Management regulations and civil liability

Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 Si 2003 No.

2457

The management regulations, introduced in 1992 and amended in 1999, have been further amended to incorporate liability in civil proceedings if someone suffers injury resulting from breach of the regulations.

This is a very important step.

The management regulations have, at their centrepiece, regulation 3, which imposes on the employer the obligation to risk-assess the risk to health and safety to all of his employees.

Unfortunately, the failure to impose civil liability sends a message of indifference to risk assessment, which, sadly, has been encouraged to a degree by Court of Appeal judgments.

In 1974 the Health & Safety at Work Act also failed for the same reason.

Injured workers hoped that the Act would assist in their battle for compensation as well as preventing further similar accidents.

By not imposing civil liability and because the Health and Safety Executive was too busy to pursue prosecutions for the less serious injuries it was perceived that the Act had little strength.

The management regulations were tarnished with the same problems.

The Framework Directive resulted in the 'Six Pack' regulations introduced into the UK in 1992.

Article 2(b) stated that 'the employer shall evaluate the risks to health and safety (that cannot be avoided)'.

As ever, we then look to the courts to see how the regulations are enforced.

In Hawkes v London Borough of Southwark (20 February 1998 CA, unreported) Lord Justice Staughton said the need for an employer to carry out a risk assessment was 'merely an exhortation' though 'no doubt a very wise precaution'.

Lady Justice Hale in Koonjul v Thames Link Health Services [2000] PIQT 124 stated that a risk assessment is 'not an ending in itself, merely a structured way for analysing and pointing the way to practical solutions'.

A more forceful view is taken by the Court of Appeal in Swain v Denso Marston Limited (12 April 2000, CA, unreported) when Lord Justice Robert Walker dismissed the defendant's argument that reasonable practicability applied to the need to undertake a risk assessment.

He said that it was mandatory.

This judgment tends to stand separate from a number of other cases, particularly in relation to manual handling.

The courts have avoided criticising for failure to risk assess by stating that 'an element of realism' must be applied and asking: would the risk assessment have made any difference in any event?

I have to say that the Court of Appeal has largely failed in its obligation to ensure that a risk assessment does take place.

Lord Justice Clark in Griffiths v Vauxhall Motors Limited (see [2003] Gazette, 9 May, 32; House of Lords judgment unreported) summed up the approach that should be adopted when he stated: 'The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether a particular operation gives rise to a risk to safety and, if so, what is the extent of that risk which, of course, includes the extent of any risk of injury, and what can and should be done to minimise or eradicate the risk'.

That is precisely the point.

If one doesn't carry out a risk assessment one cannot be clear that one has identified all the risks of injury and seen whether steps can be taken to avoid them.

The perspective needs to be changed from the risk assessment being viewed as a burden to an everyday part of working life, such as switching on the lights in a factory in the morning.

Nervous shock and employees

Salter v UB Frozen & Chilled Foods Limited; Outer House, Court of Session - 25 July 2003

This Scottish case, which is likely to be influential in England and Wales, considered the position of an employee suffering from nervous shock as a result of injury to one of his colleagues.

The claimant was a fork lift operator.

The method of working at the defendant's factory was to lift stocktakers in a cage mounted on the forks of the fork lift truck so they could work on the rows of pallets.

At the highest level the stocktakers had to duck to avoid contact with the roof beams.

On the occasion of the accident the fork lift truck suddenly shuddered and one of the stocktaker's orange helmets fell to the ground.

The claimant reversed his fork lift and lowered the cage.

As he did so, he saw blood dripping onto the factory floor from the cage and when it came down to his level he could see blood coming from the ears, nose and mouth of one of the stocktakers who was fatally injured.

The claimant blamed himself for the accident.

He subsequently drank heavily and his marriage came under stress.

He had a nervous breakdown and attempted suicide.

A claim for damages was made against the employers who had settled the claim by the deceased's widow.

The court considered in depth the House of Lords judgments in Alcock [1992] 1 AC 310 and Frost [1992] 2 AC 455.

Ultimately, the judge found that the claimant was an active participant and was a 'primary victim', thereby avoiding the control tests applicable to secondary victims.

Is the decision correct? Unfortunately, the judge relied on the excellent analytical judgment of Lord Goff in Frost but he was a dissenter in that case.

He also relies upon the view of the Lord Principal Hope in the Scottish case of Robertson v Forth Road Bridge Joint Board (unreported), which was a case heard before Frost and which, one suspects, following Frost would fail.

The difficulty arises because the House of Lords in Frost in constructing their barricade to block the claims of the employee police officers failed to address the judgment in Dooley v Cammell Laird & Co Limited (1951) Lloyds reports 271 where the claimant, too, considered that he was the involuntary cause of injury to colleagues when the sling of the crane that he was operating broke dropping a load into the hold of a ship where his colleagues worked.

The Dooley case does not fit with the judgments of Lords Hoffman and Steyn.

They classed employees as secondary victims unless they could show that there was a foreseeable risk of physical injury or perceived risk of such.

Lord Hoffman specifically identified that the law of tort does not create a special benefit to employees, citing the example of economic loss.

Therefore, we are left to guess at how the Dooley case is excepted from the policy outlined by their Lordships.

Is it because the claimant, through the fault of the employer, believes he is the cause of the potential harm to others? Must there be a statutory breach by the employer as there was in Dooley and Salter?

By failing to address this gap in their rationale for defeating the employee claims in Frost the House of Lords has left open an area of the law in relation to nervous shock claims which needs to be filled.

For the time being, on the basis that the Dooley case was not questioned by the Law Lords in Frost, the Salter decision must be correct.

It is my view that the judgment is wrong.

Mr Salter should not have recovered monies because his claim was not put forward on the basis of foreseeable risk of physical injury.

By Simon Allen, Russell Jones & Walker, Sheffield