06 January 2008
Lawrence Bamber

This is the third in an occasional series looking at the classic case law in Unit A8: Criminal Law and Unit A9: Civil Law of the NEBOSH Diploma. Here, we are looking at cases that have set the scene for existing and future legislation and judicial precedents in the area of health and safety (mis)management.

The cases cover:

• managers' liability under the Health and Safety at Work (HSW) Act
• provision of adequate equipment to control risk
• the balance of cost and risk in deciding reasonable practicability
• employers' responsibility for controlling risks posed by co-workers' behaviour
• the definition of work equipment.

As the Corporate Manslaughter and Corporate Homicide Act 2007 is now on the statute books, it will be interesting to see if any of the previous cases feature in any prosecutions under this Act.

But as there is no chance of individuals (as opposed to organisations) being charged under Act, prosecutors will still have to resort to using Section 37 of the Health and Safety at Work (HSW) Act.

Section 37 provides that where an offence has been committed by an organisation and is proved to have been committed with the consent (turning a blind eye) or connivance (between two or more persons), or to have been attributable to any neglect (by one or more persons) on the part of any director, manager or secretary (that is, persons in charge/in control of the organisation, known as the "controlling mind") then they shall be guilty of that offence as the organisation and can be prosecuted.

Armour v Skeen (1977)

This landmark case marked the first time an individual had been prosecuted under the HSW Act.

An employee fell to his death while repairing a road bridge over the River Clyde. Strathclyde Regional Council and its director of roads, Mr Armour, were both prosecuted.

The court held that Armour had a duty to supervise the health and safety of the council's workmen. He had not prepared a written health and safety policy for road work, despite a written request that he do so, and was subsequently found to have breached Section 37(1) of the HSW Act.

Armour claimed in his defence that he did not have a personal duty to carry out the council's statutory obligations, one of which was to develop and issue a health and safety policy for the Roads Department. Armour was convicted as charged. The conviction went to appeal and was upheld.

Bradford v Robinson Rentals Ltd (1967)

This civil law case related to the employer's duty to provide equipment adequate for the degree of risk posed by a particular work activity.

Mr Bradford was a radio service engineer who worked for Robinson Rentals. He was sent out to exchange an old van for a new vehicle; this required a 720km round trip. But on the day in question, traffic reports on the radio highlighted bad weather and motoring organisations were advising drivers only to make journeys that were absolutely necessary.

As neither of the vans had a heater, Bradford asked his employers to postpone the journey until weather conditions improved. They refused and he was told to make the trip. Due to the severe cold, he suffered frostbite and subsequently claimed damages against the company.

Though frostbite is extremely rare in the UK, the court decided that some injury was foreseeable due to the extreme cold of the 1966 winter. The employer had been informed of the adverse weather conditions and was aware that the vans had no heaters.

The court held that the employer was in breach of its duty to provide necessary equipment - van heaters or cold weather protective equipment - and should have either ensured its employee was protected against the cold or should not have sent him out into an adverse working environment. Bradford was successful in his claim and was awarded damages.

Edwards v National Coal Board (1949)

This case concerns the balance of cost and risk, the basis for deciding what is reasonably practicable or not.

Mr Edwards was killed when a section of underground roadway in a mine collapsed onto him while he was walking along it. The National Coal Board (NCB) held that the cost of shoring up the roadway would have been prohibitive and was therefore not justified.

The plaintiff was Edwards' widow. The case ended up in the Court of Appeal, which had to consider whether or not the NCB had discharged its duties under the Coal Mines Act 1911.

The quantum of risk test is a balancing act, with the degree of risk being placed on one side of the scales and the sacrifice involved in the control measures needed to avert the risk - that is, time, money and trouble - placed on the other side.

If it can be shown that there is a gross disproportion between them -  that the risk is insignificant in relation to the sacrifice - then, and only then, will the defendants (in this case, the NCB) have discharged the duties imposed on them.

The Court of Appeal found for the widow, considering that the defendants had failed to establish their defence, as the risk far outweighed the sacrifice.

Hudson v Ridge Manufacturing Co Ltd (1957)

This case relates to practical jokes and horseplay in the workplace and examines the employer's duty to provide competent fellow employees. Hudson was employed by Ridge Manufacturing (RMC). During the course of his employment, he was injured as a result of a practical joke played on him by a fellow employee.

The evidence showed that Hudson's colleague had been in the habit of indulging in dangerous horseplay for the previous four years and had been warned about his unacceptable behaviour by his employer on several occasions.

The court held that the employer was liable to Hudson for his injuries on the basis that it had failed to curb the co-worker's horseplay even though, in one case, another employee had suffered a broken wrist after being pulled back around the neck by the co-worker, causing the employee to fall onto his wrist.

Giving judgment, the court held: "If a fellow workman by his habitual conduct is likely to prove a source of danger to his fellow employees, a duty lies fairly and squarely on the employers to remove the source of danger."

One of the reasons the employer was held to be liable in this case was that they knew - or ought reasonably to have known - such incidents were happening regularly in the workplace, especially when there was evidence of several previous warnings to the rogue employee about his unacceptable behaviour over four years.

Knowles v Liverpool County Council (1993)

This case provides a definition for what constitutes "equipment" in the workplace, and extends the Employers' Liability (Defective Equipment) Act 1969 to cover materials used at work.

The case ended up in the House of Lords, where the law lords held that equipment covered every article of whatsoever kind furnished by the employer for the purposes of its business. In this case, the Lords held that even a flagstone was a piece of work equipment.

Mr Knowles was repairing a pavement for Liverpool County Council. One of the flagstones he was handling was "green" (uncured) as a result of a defect in the manufacturing process. This faulty flagstone broke during handling, causing injury to Knowles' finger. Liverpool County Council was held liable for his injury.

The House of Lords had to consider whether the flagstone was equipment under the scope of the Employers' Liability (Defective Equipment) Act 1969.

Lord Jauncey of Tullichettle stated: "The facts are simple. The respondent (Knowles) was employed by the appellants (Liverpool County Council) as a labourer flagger repairing a pavement in a Liverpool street. While he was manhandling a flagstone into the shovel of a JCB, the corner of the flagstone broke off, causing the stone to drop with consequent injury to the respondent's finger. The breakage occurred because the manufacturers - who were not the appellants - had failed to cure it properly. This defect could not reasonably have been discovered before the accident."

He continued: "the equipment - ie the flagstone - had been provided for the purposes of the employer's business, and not merely for the use of the employee. Thus a piece of defective equipment which causes injury to a workman would fall within the ambit of the subsection [of the Act]."

He concluded that "In this case, the flagstone had undoubtedly been provided by the appellants for the purposes of their business of repairing and relaying the pavement.

"In my view, the only reasonable conclusion is that Parliament intended the Act to provide a remedy in the situations where an employer had provided, for the purposes of his business, an article which was defective and caused injury to a workman, but where the employer was not in breach of a common law duty of care owed to that workman."

The Lords denied Liverpool County Council's appeal and upheld the original decision in favour of Knowles' claim.

Machray v Stewart and Lloyds Ltd (1964)

This case clarifies the need for the employer to provide sufficient plant and equipment.

Mr Machray was employed as a rigger and, on the day of the accident, was working 21m above ground level. A piece of pipework weighing 500kg had to be fixed into position. Normally a crane would be used, but this was not available. Machray decided to use two sets of chain blocks and tackle but was only able to locate one on site.

As Machray was aware that the job was urgent, and was under pressure from site supervision to complete the job, he used a single chain block and tackle to do the job that normally required two sets.

During the lift, the pipe swung out of control and hit Machray, causing injury.
Machray sued his employer for common law negligence as a result of the company's failure to provide suitable work equipment.

The company was held liable as it was its duty to take reasonable steps to prevent injury to employees by providing suitable plant and equipment so as to enable the job to be done without the risk of injury.

The company argued that Machray had been contributorily negligent but this was completely rejected as Machray had been prevented from using the agreed safe system of work for the job, as only one set of chain block and tackle was available and he was being put under pressure by site supervision.

The court held that, though the method chosen by Machray was clearly less safe than if he had used two sets of chain, blocks and tackle, he was not guilty of contributory negligence.

During the course of his judgment, the judge explained the law as follows: "When I find a workman ... adopting a course of conduct not for the sake of saving himself trouble, but to get on with his employer's business, and when I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer's breach in not providing him with proper tackle, I am very slow to put any blame on him."

Machray was successful in his claim for damages against the company.
All of the above cases have set precedents which have been subsequently used and cited in other civil and criminal cases, so NEBOSH students need to know them and to be able to refer to them by name and outcome when answering relevant diploma questions, especially in Unit A: Managing Health and Safety.

This article was prepared on behalf of the National Examination Board in Occupational Safety and Health (NEBOSH) by Lawrence Bamber, BSc, DIS, CFIOSH, FIRM, MASSE

Categories:
Training, Professional Skills, Article, Enforcement (prosecutions), Training, Enforcement (prosecutions)