Health and Safety lessons from recent judgment

On 3 March 2017, the Court of Appeal (Civil) Division handed down the judgment in Casson v Hudson & Anor [2017] EWCA Civ 125 in relation to a claim for damages following a fall from a ladder during the painting of a church hall. The case highlights the potential liabilities faced by incumbents and PCCs in relation to persons undertaking work on premises for which they are responsible.

Background

At the material times, Mr Casson was a serving prisoner at HMP Kirkham and was assigned to the Mereside Community Centre whilst undertaking resettlement day release during 2008/9. He was subsequently transferred to the church hall as a general handyman. In both venues he was supervised by Lisa Reid, a community worker at the Centre. He accepted that he had been told not to use ladders, and that he had read and signed a placement memorandum of understanding that stated, inter alia, that he was not permitted to use ladders.

On 10 December 2009, Mr Casson fell from near the top of a 15-rung metal ladder that belonged to the Respondents and was kept at the church hall. It was in good condition. It had rubber feet and the floor was not slippery. Mr Casson stated that he was clearing cobwebs and dust off a wall using a brush in his right hand, in preparation for painting it, when the ladder slipped and moved from its position. It moved due to a combination of him reaching out from the ladder and the fact that it was un-footed. Mr Casson suffered serious injuries, from which he has not made a full recovery [3].

Mr Casson framed his claim in negligence and for breach of statutory duty under various statutory provisions, infra. He alleged that he was owed duties as an employee of the Respondents, but not all his claims depended on establishing an employment relationship. The case was heard by Mr Recorder Edge, sitting in the County Court at Liverpool, who rejected the case that Mr Casson had been an employee and dismissed the claim in its entirety. He did not find Mr Casson to be a satisfactory witness; even allowing for the passage of time, he regarded his oral evidence as at times unreliable and there were parts of his evidence that he rejected entirely.

Mr Casson did not challenge the decision that he was not employed by the Respondents; his appeal was limited to a claim for breach of statutory duty under The Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306) (often referred to as ” the PUWER regulations”).

Appeal Court judgement

The first of the appellant’s challenges, which hinged on oral evidence given by Mr Casson, were dismissed as to the findings of fact, [9-11]. As regards the interpretation and application of the Regulations, it was submitted that the Recorder wrongly applied regulation 3(3)(b). The Regulations impose a number of different duties as to the suitability, maintenance and inspection of work equipment and as to the provision of information, instructions and training to employees and others covered by the Regulations [12], which were summarized in paragraphs [13 to 15], below:.

“Work equipment” is defined in regulation 2(1) as “any machinery, appliance, tool or installation for use at work (whether exclusively or not)” and “use” is defined as “any activity involving work equipment…”

Regulation 3(2) provides that the requirements imposed by the Regulations “on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work”. Regulation 3(3) applies those requirements outside the context of employment:

“The requirements imposed by these regulations on an employer shall also apply –

(a) to a self-employed person, in respect of work equipment he uses at work;

“(b) subject to paragraph (5), to a person who has control to any extent of –

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which work equipment is used at work, ”

and to the extent of his control.”

Regulation 3(4) provides that any reference in paragraph 3(3)(b) to a person having control is a reference to “a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)”.

The Court noted that the Recorder dealt shortly with the claim under Regulation 3(3) at [21] – [22]:

“21….I am entirely satisfied that the defendants did not assume control over the claimant in any way during the time that he spent carrying out some work at the Hall. It is quite clear to me that the defendants did not direct how the claimant carried out his work, did not seek to control the claimant, did not in fact control the claimant, and/or did not attempt to instruct or direct the claimant. On the evidence, it is equally clear to me that at all times, the claimant was controlled by the prison governor, Lisa Reid and/or himself.

22. I find that the defendant did not owe the claimant duties under [the Regulations]…because they were not the claimant’s employer and because of the limitations imposed by regulation 3(3)(b) of the Regulations…”

Lord Justice David Richards stated:

“The Recorder does not in terms address whether the ladder was “work equipment”, but it is implicit in his approach as set out in [21] that he considered it to be so. The Respondents have filed a Respondent’s notice, seeking to uphold the recorder’s dismissal of the claim on the additional ground that in the circumstances of this case the ladder was not work equipment.

Although I see force in the Respondents’ submission that a prohibited use of the ladder meant that it was outside their control for the purpose of Regulation 3(3)(b)(i), I do not think it necessary to decide this issue. Even if that sub-paragraph applies in this case, it does not assist Mr Casson. The effect of Regulation 3(3)(b) in applying the requirements imposed by the Regulations to ‘a person who has control to any extent of (i) work equipment…..and to the extent of his control’ does not bring all the requirements into play but only the duty of maintenance under Regulation 5: see Mason & Satelcom Ltd v East Potential Ltd [2008] EWCA Civ 494. The ladder was in good condition, and Mr Casson’s injuries were not caused by the state of the ladder but by the way that he was using it.

In order to engage the duties to provide information, instructions and training and to ensure that the ladder was suitable for the purpose for which it is used (regulations 8,9 and 4), the Respondents would have to be a person who had control to any extent of either “a person at work who uses or supervises or manages the use of work equipment” or ‘the way in which work equipment is used at work” and in either case “to the extent of such control’. In the light of the finding that Mr Casson was not instructed to do any painting but did so on his own initiative and that he had not been given any permission to use the ladder, and indeed was forbidden from doing so both by the terms of his placement memorandum of understanding and by the instructions of Ms Reid, it is impossible to conclude that the Respondents fell into either of these categories. So much was realistically recognised by Mr Sigee on behalf of Mr Casson when he accepted that success on at least one of his challenges to the findings of fact was necessary if he was to succeed on this appeal.

For these reasons, I would dismiss the appeal”.

Lord Justice Patten and Lord Justice Sales concurred [20, 21].

Comment

This case is important as it highlights the equipment-related issues on which an incumbent and PCC might be found liable under health and safety legislation and common law. In general, liability extends to people over whom they exercise control or have  vicarious liability; however, the PUWER regulations focus on the equipment used, such as the ladder in this case. Their aim is to ensure that all equipment is: suitable for its intended purpose; regularly maintained to ensure safety; only used by people who have received adequate training; and inspected by a competent worker. Guidance on the application of the PUWER regulations is provided by HSE, in RoSPA’s Dummies Guide to PUWER and elsewhere

PUWER regulations apply to work activities throughout the whole of Great Britain [though their application to offshore installations is not of relevance to faith groups]. The groups covered by PUWER include: employers; self-employed people and the equipment they control or use; those who are employed to supervise or manage the use of equipment operated by others.

The RoSPA guidance states “if you use or control work equipment, or if you’re self-employed operating for profit or not, then you have a legal obligation to follow [the PUWER regulations]…the regulations do not refer to equipment used by the public, which comes under the Health and Safety at Work etc. Act 1974“.

Footnote

With regard to the general issues associated with “working at height”, an earlier post reported that in 2014, the Health and Safety Executive (HSE) had completely revised its guidance. Although no changes were made to the Work at Height Regulations 2005 the new guidance sets out “in clear, simple terms what to do and what not to do – and debunking common myths that can confuse and mislead employers.” As we reminded readers, under the Regulations, “work at height” means work in any place, including a place at or below ground level, and obtaining access to or egress from such a place while at work except by a staircase in a permanent workplace.

With thanks to Simon Hunter, 3 Stone Buildings, for the link to the case.