5 The principal cases
Introduction
The common law is based on cases recorded, in England and Wales, in the Law Reports and All England Reports (AER) and, in Scotland, the Sessions Cases (SC) and Scots Law Times (SLT). It is based on the doctrine of precedent, under which, in the vast majority of cases, a court must follow the earlier decisions of the courts at its own level and of superior courts – known as binding precedent. The doctrine of binding precedent is called stare decisis, which means ‘keep to the decisions of past cases’. Other precedents established are of a persuasive nature, and are not binding. For the doctrine of judicial precedent to operate, it is necessary to know, first, the legal principle involved in a particular judgment (ratio decidendi) and, second, when a decision is binding and when it is persuasive.
The lower courts are bound by the higher courts and superior courts generally follow their own former decisions. In the lower courts, however, judgments are mainly concerned with questions of fact and so are not strict precedents.
The Features of a Judgment
Ratio decidendi
This means ‘the reason for deciding’, and is the legal principle behind a particular judgment, the actual finding on a particular fact. It is a proposition of law that decides the case in the light, or in the context, of the material facts. Whether it is binding will depend on the position in the hierarchy of the court that decided the case and of the court that is currently considering it. Thus, the ratio decidendi of a decision of the House of Lords binds all lower courts, whereas that of a Court of Appeal case binds the Court of Appeal and all the lower courts, but not the House of Lords.
Obiter dicta
These are ‘comments by the way’, such as a reference to what could have happened had the facts been different or a reference to an aspect of law that may not be specifically relevant to the case. Obiter dicta are persuasive, but not binding. However, the obiter dicta can be so persuasive that they may be integrated or incorporated into subsequent judgments and become part of the ratio decidendi.
The Principal Cases
The following cases form the basis for much of the current law on occupational health and safety and for its interpretation in the courts.
Donoghue v. Stevenson (1932) AC 562 – the duty to take reasonable care, or, the neighbour principle
The claimant purchased a bottle of ginger beer that had been manufactured by the defendant. The bottle was of dark glass so that its contents could not have been seen before they were poured out. The bottle was also sealed so that it could not have been tampered with until it reached the ultimate consumer. When the claimant poured out the ginger beer, the remains of a decomposed snail was seen floating in the ginger beer. Not unnaturally, she was taken ill, having already consumed part of the contents of the bottle.
This case established the fact that manufacturers can be liable for negligence if they fail to take reasonable care in the manufacture or preparation of their products. Lord Atkin said ‘a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate inspection, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take reasonable care’.
Lord Atkin’s judgment went further:
You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour, i.e. persons who are so closely and directly affected by your act so that you ought reasonably to have them in contemplating as being so affected …
This has subsequently come to be known as The Neighbour Principle. It means that there must be a close and direct relationship between the defendant and claimant, such as that between employer and worker, occupier and visitor, shopkeeper and customer, and, second, the defendant must be able to foresee a real risk of injury to the claimant if they, the defendant, do not conduct their operations or manage their property with due care.
This case established that manufacturers can be liable for negligence for a defective product if it can be shown that they have failed to take reasonable care in the preparation and marketing of it and that a consumer of the product has suffered injury, damage or loss as a result.
Wilsons & Clyde Coal Co. Ltd v. English (1938) AC57, 2 AER 628 – the duties of employers at common law
At common law, employers owe a general duty towards their employees to take reasonable care so as to avoid injuries, disease and death at work. More specifically, employers must:
• provide a safe place of work with safe means of access to and egress from it
• provide and maintain safe appliances, equipment and plant for doing the work
• provide and maintain a safe system for doing work
• provide competent co-employees to carry out the work.
In this case, Lord Wright said that ‘the whole course of authority consistently recognises a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or company and whether or not the employer takes any share in the conduct of the operations’.
Edwards v. National Coal Board (1949) 1 AER 743 – ‘reasonably practicable’
This case established the legal definition of the term ‘reasonably practicable’, a term that qualifies the duties of employers and others under the HSWA and many regulations. A duty qualified by ‘so far as is reasonably practicable’, as we saw in Chapter 4 implies a lesser level of duty than that qualified by the phrase ‘so far as is practicable’ (see Adsett v. K. & L. Steelfounders and Engineers Ltd).
In this case, Asquith, L.J., said:
“reasonably practicable” is a narrower term than “physically possible”, and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus upon them.
The burden of proof rests with the defendant to prove that the measures required were not ‘reasonably practicable’ in all the circumstances of the case.
Schwalb v. Fass (H) & Son (1946) 175 LT 345 – ‘practicable’ in the light of current knowledge and invention
Where a statutory duty or obligation is qualified solely by the word ‘practicable’, this implies a higher level of duty than one qualified by ‘reasonably practicable’. ‘Practicable’ means something other than physically possible, it means that the measures must be possible in the light of current knowledge and invention.
Paris v. Stepney Borough Council (1951) AC 367 – the duty of care and the standard of care owed to vulnerable persons
This case involved a one-eyed workman employed in vehicle maintenance. The claimant was endeavouring to remove a bolt from the chassis of a vehicle and was using a hammer for this purpose. While hammering, a metal particle hit his good eye, resulting in total blindness. The claimant claimed damages from his employers for negligence on the basis that he had not been supplied with eye protection. The defendants showed in evidence that it was not standard practice to provide eye protection for activities of this nature, at least where employees had two good eyes.
The judge found for the claimant, but the Court of Appeal reversed the decisions on the grounds that the claimant’s disability could be relevant only if it increased the risk, that is, that a one-eyed man was more likely to sustain eye injury than a two-eyed man. Having found that the risk was not increased, they allowed the appeal. However, the House of Lords reversed the decision and ruled that eye protection should have been provided for Mr Paris while undertaking work where there was a risk to his sound eye, even though the risk for a person with two sound eyes was relatively low.
Thus, an employer may owe a higher duty of care to an incapacitated employee than he does to an employee who is fit and has all his faculties.
Latimer v. AEC Ltd (1952) 2 AER 449 – the practicability of precautions and unreasonable precautions
The appellant was a milling machine operator employed by AEC Ltd. An area of a factory was flooded following a heavy storm and part of the floor was contaminated by an oily, slippery film. The floor was treated with sawdust following this event, but, owing to the very large area of floor involved, there was insufficient sawdust to cover the whole floor. The occupier of the factory was held not to be liable to an employee for injury sustained after he slipped on an untreated part of the floor.
It was held by the House of Lords that the respondents were not in breach of their statutory duty under section 25(1) of the Factories Act 1961 (for floors, steps and so on to be kept free of substances likely to cause people to slip and to be properly ‘maintained’). This section referred to the general condition and soundness of construction of the floor, but did not include a ‘transient and exceptional condition’. Second, it was held that the respondents had taken every reasonable step to obviate danger to the appellant and they were not liable for negligence at common law.
In this case, the practicability of the precautions was seen as appropriate in the circumstances. In the Court of Appeal, the point was put by Denning, L. J., thus: ‘It is a matter of balancing the risk against the measures necessary to eliminate it’. In this situation, the cost to the defendant was too great in relation to the degree of harm that could arise.
Adsett v. K & L Steelfounders & Engineers Ltd (1953) 1 AER 97 and 2 AER 320 – the duties of employers with regard to dust and fume control and ‘practicable’ precautions
This case is one of a number of cases concerned with the interpretation of section 63(1) of the FA. This section states that, ‘in every factory in which, in connection with the process carried on, there is given off any dust or fume or other impurity of such a character and to such an extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect persons employed against inhalation of dust or fumes or other impurity and to prevent it accumulating in any workroom and, in particular, where the nature of the process makes it practicable, to provide and maintain exhaust appliances as near as possible to the point of origin of the dust, fume or other impurity, so as to prevent it entering the air of any workroom’.
The various cases have hinged on two conditions of this section, namely:
• ‘dust or fumes or other impurity . . . as to be likely to be injurious or offensive to persons employed’
• ‘any substantial quantity of dust of any kind’.
Where either of these two conditions is fulfilled, the occupier is under a duty to take the practicable measures detailed in the latter part of the section. The meaning of the word ‘practicable’ means more than ‘physically possible’ and imposes a stricter standard than that which is ‘reasonably practicable’. The measures must be possible in the light of current knowledge and invention at the time.
Marshall v. Gotham Co. Ltd (1954) 1 AER 937 – ‘practicable’ and ‘reasonably practicable’
In this case, the two levels of duty, that is those of a ‘practicable’ and ‘reasonably practicable’ nature were compared. In Marshall v. Gotham Co. Ltd, Lord Reid said, ‘If a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable . . . .’
Richard Thomas & Baldwin v. Cummings (1955) AC 321 and 1 AER 285 – ‘in motion’ and ‘in use’ in relation to machinery
This case involved the machinery fencing requirements under the FA and the actual interpretation of machinery ‘in motion or use’. The phrase includes motion or use in the mode or manner in which the machine operated and for the purpose for which it was used, not merely movement of any kind, and does not include movement of the parts by hand in the case of a power-driven machine.
Davie v. New Merton Board Mills and Others (1958) 1 AER 67 – defective work equipment
The claimant was employed by the defendants on a machine and, in the ordinary course of his employment, occasionally had to use a drift, that is a tapered bar about 30 centimetres long. When in use, the drift had to be struck with a hammer. The claimant had obtained a new drift from his employers and, although it appeared to be nearly new, at the second stroke of the hammer, the drift shattered and a piece of metal struck him in the eye, causing him to lose the sight of that eye.
The defendant established that he obtained his supply of drifts from another company who were well-established and reputable suppliers and who had, in turn, obtained them from toolmakers in Sheffield.
It was held that the employers had used reasonable care and skill in providing the tool and were not liable to the claimant for the injury.
Uddin v. Associated Portland Cement Manufacturers Ltd (1965) 1 AER 213 – dangerous machinery, disregard of danger and contributory negligence
The claimant was employed as a machine minder by the defendants in the packing plant in a cement factory. One day, in an attempt to catch a pigeon, he leaned across a revolving shaft in a place in which he was not authorised to be, losing an arm as a result. The shaft was part of some dust extraction equipment. However, his duties were concerned solely with the cement packing plant.
He brought an action for damages against his employer, alleging that the shaft was a dangerous part of machinery that should be fenced in accordance with section 14(1) of the FA 1937.
It was held by the Court of Appeal that the defendants were in breach of their obligations under the above section and that the claimant, who, at the time of the injury,
• was performing an act wholly outside the scope of his employment
• for his own benefit
• at a place to which he knew he was not authorised to go,
was not totally debarred from recovering damages. The responsibility, therefore, was apportioned on the basis of 20 per cent to the defendants and 80 per cent to the claimant.
John Summers & Sons Ltd v. Frost (1955) 1 AER 870 – the absolute duty to ensure secure fencing of machinery, reasonable forseeability and breach of statutory duty
The respondent was employed by the appellants at their steelworks as a maintenance fitter. While grinding a piece of metal on a power-driven grinder, he was injured when his thumb came into contact with the revolving grindstone. The machine was fitted with an efficient guard and the only part of the revolving grindstone exposed was an arc of approximately 18 centimetres long. There was a gap of approximately 1 centimetre between the guard and the grindstone.
It was held by the House of Lords that, as the grindstone was a dangerous part of machinery within section 14(1) of the FA 1937, there was an absolute obligation in that subsection that it should be securely fenced to prevent such injury as is reasonably foreseeable, regardless of whether the operator using the machine is careless or inattentive. In this case, the machine was not ‘securely fenced’ and the appellants were in breach of their statutory duty under the FA, even though the outcome of securely fencing such a machine would render it unusable.
Kilgollan v. Cooke & Co. Ltd (1956) 1 AER 294 – the breach of statutory duty and the ‘double-barrelled’ action
This case also involved the fencing requirements for machinery under the FA 1937. Here, an employee was injured as a result of his employer’s failure to comply with the fencing requirements of the FA.
In this ‘double-barrelled’ action, the employee sued the employer for damages in two specific actions: first, for negligence, and, second, for breach of a statutory duty.
It should be noted that this legal right of an injured party to take a ‘double-barrelled’ action was, to some extent, excluded as a result of section 47 of the HSWA. Thus:
• a breach of any of the general duties in sections 2–8 will not give rise to civil liability
• breach of any duty contained in health and safety regulations made under the HSWA will give rise to civil liability, unless the regulations state otherwise.
Close v. Steel Company of Wales Ltd (1961) 2 AER 953 – the breach of statutory duty
The appellant was operating an electric drilling machine when the drill bit shattered and a piece struck him in the eye. He claimed damages for breach of statutory duty under section 14(1) of the FA. There was no indication that this type of accident had happened previously, although bits had shattered occasionally in the past.
It was held by the House of Lords that:
• the respondents were not in breach of duty under the section because danger from the use of the bit in the drill was not a reasonably foreseeable danger as the section required
• the duty to fence dangerous parts of machinery as required by section 14(1) was a requirement that the dangerous parts be so fenced only so as to prevent the operator’s body coming into contact with the machinery
• the obligation was to fence the machinery in and not to prevent fragments of it, or the material being worked, from flying out of the machine
• if, in a factory, there is a machine that it is known from experience has a tendency to emit parts of the machine itself or of the material being worked, so as to be a danger to the operator, the absence of a guard to protect them may well give the injured person a cause for action at common law.
Dewhurst v. Coventry Corporation (The Times, 22 April 1969) – due diligence under the OSRPA 1963 and cleaning of machinery by young people
A bacon slicer was used by staff at one of Dewhurst’s shops in Coventry. There were only two employees: a manager and a boy aged 16. The machine was manually operated by turning a handle that caused the cutting blade to rotate. The blade was guarded when in use and had to be removed in order to clean the machine properly.
It transpired that there were two ways of cleaning the blade, either by:
• removing the blade from the machine and wiping it
• by cleaning it in position by drawing a cloth across half the blade and then turning the handle to expose the other half and wiping it.
No locking device was fitted to prevent the blade turning. When the boy was first employed, he was instructed to use the second of these two methods, but not to turn the handle after getting the blade into position for cleaning.
The boy was, on one occasion, told to clean the machine. He removed the gate holding the bacon and the guard to the blade. While cleaning the blade, he turned the handle and the blade rotated, cutting the tip off his left index finger. He had used this method on several occasions previously as it was quicker than the first method, but not in the presence of his manager.
The company was prosecuted and convicted for a breach of section 18(1) of the OSRPA, which requires that ‘no young person employed to work in premises to which this Act applies shall clean any machinery used as, or forming part of the equipment of the premises if doing so exposes him to risk of injury from a moving part of that or any adjacent machinery’.
Dewhurst appealed to the Divisional Court of the Queen’s Bench, but the appeal was dismissed on the basis that section 18(1) of the Act imposed an absolute prohibition, subject to the defence in section 67, which provided that there was no liability if all due diligence had been used to prevent this event. The only escape from liability was to show that no reasonable care could have prevented the injury and the company had failed in their duty because they must have foreseen that, using their method, it was intended that the handle should be used and was used, at a time, when, clearly, the boy was near the blade.
Lister v. Romford Ice & Cold Storage Ltd (1957) 1 AER 125 – vicarious liability, the duty to non-employees and breach of contract
This case involved a lorry driver, employed by the defendants, who negligently reversed the company’s vehicle into another employee (actually his father). This employee was awarded damages to be paid by the company under the doctrine of vicarious liability. The defendants held insurance cover for this form of liability and the insurance company paid the damages. The insurance company subsequently sued the lorry driver in the name of the company to recover what they had paid out.
It was held unanimously in the House of Lords that the lorry driver, as a servant of the company, owed them a duty to perform his tasks with reasonable care and skill, and that a servant who involves his master in vicarious liability by reason of negligence is liable in damages to the master for breach of contract. The damages in such a case amount to a complete indemnity with regard to the amount that the employer has been held vicariously liable to pay the injured claimant.
White v. Pressed Steel Fisher Ltd (1980) IRLR 176 – the training of trade union safety representatives
Under section 2(2)(c) of the HSWA, an employer must provide information, instruction and training for their employees. This case drew the distinction, however, between the health and safety training that an employer must provide, so far as is reasonably practicable, for all their employees, which includes trade union-appointed safety representatives, and the specialist training required for a safety representative in trade union aspects of their work as a representative of the union’s members.
Thus, the training of safety representatives must be viewed by employers as being different to that required for other trade union officials who, by virtue of section 27 of the EPCA, must be approved by the TUC.
Thompson, Gray, Nicholson v. Smiths Ship Repairers (North Shields) Ltd (1984) IRLR 93–116 – occupational deafness and the apportionment of liability
This was one of several cases involving a claim for occupational deafness by an employee who had been exposed to noise in a number of former employments. Former cases had established the view that the last employer was specifically liable for damages. However, it was recognised that much occupational deafness occurs during the early years of exposure, and that previous employers could have been subject to a similar claim.
The outcome of this case is the tendency of the courts to apportion liability between the various employers, all of whom, through exposing the individual to various levels of noise, have contributed to the hearing loss and subsequent occupational deafness.
R. v. Swan Hunter Shipbuilders Ltd (1982) 1 AER 264 – the provision of safety instructions to both employees and non-employees
This case was brought by the HSE following the deaths of eight workmen on board HMS Glasgow in 1976, which was being fitted out in Swan Hunter’s shipyard in Newcastle-upon-Tyne at that time.
Oxygen had leaked for several hours from a hose on a higher deck that passed down through a hatch and a cable duct into a compartment on the lowest deck. The last known user of the oxygen hose most likely to have been the source of the leak was an employee of Telemeter Installations, a firm of subcontractors.
The fire burned extremely rapidly and fiercely because the original flame was ignited in a confined space in an atmosphere heavily enriched with oxygen. Minutes before, four workers had tried to smoke cigarettes, but had found that these had rapidly burned away as soon as they were lit, a classic indication of oxygen enrichment.
Swan Hunter Shipbuilders Ltd were charged with the following breaches of the HSWA:
• under section 2(2)(a), the failure to provide and maintain a safe system of work
• under section 2(2)(c), the failure to provide information and instruction for their own employees
• under section 3(1), the failure to conduct their undertaking in such a way as to ensure that those not in their employ were not exposed to risks.
Swan Hunter submitted that it was not their responsibility to inform and instruct employees working on the ship who were not their own employees. It was this last submission that the trial judge turned down and whose decision the Court of Appeal agreed with.
Lord Justice Dunn said that Swan Hunter’s had a strict duty ‘to ensure, so far as was reasonably practicable’, the health, safety and welfare of all their employees. If the provision of a safe system of work for the benefit of an employer’s own employees involves informing and instructing those other than their own employees concerning the potential dangers, then the employer is under a duty to provide such information and instruction. Only if this was outside the bounds of reasonable practicability could there be any answer to a charge.
This case fundamentally emphasises the duty of an employer to train others. In this case, it included a duty to provide subcontractors’ employees with information about the dangers of oxygen enrichment in confined spaces and such instruction as was necessary to ensure the safety of all the workers on the vessel.
The outcome of this case was that the subcontractors, Telemeters Ltd, was fined £15,000 and the main contractor, Swan Hunter Ltd, £3000.
British Railways Board v. Herrington (1972) AC 877 – injuries to trespassing children
In this case, the House of Lords adopted a more humane approach and softened its ruling, dating back to 1929, that an occupier owed virtually no duty of care to a trespasser even when that person was a child. The reason was based on a change in the climate of opinion as to the acceptable distribution of risks between occupiers and those injured on their premises.
Thus, an occupier may even owe a duty to trespassers in certain circumstances and must act with humane consideration. Public bodies, of course, take out public liability insurance to cover these types of claim.
Ebbs v. James Whitson & Co. Ltd (1952) 2 AER 192 – dermatitis from wood dust
The claimant was employed by the defendants as a coach builder. His job involved him in scraping and sanding monsonia wood, a species of West African walnut. The claimant contracted dermatitis as a result of exposure to the wood dust and claimed damages for breach of statutory duty under section 4(1) and section 47(1) of the FA 1937 (now sections 4 and 63 of the FA 1961).
It was held by the Court of Appeal that:
• there had been no breach of section 4(1) as this section related only to ventilation, not to other methods of rendering dust harmless
• the dust was not of such a character and given off to such an extent as to be injurious or offensive to those employed and, accordingly, there had been no breach of section 47(1) either.
Smith v. Baker & Sons (1891) AC 305 – volenti non fit injuria
In this case a worker who was involved in drilling stone in the course of his employment was injured by a stone which fell from a crane. The employer submitted the defence that the worker had voluntarily assumed this risk as a part of his normal work activities and that he was not liable. The House of Lords found that the employer had been liable on the basis that employees should not be put at risk as a result of prevailing work operations and should be entitled to protection against the risk of death and injury at work.
McWilliams (or Cummings) v. Sir William Arrol & Co. Ltd (1962) 1 AER 623 – breach of statutory duty; chain of causation
In this case the widow of a steel erector who had been killed by a fall in a shipbuilding yard sued, inter alia, the occupiers of the yard alleging a breach of section 26(2) of the Factories Act 1937 in that they had failed to provide the deceased with a safety belt. The occupiers admitted that no safety belt had been provided, but contended that, since there was evidence that the deceased would not have worn a safety belt had one been provided, their failure to provide the belt was not the cause of his death.
This view was upheld by the House of Lords where Lord Kilmuir stated that there were four steps of causation, namely:
• a duty to supply a safety belt
• a breach
• that if there had been a safety belt the deceased would have used it
• that if there had been a safety belt the deceased would not have been killed.
If the irresistible inference was that the deceased would not have worn a safety belt had it been provided, the first two steps in the chain of causation ceased to operate.
Rylands v. Fletcher (1868) LR 3 HL 330 – strict liability; liability without proof of negligence
There are three cases where the common law recognises an absolute or strict liability, namely:
• for the escape of fire from a defendant’s premises
• for injuries caused by wild animals or ferocious domestic animals
• for damage caused by the escape of things that the defendant has brought on to his land, which are likely to do mischief if they escape, either by reason of their inherent nature or because they have been accumulated in quantity.
All three liabilities depend upon the ‘escape’ of something, i.e. fire, animal or dangerous substance or accumulation, from the premises where it is kept. Lord Porter said that the ‘escape’ which is necessary under the principle of Rylands v. Fletcher ‘must be escape from a place over which a defendant has some measure of control to a place where he does not’.
Here the defendant employed an independent contractor to construct a reservoir on his land. The contractor was deemed to be competent and used competent workmen. After completion, water seeped from the reservoir and eventually flooded the claimant’s mine. It was held that, though the defendant was not personally negligent, he was liable for the negligence of the contractors.
Where fire spreads and causes damage liability is strict. In high risk situations where fire may be caused by, for instance, the storage of petrol, or where activities undertaken on land could lead to explosion with the resulting potential for injury and/or damage, there is a duty on the occupier to take such measures to contain the risk and prevent its ‘escape’ from the premises.
In the course of judgment the House of Lords laid down the following rule:
Where a person for his own purposes brings and keeps on land in his occupation anything likely to do mischief if it escapes, he must keep it in at his peril, and if he fails to do so he is liable for all damage naturally accruing from the escape.
Corn v. Weir’s Glass (Hanley) Ltd (1960) 2 AER 300 – negligence; breach of duty of care
Mr Corn, a glazier, was carrying a large sheet of glass which necessitated use of both hands to hold same. Whilst ascending a staircase, he overbalanced and fell, causing serious injury. No handrail was provided to the staircase contrary to the requirements of the former Building (Health, Safety and Welfare) Regulations 1948.
His claim failed due to the fact that he was using both hands to carry the glass and, in any case, would not have been able to make use of a handrail.
In this case a distinction was made between a handrail and a guard rail.
A guard rail is one of such a character as will provide a physical barrier against a person falling over the side which is guarded. A handrail is a rail that can be gripped by the hand; it need not necessarily act as a physical barrier; it need only be such a rail as to enable any person, by gripping it, to steady himself against falling. This regulation does not require the handrail prescribed to be fixed on the open side of the stairs, and it may, in suitable cases, be fixed on the wall side, or in the middle.
Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd (1974) ACI – temporary employment
Here a skilled crane driver was hired out by the Mersey Docks and Harbour Board to a firm of stevedores. Whilst working for the firm of stevedores he was injured. His employers were found to be in breach of their duties as employers on the basis that, whilst he had been hired out to another employer, control over the job he performed as a crane driver rested with his permanent employers.
Thus the test of whether an employee has been temporarily employed by another employer is that of the control influenced by that temporary employer in the employee’s working practice.
Rose v. Plenty (1976) 1 AER 97 – vicarious liability; unofficial employment of children
A practice employed by milk roundsmen in the past was to unofficially employ children to assist in the delivery of milk to houses. In this case a boy was injured on a milk float in circumstances where the driver, an employee of a dairy company, had actually been forbidden to ‘employ’ children to deliver milk and collect empty milk bottles.
In this case the milk roundsman’s employers were deemed to be vicariously liable for the action of their employees, even though such persons had been expressly forbidden to engage in such practices.
Armour v. Skeen (1977) IRLR 310 – corporate liability
This case involved section 37 of the HSWA in terms of the duties of directors and others. In this case a council employee fell to his death from scaffolding.
It was held that the regional council’s Director of Roads came within the ambit of section 37.
Tesco Supermarkets Ltd v. Nattrass (1971) 2 AER 127 – offences due to the act of another person; due diligence
In this case, taken under the Trade Descriptions Act 1968, an offence was committed due to the neglect of a store manager. The company submitted the defence of all due diligence, based on the wording of the defence in the Act, thus:
In any proceedings for an offence under this Act it shall, . . . be a defence for the person charged to prove:
(a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and
(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or by any person under his control.
It was decided that the store manager was ‘another person’ and that as the company had taken all reasonable precautions and exercised all due diligence to avoid the offence being committed, the actions of its employee in failing to follow instructions did not mean that the company could not rely on the defence.
R. v. Associated Octel Ltd (1996) 1 WLR 1543, 4AER – breach of duties under sections 2 and 3 of HSWA
Associated Octel Ltd, a chemicals manufacturer with its major manufacturing site at Ellesmere Port, suffered a major chemical release and fire which threatened not only employees but members of the emergency services. Because of the large inventories of chemicals held on site, the company was subject to the Control of Industrial Major Accident Hazard Regulations (CIMAH) which regulated activities on major hazard sites.
The HSE report of their investigation into this major chemical release and fire concluded that the incident might have been prevented if a more detailed assessment of the hazards and risks at the plant had been carried out by the company beforehand. The cause of the incident was a faulty pump connection to a reactor vessel.
The incident occurred on the evening of 1 February 1994 when there was a release of reactor solution from a circulating pump at the factory. The solution was highly flammable, corrosive and toxic and, in spite of the efforts of emergency services, a major fire occurred.
Associated Octel was prosecuted by the HSE in Chester Crown Court on 2 February 1996 for failing to comply with its duties under sections 2 and 3 of the Health and Safety at Work Act 1974, to ensure the safety of employees and others, such as fire-fighters. The company was fined a total of £150,000.
Although no serious injuries, ill-health or environmental effects resulted from the release of reactor solution and the fire, this was classed by the HSE as a serious incident at a major hazards site.
When the incident occurred a dense white cloud of flammable and toxic gas was released which enveloped the plant and began to move off-site. The on-site and emergency services tried an hour and a half to isolate the leak, suppress the further release of vapour and stop the cloud spreading. In spite of their efforts, however, a pool of liquid continued to collect and the flammable vapours of ethyl chloride ignited. This caused a major fire which was most intense at the base of the reactor.
Ethyl chloride is a highly flammable liquefied gas. The release also contained hydrogen chloride which is toxic and corrosive. Hydrogen chloride was also a significant combustion product during the fire.
As the fire developed there were jet flames at the top of two large process vessels on the plant and, although they and the reactor were protected by a fire resistant coating, there was concern at one stage that the vessel might explode.
Conclusions arising from the enquiry were that the release arose from a pump connection where a corroded securing flange on the pump had worked loose or a flexible joint had failed. The company inspection and maintenance procedures were found to be inadequate and although there were many measures to limit the size and effect of the release, these were not fully satisfactory because the assessment of risks was insufficient.
In particular, the assessment did not identify the risk of substantial leaks from some pumps and pipework and the need, therefore, to provide emergency shut off valves to isolate such leaks.
The plant itself was extensively damaged requiring a complete rebuild. Investigation of the immediate technical cause of the leak was hampered because plant and equipment had been subject to an intense fire and some critical components destroyed.
There were a number of important lessons to be learned from this incident, in particular the need for companies to:
• periodically review the risks posed by their plants
• choose the most appropriate techniques for assessment
• take into account the current state of scientific and technical knowledge.
The principal recommendations arising from the investigation were as follows.
1. Risk assessment
Chemical companies should make a thorough and detailed assessment of risks to prevent the loss of dangerous chemicals. This assessment should be routinely reviewed and kept up to date using the latest techniques.
2. Maintenance
A good system of inspection, examination and maintenance of plant and equipment is essential. This should include the keeping of formal records of plant history and take into account the consequences of failure as well as known reliability.
3. Mitigation measures
To limit the size and effects of any release, chemical companies should critically review whether remotely operated valves are required as part of their emergency shutdown arrangements. The HSE is to consider what guidance is required for the provision of remotely operated valves and the use of thermal insulation cladding on vessels.
Companies and fire brigades should give particular attention, beforehand, to arrangements for ensuring there is clear communication about risks between staff at all levels during an emergency.
Alsop v Sheffield City Council (2002) CA – manual handling risk assessment
The claimant refuse collector was moving a wheelie bin up a steep ramp. Whilst doing so, he slipped and fell, suffering injury. In this case he had chosen to pull the bin up the ramp and did not use some adjacent steps to go to the end of the ramp which was only a short distance away. The judge initially dismissed the claim as did the Court of Appeal.
The case was based on the fact that the defendants had failed to give sufficient instruction to the claimant on how to manoeuvre the bins when confronted with this sort of situation. Moreover, the local authority had failed to undertake a risk assessment under regulation 4(1) of the Manual Handling Operations Regulations 1992.
Lord Justice Mantell adopted the approach of Lady Justice Hale in Koonjul v. Thames Link Health Services [2000] PIQR 123 and her ‘element of realism’ in considering risk assessment. He found that, if a risk assessment had been undertaken, the defendants would have simply informed their refuse to ‘use their common sense’ when moving the bins. Lord Justice Kennedy found that the employer is entitled to have regard to the ‘experience of the employee said to be at risk’.
However, the regulations are clear that a risk assessment shall be undertaken. The principle of ‘reasonable practicability’ only applies in relation to avoiding the need to undertake manual handling operations. This was clearly set out in Swain v. Denso Marston [2000] CA. In the Koonjul case, Lady Justice Hale adopted a non-European approach to risk assessment and applied the common law approach, first stated by Sir Christopher Staughton in Hawkes v. London Borough of Southwark [1998] (unreported), that the requirement to carry out a risk assessment is ‘merely an exhortation with no sanction attached’.
This ‘realism’ test, therefore, may be used to defeat claims on the basis that even if a risk assessment has been undertaken, it would not have had an effect on the cause of the accident. On this basis, the burden of proof would appear to shift from the employer to the claimant to prove that the task he was undertaking was not an everyday task or routine and that he suffered injury as a result.
Stress at Work Cases
The question of stress at work has achieved considerable significance in the civil courts in the last decade.
In 2002, after hearing four appeal cases, namely:
• Terence Sutherland (Chairman of the Governors of St Thomas Becket RC High School) v. Penelope Hatton
• Somerset County Council v. Leon Alan Barber
• Sandwell Metropolitan Borough Council v. Olwen Jones
• Baker Refractories Ltd v. Melvyn Edward Bishop
Lady Justice Hale, sitting with Lords Justice Brooke and Kay, outlined a number of ‘practical propositions’ to assist courts in dealing with future claims for psychiatric injury arising from stress at work.
Practical propositions
1. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employers’ liability apply.
2. The threshold question is whether this kind of harm to an employee was reasonably foreseeable. This has two components:
(a) an injury to health (as distinct from occupational stress); and
(b) which is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about an employee. Because of the nature of a mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless they know of some particular problem or vulnerability.
4. The test is the same whatever the employment. There are no occupations that should be regarded as intrinsically dangerous to mental health.
5. Factors likely to be relevant in answering the threshold question include:
(a) The nature and extent of the work done by the employee
Is the workload much more than is normal for the particular job?
Is the work particularly intellectually or emotionally demanding for this employee?
Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?
Or are there signs that others doing this job are suffering harmful levels of stress?
Is there an abnormal level of sickness or absenteeism in the same job or in the same department?
(b) Signs from the employee of impending harm to health
Have they a particular problem or vulnerability?
Have they already suffered from illness attributable to stress at work?
Have there recently been frequent or prolonged absences which are uncharacteristic?
Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from them or others?
6. The employer is generally entitled to take what they are told by their employee at face value, unless they have good reason to think to the contrary. They do not generally have to make searching enquiries of the employee or seek permission to make further enquiries of their medical advisers.
7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that they should do something about it.
8. The employer is only in breach of duty if they have failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justification for running the risk.
9. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
10. An employer can only reasonably be expected to take steps that are likely to do some good. The court is likely to need expert evidence on this.
11. An employer who offers a confidential counselling service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of its duty in allowing a willing employee to continue in the job.
13. In all cases it is necessary to identify the steps that the employer both could and should have taken before finding them in breach of their duty of care.
14. The claimant must show that the breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to their wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.
Conclusion
Case law is an important source of law and goes back hundreds of years. It contains the principles and rules of common law based on the decisions of courts and reported in the various law reports. As such, common law is accumulated case law and supported by the doctrine of precedent.
In many cases, the decisions of courts based on the common law are written into statutes, to become the written law of the land.