Accidents at work (1)

The aim of the first series of articles on this topic (2001, Vol.145, issues 5-10) was to outline the Regulations and principles involved in relation to accidents at work. The central tenet was that the law relating to accidents at work is an undervalued resource and litigators would benefit from greater insight into the law and legal principles involved.

There have been two major developments in relation to accidents at work. First, breach of the Management and Safety at Work Regulations 1999 now gives rise to civil liability for employees. And second, the adoption of the Work at Height Regulations 2005. (Other regulations will be looked at in later articles.)

Management and Safety at Work Regulations 1999

When these regulations were first introduced a breach gave rise to civil liability only in very limited circumstances '“ in relation to young and pregnant workers. However since 27 October 2003, breach of these regulations gives rise to civil liability for employees only as a result of the Management of Health and Safety at Work and Fire Precautions (Workplace) Amendment Regulations 2003. The importance of this development should not be underestimated.

Duty to carry out a risk assessment

One of the fundamental developments is that an employer is under a positive duty to carry out a risk assessment. Regulation 3(1) states:

'(1) Every employer shall make a suitable and sufficient assessment of '“

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work... for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed on him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.'

Further, there is a duty to review and renew the assessment if there is reason to suspect it is no longer valid or there has been a significant change in the matters to which it relates.

Practical results

The practical results of this could be enormous. If an employer has not carried out a risk assessment, and an employee can show that a risk assessment should have led to measures being taken, the employer could be on very weak ground in relation to liability.

Applying the principles of prevention, reg 4 states that where an employer implements any preventative measures he shall do so on the basis of the principles specified in Sched 1 to the regulations. Again this is of profound practical importance. Once a risk assessment has been carried out, the employer must implement the measures on the basis of:

(1) Avoiding risk.

(2) Evaluating the risks that cannot be avoided.

(3) Combating the risks at source.

(4) Adapting the work to the individual, as regards the design of workplaces, choice of work equipment and the choice of working and production methods. This should be done with a view to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health.

(5) Adapting to technical progress.

(6) Replacing the dangerous by the non-dangerous or the less dangerous.

(7) Developing a coherent overall prevention policy.

(8) Giving collective protective measures priority over individual protective measures.

(9) Giving appropriate instructions to employees.

Other duties

Other regulations of particular interest to personal injury litigators include:

1. The duty to make and give effect to arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures put in place (reg 5(1)).

2. The duty to provide appropriate health surveillance (reg 6).

3. The duty to establish and give effect to appropriate procedures to be followed in
the event of serious and imminent danger to persons at work (reg 8).

4. The duty to provide employees with comprehensive and relevant information on the risks to health and safety identified by the risk assessment and the preventive and protective measures put in place (reg 10)

5. The duty when, in entrusting tasks to employees to take into account their capabilities as regards health and safety (reg 13(1)).

6. The duty to ensure that employees are provided with adequate health and safety training, which shall be repeated periodically where appropriate (regs 13(2) and (3)).

7. There are specific duties in relation to the employment of young workers and pregnant mothers. However these have given rise to civil liability for some time.

Practical significance

The burden remains on the claimant to show that a failure to comply with the regulations is causative of the injury. If there is an arguable causal link, an employer trying to avoid an action for breach of duty will have to show that it carried out a risk assessment and that this assessment was 'suitable and sufficient'. Thereafter, the employer will have to show that it applied the proper principles of prevention; made appropriate health and safety arrangements and provided employees with adequate health and safety training. Further, it has to be remembered that these are not matters of general guidance or good practice, a failure to comply gives rise to a potential action for breach of statutory duty.

Work at Height Regulations

The Work at Height Regulations came into force on 6 April 2005. To some extent, the title is misleading, as the Regulations do not apply only to work at heights. Indeed work at heights is defined in reg 2(1) as:

'(a) work in any place, including a place at or below ground level;

(b) obtaining access to or egress from such place while at work, except by staircase in a permanent workplace, where, if measures required by these Regulations were not taken, a person could fall a distance liable to cause personal injury.'

The Regulations also apply to any workplace where there is a risk of a person falling a distance likely to cause personal injury. It thus applies to holes in the workplace floor even if that workplace itself is not at height (reg 11).

Finally, the regulations apply to falling objects. These duties apply even when the employee is not working at height (reg 10).

Duties imposed by the regulations

The regulations impose a range of duties.

Organisation and planning

The employer is under a duty to ensure that work at height is properly planned; appropriately supervised and carried out in a manner which is so far as reasonably practicable safe. (reg 4). There is a duty to ensure that no person is involved in an activity in relation to work at height unless he is competent to do so (reg 5).

Avoidance of risks

The employer's duty further extends to taking into account the risk assessment carried out under reg 3 of the Management Regulations. The duty extends to ensuring that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height. Further:

"Where work is carried out at height, every employer shall take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.' (reg 6(3))

The duty is then extended to provide work equipment from preventing, so far as reasonably practicable, a fall occurring and to minimise the distance or consequences of a fall.

There are specific duties in relation to selection of work equipment for work at height and particular work equipment (regs 7 and 8).

Fragile surfaces

The duty under reg 9 in relation to fragile surfaces applies to every person at work and not just those working at height. A fragile surface is 'a surface which would be liable to fail if any reasonably foreseeable loading were to be applied to it'.

The duty is to 'ensure that no person at work passes across or near, or works on, from or near, a fragile surface where it is reasonably practicable to carry out work safely and under appropriate conditions without his doing so'.

Where it is not reasonably practicable to prevent work on or near a fragile surface, the employer has to ensure suitable platforms, covering, guard rails or similar means of support or protection are available and to take suitable and sufficient measures to minimise the distances and consequences of the fall.

Further, a general duty is imposed where any person at work may pass across or near, or work on, from or near a fragile surface. The employer shall ensure that prominent warning notices are affixed to the approach to the place where the fragile surface is situated and, where this is not reasonably practicable, persons are made aware of it by other means.

Falling objects

The employer is under a general duty to prevent any person the fall of any material or object. Where it is not reasonably practicable to prevent a person being struck by falling material or object likely to cause personal injury (regs 10(1) and (2).

There is a specific duty to ensure that no material or object is thrown or tipped from height in circumstances where it is liable to cause injury to any person and to ensure that materials and objects are stored in such a way to prevent the risk of the collapse, overturning or unintended movement of such materials or objects (regs 10(3) and (4)).

Danger areas

In addition to the general requirements every employer has to ensure that where, in a workplace, owing to the nature of the work, there is a risk of a any person at work falling a distance or being struck by a falling object that is likely to cause injury, the workplace is equipped with devices preventing unauthorised persons from entering such areas and such area is clearly indicated (reg 11).

Inspection

There are specific duties relating to inspection of work equipment and inspection of places of work at height. The duty to inspect places of work at height includes a duty to 'ensure that the surface and every parapet, permanent rail or other such fall protection measure of every place of work at height are checked on each occasion before the place is used'.

Schedules to the Regulations

The Schedules to the Regulations are as important as the Regulations themselves. They provide specific guidance as to the duties owed and steps to be taken.

(1) Schedule 1 sets out the requirements for existing places of work and means of access or egress at height.

(2) Schedule 2 outlines the requirements for guard-rails, toe boards, barriers and similar collective means of protection.

(3) Schedule 3 gives the requirements for all working platforms, including additional requirements for scaffolding.

(4) Schedule 4 deals with the requirement for collective safeguards for arresting falls, this includes requirements for personal fall protection services; requirements for work positioning systems; requirements for rope access and positioning techniques, fall arrest systems and work restraining systems.

(5) Schedule 5 sets out requirements for ladders. This includes a duty to ensure that a ladder is used only if a risk assessment under the Management Regulations has demonstrated that the use of more suitable work equipment is not justified because of the low risk; the short duration of use or existing features on site which he cannot alter.

There are other requirements in relation to ladders which must be rested on a stable, firm surface of sufficient strength and of suitable composition safety to support the ladder. It must be positioned as to ensure its stability during use. A suspended ladder has to be attached in a secure manner and a portable ladder must be prevented from slipping during use. Further, a ladder used for access must be long enough to protrude sufficiently above the place of landing to which it provides access. No interlocking or extension ladder shall be used unless its sections are prevented from moving relative to each other. Further a mobile ladder must be prevented from moving before it is stepped on.

Summary

The impact of these sets of Regulations cannot be under-estimated. The Work at Height Regulations refer, on several occasions, to the assessment that should be carried out under the Management Regulations. It is essential the all personal injury practitioners have a detailed knowledge of both sets of regulations.

Key points

• The Management of Health and Safety at Work Regulations began to impose general civil liability between employer and employer on the 27th October 2003.
• The next article will look at breach of statutory duty. Future articles will deal with developments in manual handling, defective equipment and accidents arising because of workplace conditions.