Accidents at work (6)

Working Time Regulations 1998

These Regulations have played some part in employment law and in cases relating to stress at work. However, a claimant in an accident case faces some problems in relying on the Regulations:

1. The Regulations are not made under the Health and Safety at Work Act 1974 and, therefore, are not directly applicable. There is an ongoing debate in relation to whether they have any direct effect.

2. There is a practical problem of causation. The claimant will have to succeed in showing that the accident was caused by tiredness (by himself or another worker who caused the accident). In cases where another worker is at fault, normal principles of vicarious liability would apply. When the claimant himself argues that the accident arose out of tiredness, there are often major difficulties in relation to causation.

Construction (Health, Safety and Welfare) Regulations 1996

The important element here is to note that most of the Regulations relating to safety working at heights (or anywhere where a claimant could fall, or be struck by a falling object) have been replaced by the Work at Height Regulations 2005 (see the first article in this series). Regulation 5 imposes a general duty to provide a safe place of work and safe means of access and egress.

• In Nixon v Chanceoption Developments Ltd [2002] EWCA Civ 558, a labourer on a building site fell off scaffolding and into the building he was working on. The judge at first instance dismissed his claim on the grounds that he was actually blown by the wind from the scaffold and that he was the author of his own misfortune by venturing out on to the scaffold when it was windy. The Court of Appeal emphatically overturned that decision. Sedley LJ observed that there were manifold breaches of the Regulations (including the duty to fence the scaffolding) and :

'Inexplicably, the judgment has overlooked the uncontested fact that the respondents were in breach of statutory duty. Had that been taken into account from the start, as it should have been, it seems to me that the judge would have had to hold the respondents liable.'

Ward LJ stated:

'In concentrating on why the claimant fell off the scaffolding, the judge lost sight of the fact that he did fail. He would not have fallen if guard-rails had been there to prevent this very happening. The place where he was working was not safe. There were, therefore, a series of breaches of the Construction Regulations'¦ Liability is established accordingly. Those regulations were there to protect the claimant from the folly which the judge was inclined to think made him the author of his own misfortune'¦'

• In Humpheryes v Nedcon [2004] EWHC 1260 (QB), a steel erector tripped over a stud that had been fixed to the floor of premises, Roderick Evans J observed that the defendants had failed to discharge the duties imposed them by regs 5 and 15.

'Erecting barriers to cordon off the
studded area or the placing of warning signs or tapes was reasonably practicable and neither defendant has submitted to the contrary.'

• In O'Gara v Paul John Construction [2005] EWHC 2829, the claimant was injured
• when reversing a dumper truck, which went over the end of a tarmac forecourt and overturned. The judge held that the mouth of the ramp was unsafe and there was a breach of reg 5(2), in that the site was not safe because there was a major drop on either side. It was reasonably practicable to make the site safe by filling in or levelling the areas. Further, the defendant had not carried out any risk assessments prior to working and should have realised the risk and dealt with it.

In all three of the above cases, the court rejected all arguments of contributory negligence.

Importance of training

As we have seen, many of the Regulations impose a specific duty to train and instruct. In O'Neill v DSG Retail Ltd [2002] EWCA Civ 1139, the claimant complained of a lack of training and instruction in relation to a manual handling task. Nelson J observed that:

'It could not be contended if the respondent sought to contend this'¦ that the failure to provide full training was merely the occasion for the injury and not its cause'¦ The injury which the appellant sustained in twisting his back was the very injury which the respondent sought to avoid through their training.'

The judge's finding that no amount of training would have prevented the accident was contrary to the evidence and outside the range of reasonable decision-making. 'The connection between the failure to give proper training and the accident was clearly established.' If the judge had considered the question of what further steps could have been taken to reduce the risk of injury in manual handling, she would have held that the further steps would have included training.

Peter Gibson LJ observed:

'In my judgment, it is plain that the defendants by not giving the claimant training and by not showing him the training video failed to reduce the risk of injury to the lowest level reasonably practicable. It is no answer to say that the claimant was a fit young man who did weight training and had awareness of the principles of manual handling. Such a person may well have a false confidence in his ability to handle heavy goods safely.'

Smith v Nataro

Similar observations on the importance of training were contained in the case looked at in the previous article: Smith v Nataro Ltd [2006] EWCA Civ 775. The court dealt with submissions that the accident was a simple. The claimant was delivering items to a house walking on planks when one of the plans gave way. One of the defendants was the claimant's employer and allegations were made under the Manual Handling (Operations) Regulations 1992 in relation to a failure to train. Gage LJ observed:

'For my part, I accept that the duties of the employer under reg 4 require the employer to train an employee in risk assessment relating to handling operations being carried out on an uneven and unstable surfaces. The recorder expressed this duty as an instruction that:

''When you are carrying something, don't walk on any surface which may give way beneath you.'

'At first sight, this might seem to be training in something which was common sense and obvious. But for my part, I would hold that proper training under the Regulations would require such a warning to be impressed upon the minds of employees, and in particular on Mr Smith. I am further of the opinion that, in the context of deliveries to building sites, it requires an employer to train and/or warn an employee about the inherent dangers of carrying loads along temporary walkways.'

The court considered the argument that the claimant was an experience workman, there was alternative safer access and that training would have made no difference. Gage LJ stated:

'To my mind, this submission misses the point of the Regulations and the training required by them'¦ The object of the Regulations is for an employer, by training, to make an employee aware of the risks of injury when carrying heavy goods over uneven and possibly unstable ground. There was evidence that Mr Smith had injured his back before this incident. It was therefore, in my judgment, important that he was made aware of the risk which the Regulations were designed, so far as possible, to prevent from occurring.'

Duty to instruct and train

This emphasis on the duty to train and instruct appears in the Manual Handling (Operations) Regulations where the duty to train and instruct is not set out specifically in the Regulations. It is worthwhile remembering that:

• Regulation 9 of the Management of
• Health and Safety at Work Regulations 1999 imposes a duty to provide employees with comprehensive and relevant information on risks to health and safety, preventative and protective measures and the procedures in place to deal with emergency situations.
• Regulation 13 imposes a specific duty to ensure that employees are provided with adequate health and safety training on their being recruited and on being exposed to new or increased risks. This training has to be repeated periodically where appropriate.
• Regulations 7 and 9 of the Provision and Use of Work Equipment Regulations 1998 imposes a duty to provide information, instructions and training in relation to the use of work equipment.
• Regulation 9 of the Personal Protective Equipment at Work Regulations 1992 imposes a duty to give information, instruction and training in relation to the use of personal protective equipment.
• Schedule 1 of the Manual Handling Operations Regulations 1992 states that the employer has to take into account the individual capability of the worker, and must consider whether the job 'requires special information or training for its safe performance'. However, as the cases cited above show, the duty to train is far more extensive.

Summary

• The duty to provide a safe place of work
• in the Construction Regulations has been construed widely.
• If there is a breach of Regulations, and these breaches have a causative link with the injury, then the defendant is liable. The court should consider the relevancy of the issue of breach of statutory duty first.
• The duty to train and instruct can be paramount, even in cases where the risk appears 'obvious'.