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Injury Law - How strict is strict?

By : Emily Formby

Emily Formby looks at recent cases on an employer’s strict liability.

One may be forgiven for thinking that the higher Courts have adopted an Alice in Wonderland quadrille approach to strict liability in the last few months – not strict, strict then not strict again is the message on first read. However, a closer look at the trio of cases, Fytche v Wincanton Logistics [2004] UKHL 31; Ball v Street [2005] EWCA Civ 76; and Lewis v Avidan Limited [2005] EWCA Civ 670 shows a consistency of approach and depth of analysis that may surprise.

The Court of Appeal has twice considered strict liability in employers’ regulations since the House of Lords majority decision of Fytche v Wincanton Logistics [2004] UKHL 31 last year. In that case an employee developed frost bite in his toe while digging his way through snow. The steel capped boots he had been given by his employer, as part of his personal protective equipment, had a hole in them. The snow and cold therefore got in, and his toe got frostbite.

The House of Lords considered Regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992. This regulation states that, “Every employer shall ensure that any personal protective equipment provided to his employees is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”

One may think the use of “shall” would be sufficient to impose a strict liability upon the employer. Certainly it seems to follow the wording of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 which states that, “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”. That wording was sufficient for the Court of Appeal in Stark v Post Office [2000] ICR 1013 to hold that the PUWER wording imposed a strict liability on the Post Office when their employee suffered injury when he had an accident caused by a defect in his bike. This liability was imposed even though a rigorous examination of the bike would not have revealed the defect.

But the House of Lords did not find for Mr Fytche. The majority decided that the strict liability had to be construed with regard to the specific risks against which the protective equipment was intended to guard in the first place. So, in Mr Fytche’s case, the boots provided were steel toed. The risk they were to guard against was that of dropping something heavy on the foot. Not the risk of getting wet and cold in the snow.

According to the House of Lords, stage one in the process was assessing the risk. Stage two was ensuring the protective equipment was suitable to guard against that risk (Regulation 4(1)). Consideration must be had to Regulation 4(3) – pre-requisites for any assessment of suitability.

Therefore, the House of Lords looked at the strict liability of Regulation 7(1) in the context of the risk against which the equipment was provided to guard. The strict liability was accordingly qualified by purpose.

It should be noted, and this may make the decision of the Court of Appeal less surprising, that the House of Lords decision was a 3:2 majority. Even within that majority Lord Walker dismissed the Claimant’s appeal with “rather more hesitation” that the other two Lords.

The dissenting Lords (Lord Hope and Baroness Hale) placed emphasis on the need, at Regulation 4(3)(a) to consider, “... the conditions at the place where exposure to the risk may occur” and the slightly wider analysis of whether protective equipment is suitable set out in Regulation 6(2), “The assessment required by paragraph (1) shall include – (a) an assessment of any risk or risks to health or safety which have not been avoided by other means…” It is arguable that the place of exposure could include a wet or snowy location and the risk one of frostbite not avoided by other means. However, their Lordships stood by a connection between strict liability for provision of equipment being related to the risk the employer assessed it necessary for an employee to be protected from.

In the first of the two Court of Appeal cases, Ball v Street [2005] EWCA Civ 76, Mr Ball lost the sight in his left eye when he was struck in the eye by a spring which fractured during the use of a haybob. Mr Ball was using the machine quite correctly. The part fractured during use. While there was evidence that the shaft coil springs quite commonly fractured, it was confirmed this fracture could occur during perfectly normal working operation. The Judge at first instance held that the fractured spring had shot towards the ground, ricocheted upwards from a tyre and entered the Claimant’s eye. It was, he said, an unforeseeable freak accident.

Not so, said the Court of Appeal. In the leading judgment Lord Justice Potter said, “in this context, namely the known likelihood of fracture of a powerful spring from time to time in course of operation, I would hold that the risk of injury to someone in close proximity at the time of such fracture, in relation to which there would be no warning or prior indication of wear, and in respect of which no protective safety casing was present on the machine, was reasonably foreseeable …”

Of greater significance, the Court of Appeal rejected the first instance judge’s adoption of the Fytche type reasoning that the assessment of breach of the duty to maintain in efficient working order relied on an assessment of suitability as work equipment. The spring that broke on the haybob did not disable the machine, it simply prevented one pair out of eight pairs of tines working. The machine could still be used. The machine was capable of working, in the Recorder’s view, in “… an overall effective and efficient manner”. Therefore, liability was not established.

Lord Justice Potter, however, distinguished the purposive assessment in Fytche. The duty on employers when providing machinery was somewhat differently defined. Long before the European Regulations, the Factories Act 1937 at s152(1) was held by the House of Lords in Galashiels Gas Co Ltd v Millar [1949] AC 275 to impose an absolute obligation to maintain work equipment in an efficient state or in efficient working order.

Regulation 6(1) of the Provision and Use of Work Equipment Regulation 1992 imposed a strict duty on the Post Office in the case of Stark (see above). While both cases were referred to in argument before the House of Lords in Fytche their Lordships did not overrule them. Therefore, Mr Ball’s case followed the previous line of authority, not the Fytche decision, insofar as the two were not inconsistent in reasoning.

The wording of Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 – the relevant regulation for Mr Ball, states that, “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.” That the haybob may continue to work with one of its eight pairs of tines broken did not mean that it remained in an efficient state. Efficiency was not defined by purpose, by economic activity and productivity. There is no provision for defining the employer’s duty in terms of overall suitability of equipment to perform a task. Rather it is an absolute obligation on an employer providing any employee with machinery to ensure that all of the mechanical parts are in good repair and efficient state and working order so as to prevent injury to the person using the equipment.

A spring shooting out of a machine without warning carries a foreseeable risk of injury. As soon as that spring has broken, whether it could have been discovered or known about in advance or not, the machine is not longer in good repair and efficient state, and the obligation of the Regulation bites.

The distinction between the provision of protective equipment and work equipment is that the former is provided to protect against a particular risk or hazard which has been specifically identified and which cannot be controlled by other means. The PUWER regulations deal with general considerations of health and safety in the broad sense – the risk of accidental injury inherent in the use of machinery not in good repair.

While perhaps a fine distinction, this reasoning is at least clear and the Court of Appeal has maintained the strict liability for employer provision of machinery which has been in place since at least 1937.

The second Court of Appeal decision, that of Lewis v Avidan Ltd [2005] EWCA Civ 670 concerned the Workplace (Health, Safety and Welfare) Regulations 1992. Mrs Lewis worked as a care assistant in High Meadow Nursing Home. As she neared the end of a night shift she slipped on water which had flooded a linoleum floor. The water came from a pipe which had unexpectedly burst shortly before the accident. Nobody knew of the burst until it was found by the claimant. The claim could not succeed on Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 since it was accepted that the Defendant had discharged that duty defined as, “so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from …. Substance which may cause a person to slip…”

However, argument centred around the strict liability of Regulation 5, “(1) The workplace and the equipment, devices and system to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair”.

Surely, argued the Claimant, this wording follows the wording in regulation 5 of PUWER and Mrs Lewis’ claim should succeed following the line of Galashiels, Stark and Ball?

Not so said the Court of Appeal. The pipe was not within the workplace, as defined by the regulation 2. Therefore, since the enclosed pipe was not part of the premises there could be no breach of regulation 5(1) due to a failure to maintain the workplace.

Could the pipe, however, be defined as equipment, a device or system? Pursuant to regulation 5(3), “The equipment, devices and systems to which the regulation applies are – (a) equipment and devices a fault in which is liable to result in a failure to comply with any of these regulations” While the fault in the pipe would render the floor wet, this alone is not sufficient to lead to breach of regulation 12(3). The regulation is breached by a failure to take reasonably practicable steps to stop the substance being or remaining on the floor. It is concerned with cleaning practice, inspection and general maintenance. Therefore, while the burst pipe would make the floor wet, this is not the cause of the breach of regulation 12(3). For the strict liability in regulation 5 to trigger, the failure has to lead to breach of another of the WHSW regulations. In this case it did not so Mrs Lewis’s employers were not in breach of their duty toward her.

While these decisions at first blush seem contradictory (now the liability is strict, now it is not) in fact they follow a logical progression. Ball v Street is not an anomalous decision, it follows a long line of cases in which strict liability has been imposed on employers providing machinery for use by their employees.

In other cases the regulations bear careful scrutiny. The purpose for which the protective equipment is provided is a crucial element in establishing the ambit of strict liability under PPE. So too, defining the workplace or establishing the effect of equipment and devices on the general safety of the workplace are important considerations when looking at strict liability under WHSWR.

It is unusual for broadly similar statutory wording to be examined by the higher courts on three different occasions in quick succession. The importance of the purposive assessment is confirmed by the Fytche decision being in the House of Lords. Careful consideration of the whole of the relevant regulations must remain imperative for those bringing or defending employer’s liability claims.

This article first appeared as a Focus article in Current Law Week Vol. 13 Issue 34/2005.