Legal Update July 2013

1. Legal Update July 2013 John Mitchell Head of Health and Safety

2. Breach of statutory duty Reasonable practicability Causation Strict liability Manual handling Defective risk assessment Workplace regulations Stair rails Windows PUWER Control of work equipment Hazards covered by regulations Negligence Safe system of work Trip hazard Claimant suing himself Corporate fun days Hazardous pursuits: Rock climbing Obstacle course Occupiers’ liability Significance of earlier incidents Wet floors Sports pitches Corporate manslaughter Contents

3. Recent developments • Fee for Intervention • LASPO – restriction on defence costs • Primary authorities • RIDDOR amendments and consultation • ERRA – removal of compensation for strict liability duties in health and safety regulation • The self employed “exemption” • The “promotion of growth duty” • The abolition of the AALA • The Appeal Panel • Myth Busters Challenge Panel • Enforcement code

4. Breach of statutory duty – “reasonably practicable”Strange -v- Wincanton Logistics (Oct 2011) • Manual handling • System of work requiring manual moving and stacking of pallets • Employer claimed that it was not reasonably practicable to use FLTs on ground of: • Cost • Increase in other risks • Difficulty of manoeuvre • Risk of injury from manual handling was low

5. Breach of statutory duty – effect of breachWilson -v- North Lanarkshire Council (Oct 2011) • Manual handling • Claim by employee for damages for disc herniation arising from long term lifting and carrying duties • Employee’s evidence disbelieved by court • Employee’s claim nevertheless substantiated • Employee nevertheless being awarded no compensation.

6. PPE Blair -v- Chief Constable of Sussex (Aug 2012) • B was a police motorcyclist • He undertook some off-road training during the course of which he fell off his motorbike • His lower leg was injured • He claimed compensation on the ground that his boots were inadequate to protect him • He alleged that motocross boots should have been provided • The PPE regulations are strict liability regulations

7. Pre-regulation claims for compensationBaker -v- Quantum Group (Apr 2011 on appeal) • Claim for noise induced hearing loss in the knitting industry • Arose from the time when there was no regulation • General government and other guidance was that noise above 90 dBA LEP,d was harmful • Employee was exposed to noise at 86 dBA LEP,d • The issues: • Could the court distinguish between employers? • Could the employers could rely upon that guidance?

8. Manual handlingAli Ghaith -v- Indesit Fridges (Aug 2012) • Ali Ghaith was employed as a field service engineer • During a stocktake of his van he was required to lift boxes • He suffered a back injury, which was an aggravation of an existing condition • A number of risk assessments dealt with manual handling by engineers, but not in relation to stock taking • Ali Ghaith claimed compensation on the ground that Indesit was in breach of the Manual Handling Regs

9. Workplace Regulations – handrailsBroadfield -v- Meyrick Estate (Jul 2011) • Staircase in separate flights • Each flight separated by a small landing • Claimant fell down the first flight • Momentum carried her across the landing and down the second flight • Handrail was not continuous down the whole set of stairs • Issues: • Should the handrail have been continuous? • Would it have made any difference if it had been?

10. Workplace Regulations – windowsWallace -v- Glasgow City Council (Aug 2011 on appeal) • A lady used a toilet cubicle in her place of work • Out of courtesy to her fellow employees she decided to open the window • The window was high up on the rear wall • The method of opening was a ring on the window pulled by a hook on a stick provided • The stick was too short for her to reach the window • She stood on the WC bowl, fell off and injured herself

11. PUWER – control of offending machineryHyndman -v- Brown and Colin Bradley Ltd (Feb 2012) • C was a farm company • B was an agricultural contractor working for the farm company • H was the contractor’s employee • B’s potato harvesting machine broke down • C lent B his machine which H used • H used it incorrectly and was injured • He claimed damages for from C breach of statutory duty on the basis that: • C was in control of the machine as it was a temporary loan • C had failed to instruct him how to use it.

12. PUWER – hazards covered by regulationsWillcock and others -v- Corus (May 2013) • The claimants were crane drivers with Corus Steel • Over the years they developed serious back pain • They alleged this was due to the position of the controls • Judge held that their claim was valid • Corus appealed on the grounds that PUWER was designed to protect only against dangerous machinery, not against ergonomic factors

13. Negligence – Systems of work Evans -v- Windsor and Maidenhead RBC (Jul 2011) • Driver delivering an MWP to third party premises • Crushed to death between the edge of the platform and some overhead pipe work while reversing • IPAF certificate 5 years old less 2 days • Employer’s sales manager had visited the premises earlier to assess the size of MWP required • Issues: • Was the driver’s training adequate? • Was there any significance in the visit by the manager?

14. Negligence – safe system of workMitchell and ors -v- United Coops (Mar 2012) • The defendant operated a convenience store • The claimants were shop workers at the store • The store was raided by armed robbers • The claimants claimed for post traumatic stress disorder • The basis of the claim was that the defendant had failed to install security screens

15. Negligence – trip hazardPalfrey v WM Morrisons Supermarkets Plc • L-shaped loading trolley being used in supermarket • Claimant was aware of the presence of the trolley but not its side flat-bed design • Claimant stepped on to flat-bed of trolley unintentionally and fell • Issue was whether the widespread use of such trolleys meant that they were not dangerous

16. Negligence – effect of claimant’s negligenceBrumder -v- Aviva Insurance (Mar 2013) • Sole director of company injured at work • Cause of injury was failure to maintain equipment contrary to PUWER • Director sued his own company (and his insurer…) • Judge found the company liable but held the director 100% liable for contributory negligence • Director appealed the contributory negligence finding • Insurer appealed the liability finding

17. Hazardous pursuits – corporate fun daysReynolds -v- Strutt & Parker (Jul 2011) • Corporate fun day • Cycling race • No risk assessment • No helmets required • Two bicycles collided • One rider seriously injured • Injury would not have been serious if he had worn a helmet • Claims for breach of statutory duty and negligence

18. Negligence – corporate fun daysBlair-Ford –v- CRS Adventures Ltd (Aug 2012) • B was a teacher taking part in an adventure activity course • He took part in a “welly wanging” competition • During the course of it he suffered a serious injury and was rendered tetraplegic • The issue was the sufficiency of the risk assessment

19. Hazardous pursuitsPinchbeck -v- Craggy Island (Mar 2012) • The claimant was a pupil at an indoor rock climbing class • She had been climbing a high wall with a harness • The harness was used to slide down to the bottom • At the end of the day she was transferred to a low wall (4m high) with no harness • She was not instructed how to get off the wall • She jumped on to the crash matting and was injured

20. Hazardous pursuitsWilson -v- Clyne Farm Centre (Feb 2013) • Scoutmaster attempting obstacle course at outdoor centre • Weather was wet • Injured on fireman’s pole • Risk assessment identified the risk of injury • Control measure was demonstration of technique by instructor • Instructor did not demonstrate the use of the pole • Issue: did that of itself amount to a breach of duty?

21. Occupiers’ liability – wet floorsHufton -v- Somerset County Council (July 2011) • Claimant pupil slipped and fell on a school hall floor which was slippery due to rainwater • School had a policy of using signs to prevent entry to the hall when it rained • Claimant slipped during the short period between it starting to rain and the signs being produced • Claimant argued that: • The school had a duty to prevent the floor from becoming wet • The school had a duty to clear up water if the floor did become wet

22. Occupiers’ LiabilityRichards v- Bromley LBC (Nov 2012) • Pair of 30 year old swing doors in a school • One of the doors closed as a pupil was walking through it and her heel was cut • No incident had ever been recorded except one 4 months earlier in which a pupil’s heel had been grazed • The earlier incident had been investigated by the school: • It had not been told about the grazed heel • Work to the doors had been scheduled for the holidays • Issue: did the earlier incident mean that the later one was reasonably foreseeable?

23. Occupiers’ Liability – sports pitchesSutton -v- Syston RFC (Oct 2011) • Mixed use sports pitch owned by a rugby club • Had been used a few days previously for cricket practice • Claimant was using it for rugby practice • In diving to score a try, he gashed his knee on a piece of plastic in the ground • The plastic was the broken off stub of a marker used for the cricket practice. • The claimant alleged that the rugby club was liable for having inadequately inspected the pitch

24. Corporate manslaughterLion Steel • This case involved a death resulting from a fall through a skylight • The Company was charged with: • Corporate Manslaughter • Section 2 HSWA • Work at Height Regulations • The directors were charged with: • Manslaughter by gross negligence • Section 2 HSWA

25. Legal Update July 2013 John Mitchell Head of Health and Safety