Application of the Health and Safety Regulations 1992 and 1998

Wright v Romford Blinds & Shutters Ltd, QBD: 22 May 2003

The facts of this case provide the opportunity to marvel at the scope of the Health and Safety Regulations introduced in their original form in 1992.

The claimant fell off the roof of a Ford Transit van.

He was in the process of loading bundles of shuttering onto a roof rack which was in the form of a wooden platform.

The shuttering was awkward and almost 20 feet in length.

In finding for the claimant, the judge considered the application of the Manual Handling Operations Regulations 1992, the Provision and Use of Work Equipment Regulations 1998 and the Work Place (Health, Safety & Welfare) Regulations 1992.

In looking at the Manual Handling Operations Regulations 1992, the judge used the guidance of Lord Justice Robert Walker in Swain v Denso Marston Ltd [2000] ICR 1079, looking firstly at whether it was reasonably practicable to avoid the need for the claimant to undertake any manual handling of the shuttering.

He decided it wasn't and only then does one look to the risk assessment.

In this case, the defendant's evidence was that the weight of the shutters could be lifted and transported by one individual and that any risk assessment was done on the job by the people doing the job.

Although the Court of Appeal has at times been rather lax in relation to enforcing the responsibility on employers to risk assess, the judge was clear that the defendants failed properly to carry out an adequate risk assessment of this particular task and, if they had done so, there are at least three steps that could have been taken to avoid the claimant being put at risk of injury: namely, loading the van from the floor, supplying a different type of vehicle, or providing guard rails to the roof rack.

The defendants made the surprising observation that working on the platform was no different from working on a pavement.

This approach does, of course, fly in the face of a number of regulations that refer to the need to avoid exposing employees to the risk of a fall from height.

The court then considered whether the roof was a 'work place' within the definition of regulation 13 of the Work Place (Health, Safety & Welfare) Regulations 1992.

As the vehicle was stationary and inside the defendant's compound at the time of the accident, it was held that it was.

In the circumstances, the defendant was obliged under the regulation to, as far as is reasonably practicable, take steps to prevent 'any person falling a distance likely to cause personal injury....'.

Finally, the court considered whether the van was 'work equipment' within regulation 4 of the Provision and Use of Work Equipment Regulations 1998.

The judge found that, as the defendant expected the claimant to use the roof rack as a work place during the loading operation, it could not argue that the roof rack was suitable for its purpose of transporting bundles of shuttering alone, as it had more than one purpose.

There was a breach of regulation 4(1) as the platform, having no guard rails, was not constructed to be suitable for the purposes of the claimant working on it.

The judgment proves that the Health and Safety Regulations provide a plethora of duties and obligations on employers to maintain the safety of the work place for their employees.

Too often, the regulations are not considered with proper care and attention and what, on the face of it, is a relatively simple accident can give rise to multiple opportunities for a claimant to use a combination of a number of the regulations to support his case.

From the defendant's perspective, the need to risk-assess so eruditely drawn by Lord Justice Clarke in Griffiths v Vauxhall Motors Ltd [2003] Gazette, 9 May, 32, must be observed if they are to avoid injuring their employees and opening their insurers to the financial responsibility of a damages payment.

Vicarious liability - aggressive bouncers

Mattis v Pollock, CA (Lords Justice Judge, Dyson, Mr Justice Pumfrey): 1 July 2003

Mr Mattis was stabbed in the back by a bouncer employed by the defendant and, as a result, was left a paraplegic.

The nightclub bouncer had been involved in an earlier altercation at the defendant's nightclub in which the appellant had a minor involvement.

At the close of the evening, the bouncer left the club followed by some of those involved in the earlier event, but not Mr Mattis.

The bouncer managed to lose his pursuers, went home, grabbed a knife, and returned whereupon he met up with Mr Mattis who, in the interim, had caught up with his friends.

The friends ran away leaving Mr Mattis to defend himself unsuccessfully and he was stabbed.

At first instance, Judge Seymour found that the initial incident ended with the bouncer leaving the nightclub in the early hours of the morning.

In overturning this decision the judges, with Lord Justice Judge giving the only judgment, carefully considered the House of Lords guidance in the cases of Lister v Hesley Hall Ltd [2001] IRLR 472, and Dubai Aluminium Company Ltd v Salaam and Others [2002] UK HL 48.

Particular attention was paid to the view of Lord Millet in Dubai that it is important to concentrate attention 'on the closeness of the connection between the act of the employee and the duties he is engaged to perform broadly defined'.

In Mattis, the Court of Appeal found that the stabbing was the 'unfortunate and virtual culmination' of the incident which had started in the club some hours earlier.

As Lord Nicholls stated in Lister in summarising the approach of the courts to vicarious liability, 'essentially, the court makes an evaluative judgment in each case, having regard to all the circumstances...'.

In the instant case, it was stressed that if the job requires an employee to use violence, then an act of violence will more likely be found to be linked to the employment.

It is evident from the decisions in Lister and Dubai Aluminium, and from the instant case, that it is becoming increasingly difficult to find an example of an employer avoiding responsibility for the actions of an employee.

Lord Clyde in Lister suggested a possibility that assaults resulting from 'passion and resentment' or 'personal spite' may fall outside vicarious liability but it was put no stronger than that.

By Simon Allen, Russell, Jones & Walker, Sheffield