of inattention are to be expected, especially when employees are under pressure or performing repetitive tasks. For that reason, a finding of contributory negligence should only be made in a clear case. Generally speaking this will be one where the employee has made a conscious decision to embark upon a risky course of action’.
Quite properly, the court held that the claimant was confronted with a problem which she tried to resolve. There were no handles on the trolley, therefore she was obliged to hold it in the manner in which she did, with her hands exposed.
The decision underlines the importance of the application of the Health and Safety Regulations enacted in 1992, and their subsequent amendments. Statute trumps common law in relation to reasonable foreseeability, and also provides employees with additional protection in relation to allegations of contributory fault. This case was another example of an employee being presented with an unsafe situation as a result of the failings of the employer in not properly assessing the risks at work, and suffering injury through her attempt to resolve the problem the employers had created.
Some writers romanticise the return to reliance on the common law as an opportunity to reacquaint ourselves with Swanwick J’s ‘reasonable and prudent employer’ test for foreseeability, set out in Stokes v Guest  1 WLR 1776. This is not, however, a time for romantics. In a climate of workplace recession, and with a civil costs regime which can make a case too costly to run, the need for the clarity provided by statute is overwhelming.
The common expectation is that safety standards will fall as a result of the ERRA.
However, if one puts the changes into a commercial context, an employer who abandons the current principles of health and safety, starting with a suitable risk assessment, in the belief that he can return to a world of cloth caps and hellish work places, will soon receive a slap in the face from his insurers as they start to make payments of damages arising from such a lax approach. Alas, of course, this will not provide any comfort to those employees injured as a result.
The period of statutory protection provided to UK workers that began with the health and safety regulations in 1992, and ended with the ERRA, may in time be perceived to be akin to Nabokov’s brief crack of light between two eternities of darkness. The year ahead will doubtless provide the evidence of the extent to which the judiciary is willing to permit the UK to fall behind other European countries in the health and safety league table.
Simon Allen, Slater & Gordon