BREACH OF STATUTORY DUTY AFTER THE ENTERPRISE AND REGULATORY REFORM ACT 2013 : A SCOTTISH DECISION: DALEKS ARE NOT THAT DANGEROUS AFTER ALL

The precise impact of the ERRA upon liability is still very much open to debate.  Some guidance may be found in the Scottish case of Gilchrist -v- Asda Stores Ltd [2015] CSOH 17. A judgment of Lady Stacey where judgment was given on the 17th June 2015.

THE CASE

The pursuer (claimant to those in E&W) was employed by the defendant as a shop assistant. She was was provided with a dalek footstool to allow her to reach high racks. Whilst she was working hanging clothes on hooks some 7 feet off the floor she fell and suffered injury.

KEY POINTS

  • The Regulations made under the Health and Safety at Work Act remain in force and remain relevant as evidence of standards expected of employers in civil cases.
  • On the facts of this case any breach by the employer was not causative of the injury.

THE CAUSE OF THE FALL

[7]        “The evidence of the pursuer was clear to the effect that the fall was nothing to do with her having to reach above her head to put clothes onto racks.  She had completed that work before she fell.  Her fall happened when she was stepping backwards off the stool and she fell for no reason she could explain; it was just an accident in which she lost her footing.”

THE ARGUMENTS ABOUT THE EFFECT OF THE ERRA UPON THE EMPLOYER’S DUTY

“[13]      Counsel argued that in the face of foreseeable risk of injury, the defenders failed to take reasonable care for the pursuer’s safety.  She referred to Munkman at p.140, paragraphs 4.49 to 4.51, where the author refers to the existence of duties on the employer

“to take reasonable care, and to use reasonable skill, first, to provide and maintain proper machinery, plant appliances and works; secondly to select properly skilled persons to manage and superintend the  business and thirdly to provide a proper system of working”

as set out in the well-known case of Wilsons and Clyde Coal 1938 AC 57 and asserts that there are four elements in the duty of an employer being plant, premises, staff and system of work.

[14]      The Enterprise and Regulatory Reform Act 2013 (the 2013 Act) by s.69 amended the Health and Safety at Work etc Act 1974 s.47 in so far as it relates to civil liability.  The section now provides the breach of a duty imposed by a statutory instrument containing health and safety regulations shall not be actionable except so far as regulations made under the 2013 Act so provide.  Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law.  She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the act did not undermine core health and safety standards and that employers’ statutory duties would remain relevant as evidence of standards expected of employers in civil cases.  She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably.  She referred to Munkman p. 668, Charlesworth & Percy para 12 -73 and Robb v Salamis 2007 SC (HL) 71.  Counsel argued that the existence of a regulation demonstrates that harm is foreseeable, under reference to Boyle v Kodak [1969] 1 WLR 661 in which Lord Reid said

“Employers are bound to know their statutory duty and to take all reasonable steps to prevent their men from committing breaches”.

In support of her argument counsel referred to Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412, to Buck v Nottinghamshire NHS Trust [2006 ] EWCA 1576, to Spencer v Boots the Chemist [2002] EWCA Civ 1691 and to Baker v Quantum Clothing Group [2011] 1WLR 1003.  She argued under reference to the case of Hide v Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545 that if a regulation applied, then an employer may still avoid liability if what happened was due to unusual and unforeseen circumstances beyond the employer’s control; or if the cause was some exceptional event the consequence of which could not have been avoided despite the exercise of all due care.  Otherwise an employer was liable for injury caused by foreseeable risk.  That case had been approved in Scotland in the case of Kennedy v Chivas Brothers Ltd 2013 SLT 981.  The court approved the dicta of Longmore LJ in the case of Hide to the following effect:

‘Once, therefore the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part.  The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were ‘unforeseeable’ or ‘exceptional’ in the sense given to those words in the Directive.’

[15]      With regard to the effect of the 2013 Act, counsel for the defender submitted that the section must have some content but did not expand on his argument.  I am prepared to accept counsel for the pursuer’s argument, no contrary submission being made.”

THE DECISION THERE MAY HAVE BEEN A BREACH OF DUTY BUT THIS WAS NOT CAUSATIVE OF THE ACCIDENT

Decision

“[26]      The pursuer did not give evidence to support her case on record.  The fall did not happen because her hands were full with packets of clothing, or because she had to reach above her head on a stool which was of a design which made such a movement dangerous. All that has been proved is that the pursuer fell when coming down from the dalek.  I accept that she was working at height.  However, it was not argued that the dalek was unsafe.  Counsel specifically stated that it was safe equipment for use for example in a library, where a person might step on it to retrieve or replace a book on a shelf, and then step off it.  She accepted that there would be no breach by an employer requiring an employee to do that.  Her case was that the dalek was unsafe for the particular task that the pursuer had to perform.  There is no evidence to support that contention, in that the pursuer did not fall because she had to carry out any manual handling task.  Thus the pursuer did not prove the case on record.  She had no pleadings for any case that the dalek was in itself unsafe, and she made no submission to that effect. 

[27]      I accept the argument put before me by counsel of the pursuer about the applicability of the regulations.  I accept that the employers were under a duty to carry out a risk assessment of the use of the dalek.  I find that they did so.  It was accepted by the pursuer that the dalek could safely be used in certain circumstances.  There was no case put that it was not a suitable piece of equipment for use in getting access to a rack.  This is a case where an accident happened which was not caused by breach of any duty by the employer.  The facts which I find proved do not show that the dalek footstool was not suitable for standing on.  It seems from the pleadings that at some stage it had been averred that the pursuer fell because she had to reach up and that action caused her to lose her balance.  Those averments were removed, no doubt following clarification of what the pursuer claimed had happened.  At the proof, the pursuer’s evidence was clear, as noted above.  All that could be said was that she had to stand on a stool to do her work.  It was accepted that the stool was suitable for the task for which it is often used in a library.  That being so, it has not been shown that the accident happened as a result of any use of the stool in breach of the employer’s duties.”

COMMENTARY

It is interesting that there was a clear difference between the case as originally pleaded and the case put at trial. Certain averments “were removed, do doubt following clarification of what the pursuer claimed had happened.”  This case shows the importance of taking an accurate proof of evidence at an early stage. (Alternatively, of course, it shows the difficulties that can arise when a witness has a change of recollection of the cause of an accident).

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One comment

  1. Reblogged this on Zenith PI.

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