THE DUTY TO RISK ASSESS AND COMMON LAW DUTY AFTER 1st OCTOBER 2013

The previous post looked at the residual importance of the Regulations made under the Health and Safety Act 1974 now that civil liability for breach of those Regulations has been abolished. One central duty imposed by the Regulations is the duty to risk assess. This post:

1. Looks at the nature of the duty to risk assess.

2. Looks at how that duty has been construed by the courts.

3. Looks at how that duty was construed by the courts prior to the failure to risk assess giving rise to civil liability.

4. Looks at specific areas and types of accident where the risk assessment is

particularly relevant.

The central point that is being made is that the duty to risk assess remains a statutory duty. However it is now central to the common law duty of care owed by employer to employee.

IF YOU WANT A QUICK READ

This is an unashamedly detailed examination of the case law on the subject. If you are short of time there is a summary at the end of the post.

THE REGULATIONS

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Risk assessment
3.—(1) Every employer shall make a suitable and sufficient assessment of—

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.

(2) Every self-employed person shall make a suitable and sufficient assessment of—

(a) the risks to his own health and safety to which he is exposed whilst he is at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.

(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it if—

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

(4) An employer shall not employ a young person unless he has, in relation to risks to the health and safety of young persons, made or reviewed an assessment in accordance with paragraphs (1) and (5).

(5) In making or reviewing the assessment, an employer who employs or is to employ a young person shall take particular account of—

(a) the inexperience, lack of awareness of risks and immaturity of young persons;

(b) the fitting-out and layout of the workplace and the workstation;

(c) the nature, degree and duration of exposure to physical, biological and chemical agents;

(d) the form, range, and use of work equipment and the way in which it is handled;

(e) the organisation of processes and activities;

(f) the extent of the health and safety training provided or to be provided to young persons; and

(g) risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC(1) on the protection of young people at work.

(6) Where the employer employs five or more employees, he shall record—

(a) the significant findings of the assessment; and

(b) any group of his employees identified by it as being especially at risk.

Initially the duty to risk assess did not give rise to civil liability. However this was later amended to impose civil liability between employer and employee. As a result of the Enterprise and Regulatory Reform Act 2013 (http://www.legislation.gov.uk/ukpga/2013/24/contents/enacted ) a breach no longer gives rise to an action for breach of statutory duty.

THE LEADING CASES

Allison v London Underground Ltd [2008] EWCA Civ 71 http://www.bailii.org/ew/cases/EWCA/Civ/2008/71.html

The Claimant suffered from tenosynovitis as a result of prolonged use of a traction brake controller whilst working as a tube driver. A modification had been made to the controller without the use of expert advice. The claimant failed at first instance. The claimant appealed, one of the issues on appeal was the adequacy of the risk assessments carried out by the Defendant.

“Lady Justice Smith:

21 The judge then turned to consider the risk assessment which the employer had carried out in March 2000. As I have said, he did not make any finding as to whether the risk assessment had been sufficient and suitable so as to comply with Regulation 3 of the 1999 Regulations. He observed that it had identified the need for training and refresher training in the operation of the TBC. He continued, towards the end of paragraph 70:

“The point it seems to me is that training was given on the use of the handle. It was given to the claimant and it was given to her by others — how to adjust the seat so that the armrest was in the right place and so that the bending of the wrist would be avoided. In short, it seems to me that the risk assessment did identify the measures to be taken, namely initial and refresher training, but that simply leads on to the question which has arisen in this case and which I have attempted to answer: was the training adequate within the meaning of Regulation 9 of the other Regulations?”

22 I confess that I have not found this passage entirely easy to follow. It seems to me that the judge was saying that it was not necessary to decide on the sufficiency and suitability of the risk assessment because, if training was given in accordance with the results of the risk assessment, the sufficiency of the risk assessment equated to the adequacy of the training. That question he had already decided. Maybe that was intended to be a holding that the risk assessment was sufficient and suitable. However, the judge had not applied his mind directly to the issue of whether or not the risk assessment was ‘sufficient and suitable’; in particular he had not dealt with Miss Newbery’s submission that the employer should have sought expert advice about the risks related to the use of the handle with the chamfered end, either at the design stage or in March 2000, when the formal risk assessment was carried out, presumably in response to the 1999 Regulations.

57 How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.

58 Judge Cowell recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been ‘adequate in all the circumstances’ he did not need to decide whether the risk assessment had been ‘sufficient and suitable’. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury.

59 In the present case the judge failed to decide whether the risk assessment had been sufficient and suitable. It appeared to me that the right approach for this court to take, in deciding whether the appellant’s training had been adequate for health and safety purposes, was to examine whether the respondent’s risk assessment had been sufficient and suitable. That, as it seemed to me, would provide the answer. In post hearing submissions, Mr Purchas argued that this would not be right as the judge’s failure to decide on the sufficiency and suitability of the risk assessment had not been a ground of appeal. The appeal was limited to the correctness of his decision under Regulation 9 . I can see the force of that objection. However, it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the respondent’s risk assessment. I just think that the most logical way to approach the question is through a consideration of the suitability and sufficiency of the risk assessment. Having said that, I will respect Mr Purchas’s objection and will approach the question of what the employer ought to have known about the risks direct from the evidence before the judge.

62 Ought the employer to have sought the advice of an ergonomist in respect of the risk of the TBC handle with the chamfered end? It seems to me that the proper assessment of the risks of developing a static strain upper limb disorder from the prolonged use of a TBC are likely to be beyond the capability of anyone other than an ergonomist. I note that Article 5a of the Work Equipment Directive requires that ergonomic principles should be taken into account when providing work equipment. If when providing equipment, why not when deciding upon the need for training? This respondent was aware of the risks of strain injury arising from the prolonged use of TBCs, as the documents show. In my view, the respondent must have been aware of the risk of strain injury from the use of the TBC and should have taken advice about it from a professional, namely an ergonomist.

Threlfall –v- Hull City Council [2010] EWCA Civ 1147.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3042.html

The claimant was injured by a sharp object whilst working for the Defendant. Thicker gloves could have prevented the injury. The claim failed at first instance and before the High Court Judge. The appeal to the Court of Appeal succeeded in full. One of the grounds of appeal was that a risk assessment would have disclosed that the gloves were inadequate.

Mrs. Justice Smith.

22. Mr Rowley’s second submission was that the judge’s second reason was unsustainable. The judge relied on the fact that the risk assessment had not shown that cut-resistant gloves were required. Indeed it had not but Mr Rowley pointed out that that conclusion was to ignore the inadequacy of the risk assessment actually carried out. That risk assessment had dealt only with the general risks of garden clearance. It did not attempt to assess the risks of laceration; nor did it consider what type of gloves should be provided. Mr Brown did not demur from these submissions.

23. I would accept that the risk assessment which the Council (now the respondent) carried out was manifestly defective when compared with the requirements of regulation 6. Regulation 6 requires an employer to give specific consideration of the risks against which it was intended to provide a form of protective equipment. This risk assessment should have specifically dealt with the risk of laceration and the type of protective gloves required in the light of that risk. It was not open to the judge to base his conclusion on the result of so inadequate a risk assessment.

24. Although the judge expressly based his reasoning on the risk assessment, he did also consider the suitability of the gloves provided. Had he considered the question of suitability in accordance with the law and had he been entitled to reach the conclusion that the gloves were suitable, I would not interfere with his decision just because his expressed reasons on other issues were open to criticism.

25. The judge’s approach to suitability was to say that, for equipment to be suitable, it must at least be appropriate for the risk and, as far as practicable, effective to prevent or adequately control the risk. That was a paraphrase of regulation 4(2) and (3). He then held that, in this case, the employer had been entitled to conclude that the standard gloves, alongside the other equipment and training provided, were appropriate and effective. In the absence of some reason to anticipate a heightened risk at the site in question (which there was not) and any past history of problems, he considered that equipment that is appropriate and adequately effective must be suitable.

35. For the last 20 years or so, it has been generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with his operations so that he can take suitable precautions to avoid injury to his employees. In many circumstances, a statutory duty to conduct such a risk assessment has been imposed. Such a requirement (whether statutory or not) has to a large extent taken the place of the old common law requirement that an employer had to consider (and take action against) those risks which could be reasonably foreseen. The modern requirement is that he should take positive thought for the risks arising from his operations. Such an assessment is, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics [2005] PIQR 975, ‘logically anterior’ to the taking of safety precautions. I said something similar, in rather less elegant language, in paragraph 58 of Allison v London Underground Ltd [2008] ICR 719.

36. In the present case, the employer carried out a general assessment of the risks arising for its street scene workers. That assessment failed to recognise that there was a risk that employees might suffer a laceration of the hand as the result of contact with some sharp object which might well be hidden from view and therefore not avoidable by the taking of ordinary care. If that general risk assessment had been properly carried out, the employer would have recognised that specific risk as it did for the purpose of these proceedings. It would also have recognised the need to consider the suitability of the protective gloves it provided for these men. Regulation 4(3) and regulation 6 would have been there to guide it.

37. However, I entirely accept that it would have been quite possible for the judge to hold that that, notwithstanding the failure to carry out an adequate risk assessment, the employer was not in breach of regulation 4(1) and was not liable for the injury. If the employer had provided suitable gloves, the lack of a risk assessment would have been irrelevant.

38. In the present case, I start from the accepted positions that the appellant was exposed to a risk of laceration which could not be adequately controlled by other means and that the respondent was under a duty to provide suitable protective equipment, in the form of gloves.

41. It seems to me that effectiveness is at the heart of suitability. Logically, in my view, the first question under suitability should be: “Does this proposed item of protective equipment prevent or adequately control the identified risk of injury?” Only when that question has been answered in the affirmative is there any need to consider whether the provision of the equipment is appropriate or ergonomically acceptable and compatible with the workplace and so on as required by the other sub-paragraphs of regulation 4(3). If that question cannot be answered affirmatively, the equipment is unsuitable no matter how ‘appropriate’ it might be.

42. The concept of preventing a risk is easy to understand. The precaution stops the injury from happening at all. Controlling a risk is a less certain concept. A risk can be controlled either by reducing the likelihood of an adverse event happening or by reducing the harmful effect of the adverse event when it happens. The provision of protective equipment cannot affect the frequency with which an adverse incident occurs. It seems to me therefore that, in the context of providing protective equipment, the legislature must have intended the second meaning to apply in sub-paragraph (d). The objective of effectiveness must be to ensure that, when an adverse event occurs, the protective equipment either prevents any injury at all or so protects the worker that he does not suffer significant injury. Thus, I would equate ‘adequate control of risk’ with the prevention of significant injury.

43. In the present case, where the risk of laceration from hidden sharp hazards is acknowledged, the first question to be asked is: “Were these standard issue gloves effective to prevent or adequately control the risk?” Mr Rowley submitted that they were not; the claimant had suffered a significant injury. However, that is to rely on hindsight and suitability must be considered without that benefit. Mr Brown submitted that the gloves were effective adequately to control the risk. However, his difficulty was that the judge did not apply his mind to this specific question. In his paragraph 25, he elided the issues of suitability and concluded that the employer had been entitled to conclude that the standard gloves were appropriate and effective. He did not ask himself whether, objectively considered, these gloves were effective to prevent or adequately control the risk. Instead, as Mr Rowley submitted, he applied the common law test of whether the employer’s actions had been reasonable in the circumstances.

44. I would accept the general thrust of Mr Rowley’s submission. The first task of the judge in a case such as this will often be to decide whether regulation 4 applies at all. That was not in issue here. It did apply because it was accepted that there was a risk of injury which could not be adequately controlled by other means. I would say only that, 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.

Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ 66.
http://www.bailii.org/ew/cases/EWHC/QB/2010/46.html

The claimant was injured in a “health and fun day” at the RAF base where he was stationed. There was a team relay race and had to retrieve objects from a cylindrical pool about 18 inches in depth. The claimant entered the pool head first and struck his head on the base of the pool breaking his neck. He failed at first instance but succeeded in the Court of Appeal.

Lady Justice Smith:

16 It followed that, in the judge’s view, both defendants were in breach of their duty to the claimant. However, at paragraph 39, the judge said:

“My findings as to the risk assessments prepared for and on behalf of the first and second defendants do not mean that Mr Uren succeeds on the issue of liability. The question for decision is not whether adequate risk assessments had been undertaken, but whether the defendants took reasonable measures to ensure that the game was safe.”

Risk assessment- issues in the appeal

38 I begin by considering the suggestion that the judge erred in not following through from his findings that both respondents’ risk assessments were inadequate. I confess that when I read paragraph 39 of the judgment, quoted at paragraph 16 above, I was surprised that the consequences of the failure to carry out a suitable and sufficient risk assessment were dealt with so briefly.

39 It is obvious that the failure to carry out a proper risk assessment can never be the direct cause of an injury. There will, however, be some cases in which it can be shown that, on the facts, the failure to carry out a proper risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. A decision of that kind will necessitate hypothetical consideration of what would have happened if there had been a proper assessment.

40 The evidence which the appellant wished to rely on to prove their point on this issue was that of Mr Berry, CL’s General Manager. His evidence was that, although it did not form part of his written risk assessment, he had in fact prohibited head-first entry when giving oral instructions. From that, said the appellant, it should be inferred that, if he had carried out a proper assessment, that is what he would have put down and that is what would have been required. If Mr Berry had been a witness of integrity, that would have been a powerful point to make. But the judge rejected Mr Berry’s evidence as to the instructions he gave because no one who heard them agreed that that prohibition had been imposed. Moreover, the photograph showed a competitor going in head-first while Mr Berry was watching him. If the judge had found that Mr Berry was honestly mistaken in thinking he had given such an instruction and had meant to do so, then the judge may, I think, have had to draw the inference that a proper risk assessment would have led to the banning of head-first entries. But Mr Berry’s evidence was rejected as deliberately self-serving. He was either trying to avoid personal criticism or seeking to help CL avoid liability or possibly both. In any event, his evidence was to be distrusted and it was entirely reasonable for the judge to refuse to draw an inference that, if he had conducted a proper risk assessment, Mr Berry would have banned head-first entries.

41 It is perhaps unfortunate that the judge did not deal expressly with this point, although in the event the omission cannot have any effect on the outcome of this appeal. I say that it would have been better if he had dealt with it because there was some evidence potentially relevant to the issue. Also, I would not wish judges to have the idea that risk assessments are unimportant and can never affect the outcome of a claim. I would not wish them to think that all that matters is an objective assessment of safety by the court. Sometimes the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside.

42 In any event, risk assessments are an important feature of the health and safety landscape. At their best, 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. It must, however, be admitted that they are not a panacea. There was, during this case, some discussion about the difficulty of conducting an effective risk assessment in connection with some kinds of activity. For example, as Professor Ball pointed out, there were in this game so many potential variables, depending on the decisions of individual participants, that it would be virtually impossible to give separate consideration to every possibly variable of what might be attempted. His recommendation was that risk assessors should ‘keep it simple’. I see the force of that point. It seems to me that formal risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way. They may well be a less effective tool where a lot of variables may come into play.

43 Professor Ball also drew attention to what I think he regarded as a degree of artificiality in the approved methodology of risk assessment. The approved method falls into two parts. First, it requires the assessment of the likelihood of the eventuation of a risk. A number of points is assigned to each degree of likelihood. In one of the assessment templates considered in the present case, the points ranged from 1 to 4: 4 points for a risk that is very likely, 3 for likely, 2 for possible but unlikely and 1 for very unlikely. Then the severity of the resultant injury is assessed: 4 points are given to a very serious injury, 3 for less serious, 2 for moderate and 1 for trivial injury. Finally, the overall risk assessment is made by multiplying the two numbers together. Someone has decided in advance what overall number is acceptable and what the threshold is for requiring further controls or precautions to be applied. A second template was also considered in the evidence in this case; this used a wider range of numbers and was therefore potentially a little more sensitive but the essence of the operation was exactly the same.

44 I am reluctant to criticise this methodology; it is advanced by reputable bodies and no doubt they have been anxious to give guidance which can be applied by a wide range of people to a wide range of circumstances. I say only that I can understand Professor Ball’s reservations about it. It is rather a blunt instrument. For one thing it is heavily dependent on personal impression. Second, it seems to me to encourage a mechanistic or ‘tick-box’ approach, rather than a thoughtful appraisal of risk. Third, the setting of a fixed threshold for acceptability may fail to draw appropriate attention to a ‘very unlikely’ risk of catastrophic injury.

45 I would like to think that the careful use of such a template will produce a sensible result. However, I do see a danger that, by carrying out the template exercise, an employer or other responsible person may lose sight of the real objective of identifying dangers which should be avoided. I would not like it to be thought that the performance of such an exercise with a reasonable degree of competence and compliance with its results will necessarily provide a complete answer to liability. It seems to me that the use of a template can never fully replace the reasoning processes of an intelligent and well-informed mind. I hope that is not too much to hope for.

53 However, it seems clear that those statistics could not be used to help in the assessment of the risks arising in a particular game. First, the number of spinal injuries in the UK each year from all causes does not help to assess the danger of this game. Nor is the number of spinal injuries related to sports activities as a whole. The only figure given which is of any relevance to that issue is that 3.5% of spinal injuries are caused by “diving”. Taking 800 to 1000 as the annual figure for all causes, that would be 28 to 35 diving injuries per year. But having noted that potentially useful statistic, the judge goes back to the figures which give the risk faced by the whole of the UK population of spinal injuries from all causes, namely one in 60,000. It is self-evident that that is a fairly modest risk compared with the risk of death by injury at one in 4000.

54 This reference to comparative risks suggests that what the judge might have had in mind is that we all willingly accept some risks of serious injury every day when we travel by car and those of us who are a little more adventurous willingly take similar or possibly rather greater risks for the pleasure of taking part in outdoor activities. If the judge was only making comparisons between the general dangerousness of road travel, swimming, diving, rock climbing and canoeing, that is unexceptionable. If he was using the figures to support his view that the risk from this game is very small, then he is open to criticism. The final words of paragraph 51 could be regarded as some indication that he recognised that the figures are not useful for an assessment of the safety of the game. However, the opening words of paragraph 49 quite strongly suggest that he was relying on them as contributing to his conclusion that the risk from this game was very small.

62 I have a further concern about the judge’s holding that the risk of serious injury was very small. As noted, the judge accepted that SAC Plant who was watching the game immediately thought that the head-first entries which he observed were dangerous and would lead to an accident. The judge said that he thought that what spectators thought of the risks of the game was of very little relevance. I am afraid that I do not agree with him on that. This was a game which no one had seen played in this way before. There was no evidence that anyone from CL had seen it played in this way, permitting head- first entry. No one from the RAF had seen it played until the day of this accident. None of the experts ever saw it being played; they all had to envisage it. It seems to me that the impressions of those who actually saw it that day were potentially important.

70 The MoD cannot and does not suggest that it had no duty to carry out a sufficient and suitable risk assessment. It plainly did. It was subject to a statutory duty under regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 to carry out a suitable and sufficient risk assessment of its activities. The existence of this duty was acknowledged in two ‘in- house’ booklets which were before the court in which its importance was stressed and guidance was given to commanding officers as to how it should be complied with.

71 It is trite law that the common law duty of an employer to an employee cannot be delegated: see Wilson’s and Clyde Coal Co v English [1959] A.C. 604 . It seems to me that the duty to undertake a risk assessment is so closely related to the common law duties of the employer that it would be remarkable if the duty to undertake a risk assessment were delegable and yet the general responsibility for safety were not. In my view, the judge was clearly right to hold that the risk assessment duty is non-delegable.

72 I do accept that what amounts to ‘a suitable and sufficient’ risk assessment may well vary according to circumstances. For example I can see that if an employer uses a contractor for some activity and satisfies himself that the contractor has carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer is suitable and sufficient even though it is not as detailed as would be otherwise required. That would be a question of fact in each individual case and it is impossible to generalise as to the standard of risk assessment which will be required of an employer. Here, on the facts, it is clear that CL did not carry out a suitable or sufficient risk assessment and it could not sensibly be argued that the MoD could properly rely on it. The two defendants did not even confer about risk assessments.

EARLIER CASES PRIOR TO BREACH OF DUTY GIVING RISE TO LIABILITY

Griffiths v Vauxhall Motors Ltd
http://www.bailii.org/ew/cases/EWCA/Civ/2003/412.html

This is important because it was a decision made before the failure to risk assess gave rise to civil liability.

The Claimant was injured when a “gun” he was using to put bolts into cars “kicked back”.

LORD JUSTICE CLARKE:

22. Having regard to regulation 15 [of PUWER which imposes a duty to train http://www.legislation.gov.uk/uksi/1998/2306/contents/made ] it is common ground that the relevance of regulation 3 is that it helps to identify the standard of care to be expected of a reasonable employer. It is however conceded, to my mind correctly, that the Recorder was right to hold that the appellant should have carried out a risk assessment well before the accident, especially having regard to the previous experience of kickbacks. The real issue before the Recorder, and indeed on this appeal under this head, is whether the failure to carry out a risk assessment was causative of the accident to the respondent.

35. Before considering that submission, I should first set out the basis upon which the Recorder reached his conclusions. They can I think be summarised in this way:

(1) There were unexpected kickbacks before the accident. As the Recorder himself put it, he could not begin to know what the causes were. The causes were a mystery which he could not solve. The Recorder said in paragraph 34, “As I say, it may be caused by misalignment; it may be caused by operator error.”
(2) The equipment in normal operation, without any fault in it, was prone to unexpected adverse torque reaction and the operator who is holding the equipment, as the Recorder put it in paragraph 35, “if he is not holding it firmly, is thereby exposed to the risk of injury.”
(3) In these circumstances, the failure to carry out a risk assessment did render the respondent and other operators liable to the risk of injury. The Recorder said this at the end of paragraph 36: “If there had been a risk assessment and that had been communicated through the proper channels of communication to the operators, then albeit it might be as simple as Mr Alldis says, you must hang on tightly to this tool at all times, that, I think, would have enabled the operator, in this case Mr Griffiths, to avoid the accident.”
36. It seems to me that what the Recorder was in effect saying was that if there had been a risk assessment it would have been plain to the appellant that clear instructions should be given to its employees, that it would in fact have given such instructions, and that it is more probable than not that the respondent would have obeyed such instructions and that the accident would not have occurred.

37. Mr Alldis submits that the Recorder was wrong so to hold. He makes these submissions. The respondent knew that the gun was inclined to kickback unexpectedly and that he must, as he put it in evidence, grab hold of it firmly. In these circumstances, there is no reason to think that anything said to the respondents by way of training, or instruction, or reminder would have made any difference to what happened on the day of the accident. Mr Alldis also submits that the respondent is here complaining of insufficient training and instruction, which were allegations not pleaded.

38. For my part, I would not accept those submissions.
39. As to the merits of the point, I would only say this. The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether the particular operation gives rise to any 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. Mr Alldis correctly concedes that that is the type of risk assessment which should have been carried out, which it may be noted is quite different from the “risk assessment” in fact carried out after the accident. If it had been carried out, it is much more likely than not that it would have identified the risk of injury, albeit of a comparatively low order. In those circumstances, a competent employer would surely have communicated that there was such a risk to the operators, and would at the very least have instructed them that in order to avoid the risk they must, in the judge’s or perhaps Mr Alldis’ phrase, hang on tightly at all times. The Recorder was, in my opinion, entitled so to hold.

Sherlock v Chester City Council [2004] EWCA Civ 201.
http://www.bailii.org/ew/cases/EWCA/Civ/2004/210.html

The claimant was injured by a circular saw. At first instance his claim was dismissed. However on appeal liability was established with 60% contributory negligence.

Lord Justice Latham:

24. Despite the robust attractiveness of Mr Alldis’s argument, I cannot accept it. First, as to the cause of the accident, it is true that the judge rejected, or perhaps to be more exact, did not accept, the appellant’s account. However, the judge’s conclusions were that it should have been obvious to the appellant that he should have either had a run-off table or a second man involved and should keep his hand well away from the saw blade, and that the fact that he chose not to follow this procedure was the reason for the accident. In other words the lack of a run-off table or a second man was at least a cause of the accident. Both experts said that a risk assessment would have identified this as a requirement, and that a risk assessment should have been carried out. In the circumstances of this case, I cannot see that the risk assessment needed to have been the formal procedure envisaged by Regulation 3 of the Management of Health and Safety at Work Regulations 1999; but at least there should have been some informal assessment by Mr Ankers or Mr Willmot identifying the need for the run-off table or the presence of the second man.

25. Even though the judge was entitled to conclude that the appellant was sufficiently well trained and experienced to have identified the requirement himself, that does not seem to me to be sufficient in itself to meet the common law requirement that the respondents should provide proper equipment and a safe system of work. At the very least the question should have been asked as to what was required so as to ensure that the appellant was alerted to or reminded of the need for either a run-off table or a second man. That was essentially what both experts agreed should have happened. If that had been done, both parties, that is the employer and employee, would have identified what was required and even if the only step taken by Mr Ankers had been to tell the appellant that he should construct a run-off bench himself there is nothing in the evidence to suggest that the appellant would not have followed such an instruction. The purpose of a risk assessment in a case such as this is to ensure that what may appear to be obvious is in truth obvious, in the sense that both parties have appreciated the risk. I say both parties, because it also provides the opportunity for an employer to ensure that he has taken appropriate steps to protect his employee.

TAKING PART IN EXTERNAL ACTIVITIES

Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Civ)
http://www.bailii.org/ew/cases/EWHC/Ch/2011/2263.html

His Honour Judge Oliver-Jones QC (Sitting as a Judge of the High Court):

The claimant was injured whilst taking part in a cycle race organised by his employers as a result of an activity day.

The assessment of safety

28 I find, as a matter of fact, that neither Mr Church nor Mr Backhouse, who had been given the responsibility of organising the event, had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors. That it was the most obvious of risks is confirmed not only as a mater of common sense (which both Mr Church and Mr Backhouse have but which they failed to apply) but by the document seen by Mr Church after the event in Mr Kilmurry’s office. To the extent either of them suggested that they had considered the risk of collision or falling from bicycles, then, in my judgment, this was a suggestion born of hindsight.

29 I also find as a fact that neither Mr Church nor Mr Backhouse properly assessed the need to recommend, let alone require, the wearing of cycle helmets for those engaged in either of the cycling events. Again, in my judgment, neither of them were properly trained to make such an assessment, and the overwhelming impression I gained from listening to them give their evidence was that they were simply trying to apply their own uninformed view of the matter. There is no doubt that Mr Church became aware of the health and safety recommendation as to the wearing of helmets at Fowlmead, because he made a note of it in his day book. I find as a fact that this knowledge post-dated the meeting with Mrs Gaysford and Mr Backhouse in the office, as his contemporaneous note, in my judgment, confirms, and that, as a consequence, it was not discussed at all. In fairness, it was not the evidence of either Mr Church or Mr Backhouse that they had discussed whether or not safety helmets should be recommended or required at this meeting. All that had been discussed was bicycle safety as a vague concept, and the only conclusion that had been drawn was that mountain biking should not be offered.

30 As to the briefing at Fowlmead, I am not satisfied that any more was ever said than that helmets were available. I do not accept that members of staff were either encouraged to wear them, as suggested by Mr Church, or told that they should wear helmets, as suggested by Mr Backhouse, because, if that had been the case, then there is no sensible explanation as to why 11 out of 12 of the racing cyclists were allowed to race without one. For the same reason, and still less, do I accept Mr Church’s oral evidence that “We decided we should recommend use of helmets, because that is what the Health and Safety Executive recommends”. In his contemporaneous note, and in full knowledge of what had happened to the claimant, he went no further than recording that he had “mentioned the availability of helmets” at both the start and end of the briefing.

31 In my judgment, after the accident, both Mr Church and Mr Backhouse concluded that they ought to have required helmets to be worn. This occurred to them, in my judgment, when they visited Mr Kilmurry’s office and made the discovery, too late, of the content of draft risk assessments and instructions of which they had been previously unaware because they had not asked for them. In my judgment, in the light of what they discovered after the event, they have each, but inconsistently, convinced themselves that more was said in the briefing than it was, because, as I find, they are now satisfied, not as a matter of mere hindsight but on proper reflection, that it ought to have been said and that they ought to have recommended the use of helmets and referred to the Health and Safety Executive’s requirement. I find as a fact that, whatever was said about the availability of helmets during the briefing session at Fowlmead, it was not properly communicated. I accept the evidence, including that of Mr Briggs, who referred to there being “a bit of an atmosphere”, that everyone was boisterous, noisy and talking over one another, possibly fuelled by some drink. It is not the case that only the claimant disputes hearing reference to helmets. Mr Briggs’ evidence was that he had no recall of receiving any advice about helmets, even though he had listened to the briefing. Also, although Mr Porter did recall hearing that “helmets were available if we wanted to use them”, it was his evidence that, when he was given his bicycle, he did not see nor was he offered any helmet.

34 It is common ground that none of the regulations to which I have referred have any application unless the claimant was at work. So, for example, regulation 3 of The Management of Health and Safety at Work Regulations provides:

“(1) Every employer shall make a suitable and sufficient assessment of—

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work…”

for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed on him by or under the relevant statutory provisions, which include the other regulations upon which the claimant relies in this case. As indicated at the beginning of this judgment, by virtue of section 52(1)(b) of the Health and Safety at Work Act 1974 : “An employee is at work throughout the time when he is in the course of his employment, but not otherwise.” Thus, the question is: was the claimant in the course of his employment whilst attending and participating in the event?

35 It has not been argued that it is unnecessary for me to deal with this issue, because the duty of care at common law, whether on an employer or an organiser of events such as this, is coextensive and coterminous with the statutory duties. Indeed, in respect of the provision of protective equipment, where an employee may be exposed to a risk safety, if not in respect of ensuring its use, the statutory duty is arguably stricter than the common law.

36 Mr Pooles QC submitted that attendance at this event was clearly not in the course of the employment of any of those who did attend, not least because it was not compulsory to attend at all and engagement in no part of the event was compulsory. He argued that employees are not employed to go on fun days, and that the event was a simple ‘thank you’ for the efforts of staff whilst they had been at work. Mr Ford QC argued that, notwithstanding that two members of staff did not attend but, rather, were probably, as I find, working, employees were expected to attend, particularly given that it was a Thursday afternoon when they would otherwise have been at work, that they were being paid their salaries, that the event was managed and organised by the employer, and that there was an element of team bonding which would be expected to foster an esprit de corps to the employer’s benefit. Indeed, as I indicated in the opening paragraph of the judgment, the event was actually described in terms of being “team building” or “team bonding” by some of the witnesses.

37 The many cases which deal with the concept of “course of employment” are almost invariably dealing with whether a wrongful act is within the course of employment so as to attract vicarious liability, rather than the pure concept itself. Even in the usual context, it is said that “The question whether a wrongful act is within the course of employment is a mixed question of fact and law, and no simple test is appropriate to cover all cases” – Clerk & Lindsell, paragraph 629 20th Ed. In HSBC Bank plc v 5th Avenue Partners [2009] EWCA Civ 296 (a case to which I was not specifically referred) Etherton LJ held that ultimately the decision as to whether there is vicarious liability “is a conclusion of law based on primary facts rather than a simple question of fact”. The so-called “Salmond test” is not particularly helpful to me. That test identifies when a wrongful act is deemed to be done in the course of employment, rather than defining what the course of employment is. The best one gets from this test is the requirement that it had to be closely connected with the employee’s duties. If that test is applied, it can hardly be said that having a fun day out is closely connected to the work of a surveyor or planning consultant. As Lord Nicholls said in the case of Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 , the “close connection” test tells us nothing about what type or degree of connection is necessary:

“This lack of precision is inevitable, given the infinite range of circumstances where the issue arises… Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions.”

Unfortunately, I have no such assistance in this case. However, I am able to make an evaluative judgment. In the well-known case of Lister v Hesley Hall Limited [2002] 1AC 215 , which considered issues of vicarious liability for the sexually abusive behaviour of a warden employee towards boys in a school boarding house, Lord Steyn deprecated conceptualistic reasoning (as he put it) and observed:

“Ideas divorced from reality have never held much attraction for judges steeped in the tradition that their task is to deliver principled but practical justice.”

He went on to refer to what Diplock LJ had said in Ilkiw v Samuels [1983] 1 WLR 991 :

“…the proper approach to the nature of the servant’s employment is a broad one…’As each of these nouns implies’ — he is referring to the nouns used to describe course of employment, sphere, scope and so forth — ‘the matter must be looked at broadly, not dissecting the servant’s task into its component activities — s such as driving, loading, sheeting and the like — by asking: what was the job on which he was engaged for his employer? and answering that question as a jury would .’” [Emphasis added]

Applying this approach, it is clear that in this case a jury would simply say that the defendant’s staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.

38 Trying a third approach, which is sometimes referred to as “being engaged in something which is an ordinary incident of the work upon which someone is engaged”, it is, in my judgment, impossible to say that having a fun day out is an ordinary incident of normal employment. On the contrary, by its very nature it is an extraordinary incident.

39 In my judgment, it is clear, having reached an evaluative judgment by seeking to apply the various approaches indicated by the authorities to which I have been referred, that neither the claimant nor anyone else was in the course of their employment when taking advantage of the defendant’s hospitality. It offends a sense of justness and reasonableness – “Can it be fair and just to hold the employer vicariously liable”(per Lord Steyn in Lister ). It offends, in my judgment, a sense of justness and reasonableness to conclude that the Health and Safety at Work Act and associated regulations were ever intended to be of application in the circumstances of this case. That is yet another reason why “at work” and “in the course of employment” in the context of those regulations should be construed as I have done.

41 My consideration of the law must, however, conclude with a consideration of what duty of care was owed by the defendant to the claimant. It is not argued that there was no duty owed by those who organised the event, namely Church and Backhouse. Nor is it argued that the defendant is not vicariously liable for any breach of duty of care they owe, because they, Messrs Church and Backhouse, were not acting in the course of employment when arranging and organising the event. They clearly were. Although the event was not in the course of employment, one cannot, in my judgment, simply ignore the relationship of employer and employee – see Ministry of Defence v Radcliffe [2009] EWCA Civ 635 at paras 21 and 22. It is, in my judgment, from that relationship, as well as the relationship of organiser and attendee, that the duty of care arise. In my judgment, the duty on the defendant in this case was about to take such reasonable care as any reasonable employer would take (a) to ensure that employees were reasonably safe in engaging in the activities which the employer had arranged and (b) in the making and management of the arrangements that were being organised.

42 In my judgment, that duty of care includes the making of adequate and suitable risk assessments, which, in my judgment, as was conceded in the case of Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66 , are the same as those owed under the regulations to which I have referred. In that case, in passages to which I have referred, Smith LJ stated:

“It is obvious that the failure to carry out a proper risk assessment can never be the direct cause of an injury. There will, however, be some cases

And this is one, in my judgment.

“in which it can be shown that, on the facts, the failure to carry out a proper risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. A decision of that kind will necessitate hypothetical consideration of what would have happened if there had been a proper assessment.”

Conclusions

43 In my judgment, on the facts I have found and applying the law as I have found it to be, the defendant, by Mr Church and Mr Backhouse, were in breach of the duty of care as I have just defined and delimited it. There was a clear failure to carry out a sufficient and suitable risk assessment. In fact, in my judgment, there was no real risk assessment at all beyond excluding mountain biking. I accept Mr Ford’s submission that the risk of collision in a competitive bicycle race between amateur riders was a very obvious risk, as was the potential consequence which, unfortunately, materialised in this case. The most important failure in the risk assessment process was the engaging of the management of Fowlmead in the assessment process. Had this been done, as in my judgment it ought to have been, then it would have become clear that there was not only the recommended use of helmets by the HSE, which itself was, in my judgment, ignored, but the compulsion upon which Fowlmead would have insisted for ordinary members of the public visiting the facility. This only became clear immediately after the event when, belatedly, Mr Church sought information about Fowlmead’s health and safety policy. The final paragraph of Mr Church’s contemporaneous note contains the kernel of that which can fairly and legitimately be said to be the foundation of their failures. This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use. That is all part of the assessment process.

SLIPPERS AND TRIPPERS

Bailey v Command Security Services Ltd
15/10/01 (Lawtel)
The claimant was a security guard. In his work he fell down an unguarded lift shaft.

JEFFREY BURKE Q.C.

30. Although if the First Defendants did not carry out a risk assessment of the dangers to their employees at the Second Defendants’ premises they would have been in breach of the duty imposed on them by Regulation 3 of the Management of Health and Safety at Work Regulations 1992, a breach of that Regulation does not give rise to a cause of action and therefore was not relied upon against them (and for the same reason it was not relied upon against the Second Defendants). However both Mr. Methuen QC on behalf of the Claimant, with pronounced diffidence, and Mr. Bate-Williams, with rather less diffidence, submitted that the First Defendants were in breach of their statutory duty owed to the Claimant under Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. Regulation 13, so far as relevant, provides…

37. The First Defendants manifestly did not appreciate that their security guards might go onto the relevant section of floor; they had not noticed that it was there; neither Mr. Barrett nor Mr. Moroz recalled seeing it when they were shown round the premises. It is unlikely that Mr. Facey, who appears to have had the major responsibility for safety, saw it or appreciated the danger; if he had, he presumably would have done something about it. However, I have already set out my finding that the First Defendants’ managers had ample opportunity to inspect and assess the premises before their employees began to work there; they ought to have carried out a proper survey and risk assessment. A proper survey and examination of the premises and assessment of the risks which they posed to their employees should have revealed the danger; but it did not, either because no risk assessment was carried out or because any such assessment was not carried out with appropriate thoroughness.

38. I have borne very carefully in mind the fact that these were not the First Defendants’ premises, that they had no direct control over the condition of the premises and that their employees at the premises would, at least for some of the time, be working to the direction of the Second Defendants’ staff (I shall return to these points later in considering the position as between the Defendants); but, as Mr. Moroz fairly accepted, it was the First Defendants’ duty to take reasonable steps to ensure that their employees’ proper sense of inquisitiveness did not lead them into danger; and in my judgment by failing to carry out any or a proper survey and risk assessment and, as a result, by failing to identify the danger, to bring it to the attention of the Second Defendants and to give appropriate warnings or instructions to their employees, including the Claimant, they failed to take reasonable care for his safety. Had they done so, the accident would not have occurred. The Second Defendants also had not appreciated the danger. I have no doubt that, if it had been brought to their attention by the First Defendants, they would have taken the simple and inexpensive step of providing a barrier so as to prevent access to the source of the danger.

42 I find that the Second Defendants were also in breach of the duty of care which, as occupiers of the premises, they owed to the Claimant. I have explained above, in considering the issue of the First Defendants’ negligence, why I have concluded that the danger was reasonably foreseeable by the First Defendants; and the argument that the occupiers of the building, who were using the second mezzanine floor in the condition in which it was at the time of the accident for about 6 months before it, should have appreciated the dangers, as I see it, has even more force. The Second Defendants had their own personnel involved in security; they ought in my judgment to have carried out in respect of their own employees and in respect of others working for them on their premises appropriate surveys and risk assessments and in so doing ought to have discerned the danger; but there was no Health and Safety Officer at the time; and, as I have already found (para. 16 above) no or no proper risk assessment was carried out. As a result the Second Defendants simply did not appreciate, as they ought to have done, that it was possible, as a result of the failure to replace the relevant section of guard rail after its removal for the installation of the lift, for someone to obtain access to the point from which the Claimant fell. As Mr. Porte said “we hadn’t noticed there was this gap. If we had we would have fenced it off’. Mr. Burlison, then the Second Defendants’ Loss Prevention Supervisor, was aware of the unfenced edge but not of the gap which gave access to it. He too said that if he had seen it he would have realised the need to do something about it.

Cheung v Zhu (t/a Yang Sing Fish and Chip) [2011] EWHC 2913 (QB)

JOHN LEIGHTON WILLIAMS QC:

42. Regulation 12(1) relates to the construction of workplaces and traffic routes. Whilst it imposes a strict duty (“shall”) that strictness is tempered by the phrase “suitable for the purpose for which it is used”. But Reg. 12(2) adds that Reg. 12(1) includes the requirement that the floor, or surface of the traffic route, shall not2 be slippery so as to expose any person to a risk to his health or safety. The essential criterion therefore is whether a slippery floor or traffic route surface puts the employer in breach of this regulation is whether the slipperiness exposes any person to risk to his health or safety. This was the view expressed in Marks and Spencer PLC v Palmer [2001] EWCA Civ 1528 by Waller LJ at para 16 :

“Suitability must be examined from a health and safety point of view. The question under that regulation is thus whether there is, in the construction of the floor, a risk to health and safety.”

As Waller LJ pointed out at paragraph 20, this boils down to an assessment of the risk.

43. Observations on the question of risk can be found in the observations of Hale LJ in Koonjul v Thameslink Healthcare Services (2000) PIQR 123, a case concerning whether or not an employer had avoided the need for employees to undertake manual handling operations “which involve a risk of their being injured”. Hale LJ said at p 126 :

“For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees’ safety which they might not otherwise have.”

44. In Marks and Spencer, Waller LJ after citing the above, which had been the subject of submission by counsel, observed in paras 25 to 26 :

25. I am not sure that language such as “real risk” or “slight risk” necessarily encapsulates the exercise that it seems to me must be performed. ….It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context; that is to say, the nature of the risk (i.e., here that the weather strip is by a door, that it is only 8 to 9.5 millimetres high, that it is next to some steps and that if the weather strip were tripped over a person may fall down the steps outside the door). But at the same time the assessment would hold that the weather strip was obvious, that it was in a place to be expected, and indeed this lady knew of it and there had been no complaints at all despite the number of exits that had taken place.

26. Then of course the assessment would take into account the nature of the persons who are posed to any risk. This lady, for example, was 63. The evidence was that she did not always walk picking her feet up, as perhaps she should have done, and the presumption must be that there would be a number of employees in Marks and Spencer such as this lady. But again the assessment would be that persons such as this lady had managed to exit without any difficulty. Surely (it could be said) persons can manage a weather strip which is only 8 to 9 mm proud of the floor.

27. The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did.

45. Waller LJ in the above extract is considering suitability and exposure to risk very much in the context of the case, an approach which Schiemann LJ reaffirmed with the simple observation at para 33 that in law, context is everything. The court went on to hold that the raised weather strip did not constitute an unacceptable risk.

49. I do not propose at this stage to recite the provisions of the Occupiers Liability Act 1957. I have been referred to Laverton v Kiapasha (T/A TAKEAWAY SUPREME) [2002] EWCA Civ 1656 where Hale LJ considered liability in a case similar to the present in the context of the Occupiers Liability Act, concluding on the facts of that case that there was no breach. The evidence about precautions was pertinent to the finding. In Caerphilly County Borough Council v Button [2010] EWCA Civ 1311 Pill LJ observed that the extent of the duty under Regs 12(1) of the 1992 Regulations was “similar” to those in negligence. I am sure he chose this word with care. I do not regard his remarks as being definitive of the point at large, as Mr Laughland for the Defendant has invited me to consider, but rather as reflecting the relevant considerations which arose in that case. Mr Bebb QC for the Claimant has referred me to observations of Longmore LJ at paragraph 8 in Craner v Dorset County Council {2008] EWCA Civ 1323 that the Regulations impose a higher standard of liability on employers than does common law negligence.

68. Finally, so far as the regulations are concerned Mr Bebb invites me to find a breach of Reg. 3 of the 1999 Regulations, which require a risk assessment to be carried out. He says, quite simply there was no risk assessment. Mr Laughland submits that any such breach was not causative but does so on the basis that the tiles were suitable and there was an adequate cleaning system.

69. I have already found these tiles were unsuitable. I consider a proper risk assessment, if carried out, would have revealed this, also resulted in the cleaning system being reappraised and improved beyond the twice a day wet mopping regime and that, if necessary, proper absorbent matting should have been in place at the very least near the door. I therefore find this allegation also proved.

70. In these circumstances I do not consider it necessary to consider breach of the Occupiers Liability Act 2007 but would observe that my view would be that on the evidence the Defendants had not taken reasonable care to ensure the Claimant would be reasonably safe when on the premises, for the reasons given above.

East Anglia University v Spalding [2011]EWHC 1886 (QB)

Mr Justice Spencer:

The claimant, a maintenance man at the University, slipped on a wet bin liner whilst working under a sink. He succeeded at first instance and the defendant appealed.

The Management Regulations

17 I turn to the Management of Health and Safety at Work Regulations 1999 . The pleaded allegation was breach of regulation 3 in that the defendants failed to make a suitable and sufficient assessment of the risks to the health and safety of the claimant whilst at work. Regulation 3(1) provides as follows:

“Every employer shall make a suitable and sufficient assessment of:

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.”

It is common ground that the phrase “the relevant statutory provisions” means the totality of the relevant health and safety legislation, which is very broad based.

18 Mr Viney submitted that this regulation was not engaged because there was no risk to health and safety because there was no foreseeable risk of injury. In the light of my conclusion that the judge was entitled to find that there was such a foreseeable risk, that submission of Mr Viney must likewise fail. As to whether there was a breach of this duty, the judge had before him the record of the defendant’s risk assessment for repairing or replacing leaking radiators in a document dated 14th May 2005, some 12 months before the accident. He heard evidence from the defendant’s maintenance team leader, Mr Watts, who carried out that assessment.

20 The document comprising the risk assessment identified as hazards in the course of repairing or replacing leaking radiators the following: “scalding from hot water, strains injury, and slipping.” For “slipping” the only risk identified was slipping on vinyl flooring. This was reasonable because, as the judge accepted, there was no inherent risk of slipping on the wet carpet as opposed to slipping on the bin bag that was put down over the carpet. Under “action to be taken” in the risk assessment the following are listed: “Wet vac, squeegees, dehumidifier and Rug Doctor machine held in Estates Building”. That is significant, as Mr Xydias points out, because it recognised the obvious reality that if radiators leak, there is likely to be a lot of water about, which can itself be a hazard.

21 The judge’s finding in relation to this alleged breach was as follows at paragraphs 30 to 31 of the judgment:

“Well I have seen the risk assessment done by Mr Watts. He identifies as far as floors are concerned only vinyl flooring. Well I think quite honestly, and I am not just applying hindsight, that it should have been fairly obvious that a plumber might be asked to lie on a wet surface such as a carpet, and I do not think that the answers he has given in the statement I have quoted really address that issue at all.”

The answers to which the judge was referring here were answers to the effect that plumbers work with water every day, and the claimant could have brought a change of trousers. The judge continued:

“I do not think the risk assessment went as far as it should have done. They should have asked themselves what is to happen if a plumber is invited to lie for up to two hours in water, which will inevitably be cold by the time he gets there. That just was not addressed.”

22 In my judgment, this was a finding which the judge was perfectly entitled to make and a conclusion he was entitled to reach on the facts before him, and it cannot in any sense be described as wrong. The judge went on to find that what he needed in order to do the job comfortably was “either some form of mat or mattress, or whatever, on which he could lie, or some form of protective clothing”.

Conclusion

29 For these reasons, I conclude that the judge was entitled to find in the claimant’s favour, at least on the grounds of breach of duty under regulation 3 of the Management Regulations and breach of the common law duty of care. It follows that the appeal must be dismissed.

RISK ASSESSMENT AND MANUAL HANDLING: THE GUIDANCE NOTES

The Manual Handling Regulations were amended in 2003 so that Regulation 4 (1)(b)(i) imposes a duty to “make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them.” http://www.legislation.gov.uk/uksi/1992/2793/made

In considering the question of whether a suitable and sufficient assessment has been made you should always have a copy of the HSE Guidance on the Regulations. ( see http://www.hse.gov.uk/pubns/priced/l23.pdf for a copy) This is always an essential starting point in considering:

(1) Whether a purported risk assessment is adequate.

(2) What steps would have been taken if a risk assessment had, in fact, been carried out.

USEFUL POINTS TO ARISE FROM THE GUIDANCE NOTES

The first duty is to avoid a manual handling task that involves a risk of injury.
2. If it is only if it is not reasonably practicable to avoid the manual operation that the risk has to be assessed and the risk of injury reduced to the lowest level reasonably practicable.
The practical definition of “reasonably practicable” is found at paragraph 31.

“The duty can be satisfied if the employer can show that the costs of any further preventive steps would be grossly disproportionate to the further benefit from their introduction.”

You will also find useful observations about:

Application to the emergency services (32 – 33).
Continuing nature of the duty – the assessment has to be kept up to date (34 – 35).
A reminder that the duty exists on work away from the employer’s duties ( 36 – 37).
The observation that those described as “self-employed” are not always self employed and may be employees as described in the Regulations (38 – 40).

AVOIDING MANUAL HANDLING

If the manual handling operation indicates a possibility of injury from the manual handling operations then the employers first duty is to consider is whether the manual handling operation can be eliminated altogether. Numerical guidance is found in Appendix 3 (p.54 – 59). However, as the guidelines themselves point out at p. 59:

“Remember the use of these guidelines does not affect the employer’s duty to avoid or reduce the risk of injury where this is not reasonably practicable. The guideline figures, therefore, should not be regarded as weight limits or approved figures for safe lifting. They are an aid to highlight where detailed risk assessments are most needed. Where doubt remains, a more detailed risk assessment should always be made.”

First question – can handling be eliminated ?

Can a process of machining or wrapping take place in situ?
Can a treatment be brought to the patient?
Can the process be automated or mechanised ?

Raw materials can be handled in the workplace in ways that eliminate or reduce the need for manual handling
Powders or liquids can be transferred using gravity feed or pneumatic transfer.
The layout of the process can be designed to minimise transfer of materials.

GENERIC RISK ASSESSMENTS

The assessment will be “suitable and sufficient” as long as they have considered:

All the types of manual handling operations the employees are required to carry out.
Any relevant individual factors covered by regulation 4(3).
Generic risk assessments based on risks which are common to a number of broadly similar operations are acceptable, however these should consider all the manual handling risks that are present in these operations. “If the assessment is based on a narrow selection of operations, some manual handling risks may be missed.” The findings should be made available to all employees and safety representatives (48).

Last minute assessment not suitable

“An assessment made at the last minute is unlikely to be “suitable and sufficient”. In carrying out assessments, employers, in consultation with their employees, need to use their experience of the type of work being done.”

This particularly helps which is work which is very varied, peripatetic or involves dealing with emergencies. (51)

A distinction is drawn between the employers risk assessment and the everyday judgments which supervisors and others will have to make in dealing with manual handling operations. The assessment should identify in broad terms the foreseeable problems likely to arise. The measures should include the provision of training to enable supervisors and employees to cope effectively with the operations they are likely to undertake (52).

In difficult areas, such as handling people. A multi-stage risk assessment is applicable (53).

The need for a more detailed risk assessment

Where the assessment identifies a risk of injury but comes to the conclusion that the avoidance of the operation is not reasonably practicable a more specific assessment needs to be carried out as required by regulation 4(1)(b)(i).

This assessment requires four major activities to be taken into account:

The task
The load
The working environment
The individual capability

Who should carry out the assessment?

Members of staff familiar with the operations in question can carry out the assessment as long as they are competent to do so. Before in-house assessors are used checks should be made to ensure that they have reached an adequate level of competence. They should be able to:

Identify hazards (including less obvious ones) and assess risks.
Use additional sources of information.
Draw valid and reliable conclusions from assessments and identify steps to reduce risk.
Make a clear record of the assessment and communicate the findings to those who need to take appropriate action and to the workers concerned.
Recognise their own limitations as to assessment so that further expertise can be called on if necessary.
In some cases it may be necessary to call on outside help.

There is a useful chart on p.15.

Generally the assessment should be recorded (p.15).

GENERAL PRINCIPLES FOR REDUCING MANUAL HANDLING RISKS

The Guidance Notes give detailed guidance on striking a balance. Adopting an ergonomic approach.

Mechanical assistance

There are useful diagrams and suggestions at p.17 onwards. The observation is made, at 83, that the steps taken to reduce the risk of injury should be “appropriate” and their effectiveness should be monitored.

Reducing the risk in manual handling

There are a number of factor that have to be considered in the task.

Is the load held or manipulated a distance away from the trunk.
Does the task involve twisting the trunk.
Does the task involve stooping.
Does the task involve reaching upwards.
Does the task involve considerable lifting or lowering distances (read para 91 in particular).
Does the task involve considerable carrying distances.
Does the task involve considerable pushing or pulling of the load.
Does the task involve a risk of sudden movement of the load.
Does the task involve several risk factors.
Reducing the risk

The risk can be reduced by:

Changing the task layout.
Improving efficient use of the body.
Changing work routine.
Giving proper training and ensuring good communication between team members.
The load

Matters that have to be addressed:-

Is the load heavy
Is it bulky or unwieldy.
Can the load be made easier to grip.
Can the load be made more stable.
Are injuries likely from contact with the load.
Is the load being pushed or pulled.
Is the equipment designed so it can be handled easily.
The working environment

Factors to be considered:-

Do the handlers have room to move around easily.
Are there uneven, slippery or unstable floors.
Are there variations in floor levels.
Are work surfaces at different heights.
Are there extreme of temperatures, high humidity or gusts of wind that may affect handling.
Are there poor lighting conditions.
Do the employees have precise information on the load.

Reviewing the assessment

At 176 employers are reminded that the assessment should be kept up to date. It should be reviewed if there is a change in the manual handling operations , if a reportable injury occurs or when individual employees suffer an illness, injury or disability which makes them more vulnerable to risk.

Individual capability

Does the task require unusual strength, height etc.

“An individual’s physical capability varies with age, typically climbing until the early twenties and then gradually declining. This decline becomes more significant from the mid-forties.” (179).

The risks of injury may be higher for teens and those in their fifties.

Further capability can be affected by their health status – it is unwise to put someone with a history of back pain in a job which involves heavy manual work.

Further the usual nature of the work has to be considered:

“For example, demands that would not be considered unusual for a group of employees engaged in office work might not be out of the ordinary for those normally involved in physical labour.” (182)

“As a general rule, however, the risk of injury should be regarded as unacceptable if the manual handling operations cannot be performed satisfactorily by most reasonably fit, healthy employers.”

Clothing, footwear or other personal effects

Personal protective equipment is only to be used as a last resort. If PPE has to be worn care must be taken to consider it’s implications for manual handling. Some clothing can restrict movement during manual handling.

The use of abdominal and back support belts is controversial, they can make matters worse. It is better to reduce the risk more directly and effectively.

KNOWLEDGE AND TRAINING

There are important observations at 188.

Section 2 of the HSW Work Act and regulations 12 and 13 of the Management Regulations require employers to provide their employees with health and safety information and training. This should be supplemented as necessary with more specific information and training on manual handling risks and prevention as part of the steps to reduce risk required by regulation 4(1)(b)(ii) of the Regulations.
“The risk of injury from a manual handling task will be increased where workers do not have the information or training necessary to enable them to work safely. For example, if they do not know about any unusual characteristics or loads or about the system of work designed to ensure their safety during manual handling, this may lead to injury. It is essential that where, for example, mechanical handling aids are available, training is provided in their proper use.”

The provision of information and training alone will not ensure safe manual handling. The first objective in reducing the risk of injury should always be to design the manual handling operations to be as safe as is reasonably practicable. This will involve improving the task, the working environment and reduce the load weight as appropriate. Where possible the manual handling operations should be designed to suit individuals, not the other way round. “Effective training will complement a safe system of work, and has an important part to play in reducing the risk of manual handling injury. It is not a substitute for a safe system of work.”

There is detailed guidance on training, instruction, good handling technique.

Employees especially at risk

Particular attention must be given to employees who are or have recently been pregnant, are known to have a history of back, knee or hip trouble, hernia or other health problem; have a previous manual handling problem or are young workers.

Health surveillance

There is no duty in the Manual Handling Regulations to carry out health surveillance. Currently no techniques are available that would reliably detect early indications of ill health caused by manual handling and there is therefore no requirement for health surveillance to be carried out. However information can be obtained from measures such as reporting, monitoring and investigation of symptoms.

“It is good practice to put in place systems that allow individuals to make early reports of manual handling injuries or back pain.”

These can be supplemented by monitoring absence records, lifestyle and health promotions.

THE APPENDICES

I am not going to go through the appendices in detail.

Appendix one gives detailed guidance for the principles of risk control management.
Appendix 2 gives an overview of the assessment of manual handling risks.
Appendix 3 is a risk assessment filter.
Appendix 4 gives examples of assessment checklists for lifting and carrying and pushing and pulling.
Appendix 5 gives information on the manual handling assessment chart.

SUMMARY OF KEY POINTS

1. THE NATURE OF THE DUTY TO RISK ASSESS

Regulation 3 of The Management of Health and Safety at Work Regulations 1999 imposes a duty upon employers and the self-employed to create a risk assessment.

However as a result of The Enterprise and Regulatory Reform Act 2013 a failure to risk assess no longer gives rise to civil liability. The amended Section 22 of The Management of Health and Safety Regulations 1999 now states

22.— Restriction of civil liability for breach of statutory duty

(1) Breach of a duty imposed by regulation 16, 16A, 17 or 17A shall, so far as it causes damage, be actionable by the new or expectant mother.

(2) Any term of an agreement which purports to exclude or restrict any liability for such a breach is void.”

IMPORTANT POINTS

Employees bringing a claim against their employers for a failure to risk assess will no longer be able to rely on strict liability imposed by the Regulations.
Instead Employers will have to show that their employers were negligent and breached their common law duty.

2. HOW HAS THE DUTY BEEN CONSTRUED BY THE COURTS

The courts have been careful to scrutinise risk assessments in accident at work cases in Threlfall v Hull City Council [2010] EWCA Civ 1147.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3042.html

it was stated that :

“For the last 20 years or so, it has been generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with his operations so that he can take suitable precautions to avoid injury to his employees. In many circumstances, a statutory duty to conduct such a risk assessment has been imposed. Such a requirement (whether statutory or not) has to a large extent taken the place of the old common law requirement that an employer had to consider (and take action against) those risks which could be reasonably foreseen.

The Courts approach to Risk Assessments in specific situations can be found in the following cases:

3. HOW THE DUTY WAS CONSTRUED BY THE COURTS PRIOR TO THE FAILURE TO RISK ASSESS GIVING RISE TO CIVIL LIABILITY

Before Civil Liability was attached to a failure to risk assess the courts had found that a failure to risk assess could give rise to liability.

Examples

Griffiths –v- Vauxhall Motors Ltd (2003) http://www.bailii.org/ew/cases/EWCA/Civ/2003/412.html

The Claimant was injured when a gun he was using to put bolts into cars kicked back. It was accepted that the employer should have carried out a risk assessment

Sherlock –v- Chester City Council (2004)

http://www.bailii.org/ew/cases/EWCA/Civ/2004/210.html

The Claimant was injured by a circular saw. Lord Justice Latham stated:

Even though the judge was entitled to conclude that the appellant was sufficiently well trained and experienced to have identified the requirement himself, that does not seem to me to be sufficient in itself to meet the common law requirement that the respondents should provide proper equipment and a safe system of work. At the very least the question should have been asked as to what was required so as to ensure that the appellant was alerted to or reminded of the need for either a run-off table or a second man. That was essentially what both experts agreed should have happened. If that had been done, both parties, that is the employer and employee, would have identified what was required and even if the only step taken by Mr Ankers had been to tell the appellant that he should construct a run-off bench himself there is nothing in the evidence to suggest that the appellant would not have followed such an instruction. The purpose of a risk assessment in a case such as this is to ensure that what may appear to be obvious is in truth obvious, in the sense that both parties have appreciated the risk. I say both parties, because it also provides the opportunity for an employer to ensure that he has taken appropriate steps to protect his employee.

Furthermore in Reynolds –v- Strutt & Parker [2011] it was stated In my judgment, that duty of care includes the making of adequate and suitable risk assessments, which, in my judgment, as was conceded in the case of Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66 , are the same as those owed under the regulations to which I have referred.

IMPORTANT POINTS

These cases show that although the duty to risk assess does not give rise to civil liability, it does not mean that a Claimant will not be able to rely on a failure to risk assess when trying to establish negligence/liability.

Although the approach of the courts is yet to be seen there is a possibility that a failure to risk assess will be found to be a breach of employers’ common law duty of care.
4. SPECIFIC AREAS WHERE RISK ASSESSMENTS ARE RELEVANT.

(1) Taking part in external activities

Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Civ)

http://www.bailii.org/ew/cases/EWHC/Ch/2011/2263.html

The Claimant was injured whilst taking part in a cycle race organised by his employers during an activity day. Although Section 3 of The Management of Health and Safety at Work Regulations did not apply (he was not at work at the time of the accident) the Defendants were liable for a failure to properly risk assess. Their common law duty of care included the making of an adequate risk assessment:

“It has not been argued that it is unnecessary for me to deal with this issue, because the duty of care at common law, whether on an employer or an organiser of events such as this, is coextensive and coterminous with the statutory duties.”

(2) Slippers and Trippers

Bailey –v- Command Security Services (15/10/01 Lawtel)

The Claimant security guard was injured when he fell down a lift shaft. The Regulations were not relied upon. However it was stated that:

“it was the First Defendants’ duty to take reasonable steps to ensure that their employees’ proper sense of inquisitiveness did not lead them into danger; and in my judgment by failing to carry out any or a proper survey and risk assessment and, as a result, by failing to identify the danger, to bring it to the attention of the Second Defendants and to give appropriate warnings or instructions to their employees, including the Claimant, they failed to take reasonable care for his safety. Had they done so, the accident would not have occurred.”

See also Cheung v Zhu (t/a Yang Sing Fish and Chip) [2011] EWHC 2913 (QB) and East Anglia University v Spalding [2011]EWHC 1886 (QB)

(3) Manual Handling

The Manual Handling Operations Regulations were amended in 2003 so that there is a duty to make a suitable and sufficient assessment of all such manual handling operations at work.

The HSE Guidance gives useful information on when a risk assessment is adequate see (http://www.hse.gov.uk/pubns/priced/l23.pdf) it should consider the task, the load, the working environment and the individual capability. Again a failure to do so is likely to help establish liability in negligence.

IMPORTANT POINTS

Although in principle civil liability has been removed from a failure to risk assess, Risk Assessments are still important.
A failure to risk asses, if causative of the accident, is likely to lead to liability being established.
In many circumstances the employers’ common law duty of care will encompass the duty to carry out a risk assessment.
RELATED POSTS

See https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/09/30/the-remaining-importance-of-health-and-safety-regulations-after-1st-october-2013/

USEFUL LINKS: TO THE REGULATIONS

The Health and Safety Executive

http://www.hse.gov.uk

The Management of Health and Safety at Work Regulations 1999

http://www.legislation.gov.uk/uksi/1999/3242/contents/made

The Manual Handling Operations Regulations 1992

http://www.legislation.gov.uk/uksi/1992/2793/made

The Provision and Use of Work Equipment Regulations 1998

http://www.legislation.gov.uk/uksi/1998/2306/contents/made

The Workplace (Health, Safety and Welfare) Regulations

http://www.legislation.gov.uk/uksi/1992/3004/contents/made

The Work at Height Regulations 2005

http://www.legislation.gov.uk/uksi/2005/735/schedule/6/made

The Personal Protective Equipment Regulations 1992

http://www.legislation.gov.uk/uksi/1992/2966/regulation/4/made

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