LOSING AN ARM AND A LEG: UNGUARDED MACHINERY AFTER THE ERRA

Much of the discussion about the impact of the ERRA has focused upon strict liability for defective work equipment. However the provisions of Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 provided for strict liability when a claimant came into contact with dangerous part of machinery.  How has this been affected by the ERRA?

 INJURIES CAUSED BY MACHINERY

 The devastation that can be caused by defective machinery can be seen in two Health and Safety Executive press releases last Friday.

Oldham tissue firm fined over severed fingersAn Oldham-based tissue manufacturer has been fined for safety failings after an employee lost the tops of two fingers in machinery. Rose Tissues Ltd, which processes and prints kitchen roll and toilet paper at its plant on Sefton Street in Hollinwood, was prosecuted by the Health and Safety Executive (HSE) following the incident on 17 […]http://press.hse.gov.uk/2013/oldham-tissue-firm-fined-over-severed-fingers/?eban=govdel-press-north-west&cr=25-Oct-2013An experienced worker had his right forearm pulled off by a conveyor belt as he was trying to clean it, a court heard today. Stephen John, 57, of Baglan Moors, Port Talbot, was working for Neath Port Talbot Recycling Ltd in Swansea when the incident happened on 11 May 2011. Swansea Crown Court fined the […]http://press.hse.gov.uk/2013/worker-lost-arm-in-conveyor-at-south-wales-recycling-firm/?eban=govdel-press-wales&cr=25-Oct-2013

REGULATION 11

Regulation 11(1) sets out the duties clearly:-

“11.  (1)  Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective—

(a)        to prevent access to any dangerous part of machinery or to any rotating stock-bar; or

(b)        to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone.”

THE EFFECT OF THE ERRA

Prior to the ERRA most discussion of civil liability could stop at 11(1).   This regulation imposed a strict duty

to prevent access to dangerous machinery or prevent that machinery moving.   Now, of course, a claimant

has to prove negligence, the Regulations are indicative of the common law standard.

THE HIERARCHY OF MEASURES

 It may now be necessary for litigators to consider the hierarchy of measures set out in Regulations 11(2)and (3).

“(2) The measures required by paragraph (1) shall consist of—

(a)        the provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(b)        the provision of other guards or protection devices where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(c)        the provision of jigs, holders, push-sticks or similar protection appliances used in conjunction with the machinery where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(d)        the provision of information, instruction, training and supervision.

(3) All guards and protection devices provided under sub-paragraphs (a) or (b) of paragraph (2) shall—

(a)        be suitable for the purpose for which they are provided;

(b)        be of good construction, sound material and adequate strength;

(c         be maintained in an efficient state, in efficient working order and in good repair;

(d)        not give rise to any increased risk to health or safety;

(e)        not be easily bypassed or disabled;

(f)         be situated at sufficient distance from the danger zone;

(g)        not unduly restrict the view of the operating cycle of the machinery, where such a view is necessary;

(h)        be so constructed or adapted that they allow operations necessary to fit or replace parts and for maintenance work, restricting access so that it is allowed only to the area where the work is to be carried out and, if possible, without having to dismantle the guard or protection device.”

THE ESSENTIAL STEPS

Claimants, in particular, must establish that the defendant failed to meet the standards set out in the Regulations.  This is best done by looking both at the Regulations, the Code of Practice and Health and Safety Executive guidance.

THE COMMON LAW

 There are some interesting cases. Prior to the Work Equipment Regulations coming into force strict liability in relation to the fencing of machinery was imposed by s.14(1) of the Factories Act 1961.

In Butt –v- Inner London Education Authority (1968) 66 LGR 379 a student at a technical college was injured by an unfenced printing machine.  The Factories Act imposed a strict duty to prevent contact.  Although the Factories Act was not applicable it was treated as analogous and set out the standard in negligence.   Liability was established even though it was shown that it was the normal practice in factories not to provide a guard.

In the Scottish case of Moffat –v- Atlas Hydraulic Loaders Ltd 1992 SLT 1123 OH, it was held that the common law duty was the same as the duty under s.14(1) of the Factories Act 1961. Lord Marnoch stated:-

“In the foregoing circumstances counsel for the defenders eventually conceded — in my opinion correctly — that there was no answer to the case pled by the pursuer under s. 14 (1) of the Factories Act 1961. Nor, in my opinion, is there any answer to the common law case insofar as it incorporates the proposition that it was the duty of the defenders to take reasonable care to “maintain” a safe system of work which did not involve the risk of the pursuer’s hand becoming jammed by the paddles, and to take reasonable care to “see that said machine, while in operation, was securely fenced”. These are non-delegable duties of care and, while there was some suggestion in the evidence, albeit inconclusive, that the pursuer was a chargehand, there was absolutely no suggestion that he was formally the representative of the defenders in the matter of safe working practices.”

WHERE TO LOOK FOR FURTHER GUIDANCE

There are many publications which set out the steps an employer should take to prevent injury by machinery.

http://www.hseni.gov.uk/l112_safe_use_of_power_presses.pdf

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