Fawcett, Regina (on The Application of) v Health and Safety Executive: Admn 24 Feb 2012

Whether the contents of a Safety Alert Action Note issued by the Health and Safety Executive in the light of an inspector’s investigation into an accident in 2009 involving a fairground ride called The Crazy Frog breach the Provision of Services Regulations 2009

Mr Justice Beatson
[2012] EWHC 2364 (Admin)
Bailii
Provision of Services Regulations 2009
England and Wales

Health and Safety

Updated: 05 December 2021; Ref: scu.464266

Terveys- Ja Sosiaalialan Neuvottelujarjesta TSN v Terveyspalvelualan Liitto Ry: ECJ 13 Feb 2014

ECJ Social policy – Directive 92/85/EEC – Protection of the safety and health of workers – Pregnant workers and workers who have recently given birth or are breastfeeding – Maternity leave – Maintenance of payment and/or entitlement to an adequate allowance – Directive 96/34/EC – Framework Agreement on parental leave – Individual right to parental leave on the grounds of the birth or adoption of a child – Working and remuneration conditions – National collective agreement – Female workers having taken maternity leave after interruption of a period of unpaid parental leave – Refusal to pay a salary during the maternity leave

M. Ilesic, P
C-512/11, [2014] EUECJ C-512/11
Bailii
European

Health and Safety

Updated: 01 December 2021; Ref: scu.521841

McDonald v Department for Communities and Local Government and Another: CA 6 Nov 2013

The claimant was a lorry driver making collections from a power station. On his visits, he visited areas where asbestos sludge was being used. He contracted mesothelioma, and now sought damages. The defendants replied that he was not a worker at the plant within section 47. He now appeaed against rejection of his claim.
Held: The appeal failed. A person visiting the premises of a different employer where a process was under way likely to be injurious to health, was not a worker so as to receive the protection of the 1937 Act.
However, he was owed a duty under the 1931 Regulations.

Lord Dyson MR, McCombe, Gloster LJJ
[2013] EWCA Civ 1346, [2013] WLR(D) 431
Bailii, WLRD
Factories Act 1937 47(1), The Asbestos Industry Regulations 1931
England and Wales
Cited by:
Appeal fromMcDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Updated: 25 November 2021; Ref: scu.517455

London and North Eastern Railway Company v Berriman: HL 1946

Railway workers duties outside scope for damages

A railway worker’s widow sought compensation after her husband was killed by a train.
Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. She was not entitled to compensation.
Lord Porter said that the word ‘repair’ contains ‘some suggestion of putting right that which is wrong’.
Lord MacMillan said: ‘I recognise that when Parliament employs technical terms without definition in a statute dealing with a particular art or industry, courts of law are entitled to have the assistance of skilled persons in the interpretation of such terms. Indeed the present statute and rules contain numerous technical terms as to whose meaning in railway parlance evidence would be almost indispensable.’
Lord Simonds said that a person is ‘not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court.’
and ‘It is only by reference to the industry that the meaning can be ascertained . . It remains a question of evidence what the words mean in the industry. They are a term of art and it is by those skilled in the art that I must be instructed.’

Lord Simonds, Lord Porter, Lord MacMillan
[1946] AC 278, [1946] 1 All ER 255, 115 LJKB 124
England and Wales
Cited by:
CitedHereford and Worcester County Council v Newman CA 1975
The council had been found responsible by the magistrates for allowing footpaths to be ‘out of repair’. The paths were unusable for various reasons including having a hawthorn hedge growing down the middle, and having barbed wire fencing strung . .
CitedDepartment for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury

Updated: 19 November 2021; Ref: scu.200610

John Summers and Sons Ltd v Frost: HL 1955

Construction of Workmen Safety Statutes

The normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language. The House considered the requirement under section 14(1) of the 1937 Act that ‘Every dangerous part of any machinery . . shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced’, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous ‘if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection’, and that it was ‘impossible to say that because an accident had happened once therefore the machine was dangerous’. Lords Reid and Keith at pp 765-766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was ‘a reasonably foreseeable cause of injury’.
Lord Reid aid that an employer considering the use of dangerous equipment must allow for possible lapses by a workman.
Viscount Simonds said that it was elementary that it is necessary to consider not only the risk run by a skilled and careful man who never relaxes his vigilance.

Viscount Simonds, Lord Reid
[1955] AC 740, [1955] 1 All ER 870
Factories Act 1937 14(1)
England and Wales
Cited by:
CitedFytche v Wincanton Logistics Plc HL 1-Jul-2004
The claimant was employed as a milk truck driver. He was issued with a pair of boots capped to protect his feet from impact. In a snowstorm, and against company advice, he sough to dig himself out. The boots leaked and he suffered frostbite. He . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Negligence

Updated: 19 November 2021; Ref: scu.198670

Kennedy v Cordia (Services) Llp: SCS 7 Aug 2013

Outer House – damages after carer’s fall in snow.
Held: The Outer House found Cordia liable under the PPE Regulations, the Management Regulations, and the common law. Both risk assessments for Cordia had been faulty.
Lord McEwan summarised the expert evidence: He then looked at the risk assessments. Agreeing in general with the later evidence of Miss Rodger, he said account had to be taken of controls to overcome hazards before any rating could be arrived at. However, he said that in his opinion the measures specified did not reduce the risk. Personal Protective Equipment (PPE) should have been provided. He was critical of the omission of ‘inclement weather’ in [the 2010 risk assessment]. Such weather did not cease to be a hazard and simply to rate the risk as ‘tolerable’ did not take account of changes in the risk when seriously adverse weather could and did occur that winter. This risk could be eliminated altogether by not going to the house, but accepting the need to go, the employer (his emphasis) should choose and supply the correct footwear which was available at that time. That was not done . .
Being asked again about research papers he said some were surveys and some were lists. He agreed that icy and snowy surfaces varied and shoe attachments varied in their reaction to these. He described in detail how Yaktrax performed and how he had used his own set for 18 months in snow and ice. He said that they reduced the risk although there was no one answer to the problem. Everyone still had to take care. Had he done a risk assessment for Miss Kennedy’s job he would have assessed the risk as likely and the severity as harmful. It was for the employer to find out what PPE was best and in his opinion they should have provided Yaktrax or some other type of fitting.
. . under reference to the [British Standard], he said that the assessment of the risk should have been ‘substantial’. Slipping and falling could give a variety of serious injuries. What the employer had to do was reduce or eliminate the risk. That would have been done if Yaktrax had been provided.’

Lord McEwan
[2013] ScotCS CSOH – 130
Bailii
Personal Protective Equipment at Work Regulations 1992, Management of Health and Safety at Work Regulations 1999
Scotland
Cited by:
At Outer HouseKennedy v Cordia (Services) Llp SCS 19-Sep-2014
The respondent, Mrs Kennedy was working for the reclaimers as a carer. She had been injured walking up a snowy client’s path. The reclaimer appealed against an award for damages after a finding that she should have been provided with grips for her . .
At Outer HouseKennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Updated: 18 November 2021; Ref: scu.514285

Wilson v Tyneside Window Cleaning Co: CA 24 Apr 1958

Pearce LJ said that if an employer sends an employee to work, ‘for instance in a respectable private house’, he could not be held negligent for not visiting the house himself ‘to see if the carpet in the hall created a trap’.

Jenkins, Pearce, Parker LJJ
[1958] EWCA Civ 2, [1958] 2 WLR 900, [1958] 2 QB 110, [1958] 2 All ER 265
Bailii
England and Wales
Citing:
CitedBiddle v Hart 1907
A stevedore’s workman, whilst unloading a ship, was injured owing to a defect in the tackle, and he was suing his master. The learned Judge withdrew the case from the jury, on the ground that the stevedore was not responsible for a defect in the . .

Cited by:
CitedWoodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Negligence

Updated: 16 November 2021; Ref: scu.262824

Rotary Yorkshire Ltd v Hague (HM’s Health and Safety Inspectors): Admn 4 Jul 2014

Appeal against Employment Tribunal decision uphelding a prohibition notice served by the respondent, an inspector employed by the Health and Safety Executive. The appellant was a sub-contractor on a major construction site in Leeds responsible for the installation of mechanical and electrical plant. The respondent together with two other inspectors visited the site. They entered a High Voltage room which contained transformers, one of which had exposed jointed cables at its rear and other exposed conductors. Contact with any exposed conductor would, if it were live, create a risk of death by electric shock or serious injury from burns.

Collins J
[2014] EWHC 2126 (Admin)
Bailii
England and Wales

Health and Safety

Updated: 11 November 2021; Ref: scu.533804

Accardo and Others v Comune di Torino: ECJ 21 Oct 2010

accardo_torinoECJ2010

ECJ Social policy – Protection of the safety and health of workers – Organisation of working time – Municipal police officers – Directive 93/104/EC – Directive 93/104/EC as amended by Directive 2000/34/EC – Directive 2003/88/EC – Articles 5, 17 and 18 – Maximum weekly working time – Collective agreements or agreements concluded between the two sides of industry at national or regional level – Derogations relating to deferred weekly rest periods and compensatory rest – Direct effect – Interpretation in conformity with European Union law.

C-227/09, [2010] EUECJ C-227/09
Bailii

European, Health and Safety

Updated: 11 November 2021; Ref: scu.425750

Coia v Portavadie Estates Ltd: SCS 6 Jan 2015

(Extra Division Inner House) ‘In this action for damages for personal injury three central issues arise:
(1) Was the wardrobe pole which fell and injured the pursuer ‘work equipment provided by the defenders for use or used by an employee of theirs at work’ for the purpose of The Provision and Use of Work Equipment Regulations 1998 when the accident happened?
(2) Was the pursuer at work when the accident happened?
(3) Was the lodge in which the accident happened a workplace for the purpose of the Workplace (Health, Safety and Welfare) Regulations 1992 when the accident happened? The pursure was a chef working for the defenders, satying at residential accomodation provided by them. The appellant sustained injury when he was removing his own personal possessions from a wardrobe in premises that he occupied otherwise than as a result of his contract of employment with the defenders.
Held: The answer to thr first question was ‘No’, and ‘The appellant was not at work when the accident happened – he was removing his personal possessions from the accommodation which he occupied, but there was nothing in the evidence to establish that he was doing so as a result of an instruction given to him in the course of his employment rather than in the context of his agreement with the defenders that he should be permitted to occupy the lodge on a temporary basis. The lodge was not, at the time of the accident, a workplace for the purpose of the workplace regulations. ‘

Lord Menzies
[2015] ScotCS CSIH – 3
Bailii
Workplace (Health, Safety and Welfare) Regulations 1992, The Provision and Use of Work Equipment Regulations 1998
Scotland

Scotland, Personal Injury, Health and Safety

Updated: 11 November 2021; Ref: scu.540499

Brincat And Others v Malta: ECHR 24 Jul 2014

ECHR Article 2
Positive obligations
Death as a result of prolonged exposure to asbestos in Government run ship yard: violation
Article 8
Positive obligations
Damage to health as a result of prolonged exposure to asbestos in Government run ship yard: violation
Article 35
Alleged failure to exhaust civil remedy affording no compensation in respect of non-pecuniary damage: preliminary objection dismissed
Facts – The applicants were employees (or their relatives) of a Government-run ship repair yard from 1968 to 2003. They allege that they (or their relatives) were constantly and intensively exposed to asbestos particles during their employment repairing ship machinery insulated with asbestos. This resulted in damage to their health and in one case the death of one of the workers (Mr Attard) from asbestos related cancer.
In May 2009 the applicants brought constitutional redress proceedings alleging that the State had failed to protect them (or their relatives) from unnecessary risks to their health and they sought compensation. Their applications were ultimately dismissed in April 2011 for non-exhaustion of domestic remedies, the Constitutional Court considering that constitutional redress proceedings could only be brought after the applicants had brought civil proceedings for damages arising out of tort or contractual liability.
Law
(a) Admissibility – Article 35 – 1 (exhaustion of domestic remedies): The Government had submitted that the applicants had not exhausted domestic remedies as they had failed to institute an ordinary civil action in tort, opting instead to attempt constitutional redress proceedings. Rejecting that submission, the Court re-affirmed that in the event of a breach of Articles 2 and 3 of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies. The same had to be true of the applicants’ complaint under Article 8 which in this specific case was closely connected to those provisions. The Court accordingly rejected the Government’s argument that there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases. It considered that the domestic courts’ and Government’s reliance on the Court’s judgment in Zavoloka v. Latvia* was based on a very broad reading of that case. In Zavoloka the Court held solely that there was no right to non-pecuniary damage in the specific circumstances of that case, where the applicant’s daughter had died as a result of a traffic accident due to the negligence of a third party and where no responsibility, direct or indirect, could be attributed to the authorities. It therefore had to be distinguished from the applicants’ case.
Noting that under Maltese law the constitutional remedy, unlike a civil action in tort, was capable, in theory at least, of affording appropriate compensatory redress in respect of both pecuniary and non-pecuniary damage, and that there was no pre-existing mandatory legal requirement to bring an action in tort before using the constitutional remedy, the Court considered that the applicants could not be blamed for having pursued one remedy instead of two.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – Articles 2 and 8: The Court reiterated that the State had a positive duty to take reasonable and appropriate measures to secure applicants’ rights under Articles 2 and 8 of the Convention. In the context of dangerous activities, the scope of the positive obligations under Articles 2 and 8 of the Convention largely overlapped. Indeed, the positive obligation under Article 8 required the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2.
The Court found that the Maltese Government had known or ought to have known of the dangers arising from exposure to asbestos at least from the early 1970s, given the domestic context as well as scientific and medical opinion accessible to the Government at the time. The applicants had been left without any adequate safeguards against the dangers of asbestos, either in the form of protection or information about risks, until the early 2000s by which time they had left employment at the ship repair yard. Legislation which had been passed in 1987 had not adequately regulated asbestos related activity or provide any practical measures to protect employees whose lives may have been endangered. Lastly, no adequate information was in fact provided or made accessible to the applicants during the relevant period of their careers at the shipyard.
The Court concluded that, in view of the seriousness of the threat posed by asbestos, and despite the State’s margin of appreciation as to the choice of means, the Government had failed to satisfy their positive obligations, to legislate or take other practical measures under Articles 2 and 8.
Conclusion: violation of Article 2 (substantive aspect) in respect of Mr Attard (unanimously); violation of Article 8 in respect of the other applicants (unanimously).
Article 41: EUR 30,000 in respect of the claim for non-pecuniary damage under Article 2; awards ranging from EUR 1,000 to EUR 12,000 in respect of the claims for non-pecuniary damage under Article 8; claims in respect pecuniary damage dismissed.

60908/11 – Legal Summary, [2014] ECHR 900
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Health and Safety, Personal Injury, Constitutional

Updated: 11 November 2021; Ref: scu.536425

Kmiecic v Isaacs: QBD 12 Mar 2010

The claimant sought damages after suffering injury when falling from a ladder working on the uninsured builder’s site. He sued the owners of the property, saying that by refusing to allow or pay for the work to be conducted in safer ways, she had taken control over the works and made herself responsible, pointing to differences in the regulations.
Held: Swift J said: ‘The 2005 Regulations apply, in the case of a non-employer, to ‘work by a person under his control, to the extent of his control’. The 1996 Regulations impose a duty on a non-employer who ‘controls the way in which the construction work is carried out by a person at work’ to comply with the Regulations ‘insofar as they relate to matters which are within his control’ . . the defendant did not assume control over the claimant, in the sense of being able to direct how he carried out his work. She was entitled to – and did – impose limits on (and thereby control) his access to her property, by refusing him entry to the house for the purpose of gaining access to the roof. She did that in her capacity as an occupier, not as a person controlling the way in which he carried out his work.’ The defendant did not owe the duty claimed, his employer did.

Swift J
[2010] EWHC 381 (QB)
Bailii
Work at Height Regulations 2005, Construction (Health, Safety and Welfare) Regulations 1996, Provision and Use of Work Equipment Regulations 1998
England and Wales
Citing:
CitedJennings v The Forestry Commission CA 23-May-2008
The claimant was a self employed contractor. He suffered serious injuries when while working for the defendant, his vehicle overturned. The defendant appealed against the finding of liability. The Land Rover went out of control on a steeply sloping . .
CitedMccook v Lobo and others CA 19-Nov-2002
The defendant was the occupier of premises. He did not direct how the work should be done and was not present at the time the work was being performed.
Held: He had not been in control of the relevant work. Judge LJ referred to Regulation 4(2) . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Construction

Updated: 11 November 2021; Ref: scu.402624

Goodwin v Bennetts UK Ltd: CA 11 Dec 2008

The claimant appealed against dismissal of her claim for personal injury in the form of tenosynovitis from keyboard use. The judge had found the defendants not negligent. The claimant typed, but not intensively, and made a fairly small number of keystrokes a day.
Held: The claimant’s daily routine was such that it was in practice interrupted by such breaks or changes of activity as would reduce her workload on the display screen equipment. Though the defendants were in breach, that breach had no causative effect. The appeal succeeded but only in part and as to the time after her return to work when the company had advice to minimise keyboard use.

[2008] EWCA Civ 1374
Bailii
Health and Safety (Display Screen Equipment) Regulations 1992 1
England and Wales
Cited by:
JudgmentGoodwin v Bennetts UK Ltd (Costs) CA 11-Dec-2008
. .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Negligence

Updated: 11 November 2021; Ref: scu.278664

Ammah v Kuehne Nagal Logistics Ltd: CA 22 Jan 2009

The claimant appealed dismissal of his claim for damages. He had been injured removing a pamphlet from a high shelf, having stood on an upturned plastic box. A riser had been provided, and the employer’s manual told employees not to stand on such boxes. He had been given no training on induction.
Held: The appeal failed. ‘the respondent complied with its duty of care to ensure a safe system of work in relation to access to the upper shelves. Not only was suitable equipment available, but employees were instructed to use that equipment and not to stand on boxes for the purpose. The risk associated with standing on a box had been identified but had been adequately guarded against by the instruction given. Employees may occasionally have stood on boxes, but it was not a common practice and it was not condoned. In standing on a box, the appellant took a risk for which only he, and not his employer, was to blame. There is no basis for holding the respondent liable for the injury he sustained. ‘

Ward LJ, Richards LJ, Aikens LJ
[2009] EWCA Civ 11
Bailii
England and Wales
Citing:
CitedGeneral Cleaning Contractors Ltd v Christmas HL 1953
It is the duty of the employer to consider the situation, devise a suitable system and instruct his employees what they must do and to provide appropriate equipment. In leaving it to individual workmen to take precautions against an obvious danger, . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury

Updated: 11 November 2021; Ref: scu.280132

Willock and Others v Corus UK Ltd: CA 17 May 2013

The employee appealed against a finding that the employers were not liable for a breach of the 1998 Regulations leading to his injuries at work. As a crane driver at a steel works, he had incurred back pain due to what he said was a bad posture in the crane cab.
Held: It was not clear that the judge addressed the critical issue upon regulation 17(2), as now seen. The claimants’ appeal was allowed because of the causation error

Lord Hughes of Ombersley, David Richards J, Sir Alan Ward
[2013] EWCA Civ 519
Bailii
Provision and Use of Work Equipment Regulations 1998 1792)
England and Wales

Personal Injury, Health and Safety

Updated: 10 November 2021; Ref: scu.509314

Spencer-Franks v Kellogg Brown and Root Ltd and others: HL 2 Jul 2008

The deceased worked for the defendants on an oil rig. He was injured by a door closer he was attempting to repair. The defendants denied that the mechanism was equipment within the Regulations.
Held: The appeal was allowed. The door closer was apparatus for use at work, though provided by a different company. The Regulations went beyond the scope of the Directive and did not limit liability to employers only, but did not specify the provider. The answer to the difficulty of finding an employer strictly liable for defects in equipment over which he had no control must be found in regulation 3(2), which delimits the area of the employer’s responsibility, rather than by giving an artificial and relativist meaning to the definition of work equipment in regulation 2(1).
Lord Rodger said: ‘when selecting any item of work equipment, under Regulation 4(2) the platform operator would indeed have to consider whether a major repair could be carried out without imperilling the safety of the platform and everyone on it. Indeed, that is just common sense – not only for oil platforms but for any factory or workplace where major repairs to equipment may have to be carried out. In my view, the word ‘repairing’ in Regulation 2(1) should therefore be given its ‘ordinary’ meaning. In terms of that ordinary meaning, on his averments, the pursuer was engaged in ‘repairing’, and so ‘using’, the door, or door closer, when the arm of the closer sprang out and injured him. ‘

Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 46, Times 03-Jul-2008, [2008] ICR 863, [2009] 1 All ER 269, 2008 Rep LR 106, 2008 SLT 675, [2008] PIQR P22, (2008) 158 NLJ 1004, 2008 SCLR 484, (2008) 105(27) LSG 17, (2008) 152(27) SJLB 30
Bailii, HL
Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) 3, Council Directive 89/655/EEC
Scotland
Citing:
CitedPRP Architects v Reid CA 28-Jul-2006
A lift was held to be work equipment within the Regulations. . .
CitedBreslin v Britoil plc 1992
The regulation makes no distinction between the fabric of the installation and the equipment. The duty applied equally to both, and the liability which it creates is strict: . .
Not approvedHammond v Commissioner of Police for Metropolis and others CA 11-Jun-2004
The claimant mechanic was employed by the Commissioner of Police. He was working on the wheel of a police dog van when the shearing of a wheel bolt caused him to suffer injury. The question was whether the van was ‘work equipment’ within the meaning . .
CitedJames Edward Beck v United Closures and Plastics Plc SCS 22-Jun-2001
Two heavy doors in which the pursuer trapped his hand were not within the definition of workplace, which contemplated open spaces, but did constitute work equipment in terms of the 1998 Regulations. . .
CitedDuncanson v South Ayrshire Council 1999
A steel storage cabinet was held to be work equipment. . .
CitedMackie v Dundee City Council 2001
A dining hall table being moved by a caretaker was held to be work equipment. . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedHaigh v Charles W Ireland Ltd HL 1974
. .
CitedKnowles v Liverpool City Council HL 15-Oct-1993
A flagstone being laid by a council employee was held to be ‘equipment provided by his employer for the purposes of the employer’s business’ under the 1969 Act. An employer is liable for the defective equipment he provides. What is equipment will . .
CitedCandace Donaldson v Hays Distribution Services Limited C B Hillier Parker Management Services Limited and C B Hillier Parker Limited National Britannia Health and Safety Limited OHCS 14-Jun-2005
A visitor who was crushed between a lorry and a loading bay while collecting her purchases at a shopping centre did not have a strict liability claim under the 1992 Regulations against the lorry driver’s employers or the controllers of the bay. . .

Cited by:
CitedSmith v Northamptonshire County Council HL 20-May-2009
The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury

Leading Case

Updated: 10 November 2021; Ref: scu.270658

Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1): ECJ 5 Oct 2004

pfeiffer_deutchesrotesreuzECJ102004

ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions
A National Court, when applying domestic law and in particular legislative provisions specifically adopted for the purposes of implementing the requirements of a Directive, is bound to interpret national law, as far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive. It is the responsibility of the National Court to ensure that the rules of Community law are fully effective.
Europa Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of – road transport – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions.

C-399/01, [2004] EUECJ C-399/01, C-401/01, [2004] EUECJ C-401/01, [2004] EUECJ C-403/01, C-397/01, C-398/01, C-402/01, C-403/01, C-400/01, [2005] IRLR 137, [2004] ECR 8835, [2005] ICR 1307, [2004] ECR I-8835
Bailii, Bailii, Bailii
Directive 93/104/EC
Citing:
ApprovedLandeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .

Cited by:
CitedGreenalls Management Ltd v Customs and Excise HL 12-May-2005
Volumes of vodka were transferred from a secure warehouse to a carrier for export. They were diverted, and not exported and the Customs sought the unpaid duty from the warehouse. The Directive provided that duty was payable on the ‘release for . .
CitedAttridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
CitedEnglish v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
CitedBritish Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedTwentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
CitedForensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
CitedBritish Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .

Lists of cited by and citing cases may be incomplete.

European, European, Health and Safety, Transport, Employment, Health and Safety

Leading Case

Updated: 10 November 2021; Ref: scu.215895

Craner v Dorset County Council: CA 5 Dec 2008

The claimant sought damages after hitting his knee when a trolley he was pushing stopped abruptly on hitting a raised slab on the defendant’s pathway.
Held: The defendant’s appeal failed. In the end what was reasonable was a question of fact. ‘for the future that a case of this kind should be considered under regulations 12(1) and (2) because the concept of ‘unevenness’ in regulation 12(2)(a) is more apt than the concept of ‘obstruction’ in 12(3) to describe the difference in height (such as it was) between the paving slabs ‘ The court did not support the judge’s findings as to the unsuitability of the trolley, though the judge had not been greatly assisted by the solicitors involved. The issue of reasonable choice has to be looked at compendiously, and not necessarily separately in relation to each of the elements of pharmaceutical services/directed services and persons from whom recipients may obtain pharmaceutical services. However, even where there is limited or even no choice, it is still open to a decision-maker to find that, taking all the relevant factors into account, the provision of pharmaceutical services in the neighbourhood was adequate.’

Sedley LJ, Arden LJ, Longmore LJ
[2008] EWCA Civ 1323, Times 27-Feb-2009, [2009] PIQR P10, [2009] ICR 563, [2008] NPC 134
Bailii
Workplace (Health, Safety and Welfare) Regulations 1992 12(3), Provision and Use of Work Equipment Regulation 1998 4
England and Wales
Citing:
CitedJenkins v Allied Ironfounders Ltd HL 1970
In the context of an action for a trip, and whether the path could have been repaired, the question of ‘reasonable practicability’ could be decided on inferences from the evidence without recourse to onus of proof being on the defenders. . .
CitedMarks and Spencer plc v Palmer CA 9-Oct-2001
A shopper carrying some heavy bags tripped and fell over a weather strip, which was proud of the floor at an exit door to the extent of some 8 to 9.5 mm high. The recorder had said that, once he was satisfied that the claimant came into contact with . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Updated: 10 November 2021; Ref: scu.278524

Sutherland v Hatton; Barber v Somerset County Council and similar: CA 5 Feb 2002

Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are no special controls on claims for psychiatric (or physical) injury or illness arising from the stress of doing work an employee has to do.
Hale LJ said: ‘If the standard of care expected of employers is set too high or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history.’
. . and ‘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 employer’s liability apply.
The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors). Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of 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 employees can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.’
. . and ‘ because of the very nature of psychiatric injury, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury . . All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) An injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer cast upon him.’

Lord Justice Brooke, Lady Justice Hale, And, Lord Justice Kay
Times 12-Feb-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 76, [2002] 2 All ER 1, [2002] ICR 613, [2002] PIQR P221, [2002] Emp LR 288, [2002] IRLR 263, (2002) 68 BMLR 115
Bailii
England and Wales
Citing:
CitedWilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937
The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .
CitedWalker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .

Cited by:
CitedKeen v Tayside Contracts OHCS 26-Feb-2003
The claimant sought damages for post traumatic stress disorder. He was a road worker instructed to attend by the defendant immediately after a terrible accident.
Held: It was a classic case of nervous shock. He was not a rescuer, and nor had . .
CitedBonser v UK Coal Mining Ltd CA 9-Jun-2003
The employer appealed a finding that it was responsible in negligence to a staff member for stress related injury at work. The claimant had worked in the coal industry for 20 years, but she had then been made redundant. The defendants took her on as . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Appeal fromBarber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
DistinguishedDonachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
CitedDonachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
CitedBanks v Ablex Ltd CA 24-Feb-2005
The claimant appealed denial of her claim for damages for psychological injury. She complained that her employer had failed to prevent her and other female employees being bullied by a co-worker, and they committed a breach of statutory duty in . .
CitedHartman v South Essex Mental Health and Community Care NHS Trust etc CA 19-Jan-2005
The court considered the liability of employers for stress injury to several employees.
Held: Though the principles of awarding damages for stress related psychiatric injury are the same as those for physical injury, the issues have still . .
CitedValidi v Fairstead House School Trust Ltd CA 9-Jun-2005
The claimant sought damages for work related stress. The court in dismissing the appeal regretted that so much had been spent on the case. The principles have now been settled, and the parties should test a case against those principles, and go for . .
CitedRothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
CitedFrench and others v Chief Constable of Sussex Police CA 28-Mar-2006
The claimants sought damages for psychiatric injury. They were police officers who had been subject to unsuccessful proceedings following a shooting of a member of the public by their force.
Held: The claim failed: ‘these claimants have no . .
CitedBarker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
CitedD v Intel Corporation (UK) Ltd QBD 23-May-2006
The claimant sought damages for stress incurred at work. She had suffered post natal depression and received counselling through her work and recovered. She suffered a second bout of depression after the birth of another child, but again was thought . .
CitedHone v Six Continents Retail Ltd CA 29-Jun-2005
The employer appealed a finding that it was liable in damages for negligence to the claimant, and employee who suffered psychiatric injury cause by stress at work. He said he had been left to work very excessive hours, between 89 and 92 hours a . .
CitedHelen Green v DB Group Services (UK) Ltd QBD 1-Aug-2006
The claimant sought damages from her former employers, asserting that workplace bullying and harassment had caused injury to her health. She had had a long term history of depression after being abused as a child, and the evidence was conflicting, . .
CitedClark v The Chief Constable of Essex Police QBD 18-Sep-2006
The officer had retired on ill health grounds, and now sought damages from his chief constable saying that the duties imposed on him had been excessive, and had caused his injury by negligence, and that he had been bullied by co-workers and had not . .
CitedJohnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
CitedRobertson (Ap) v The Scottish Ministers SCS 22-Nov-2007
The claimant sought damages saying that she had been bullied and harassed at her work as a prison officer. . .
CitedDickins v O2 Plc CA 16-Oct-2008
The employer appealed against a finding that it was responsible for the personal injury of the claimant in the form of psychiatric injury resulting from stress suffered working for them. She had told her employers that she was at the end of her . .
CitedIntel Corporation (UK) Ltd v Daw CA 7-Feb-2007
The company appealed against an award of damages to the defendant for personal injury in the form of stress induced mental illness.
Held: The reference to counselling services in Hatton did not make such services a panacea by which employers . .
CitedFlood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
CitedVeakins v Kier Islington Ltd CA 2-Dec-2009
The claimant alleged that her manager at work had harassed her. The court, applying Conn, had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.
Held: The claimant’s . .
CitedRayment v Ministry of Defence QBD 18-Feb-2010
The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up . .
CitedConnor v Surrey County Council CA 18-Mar-2010
The claimant teacher said that she suffered personal injury from stress after the board of governors improperly failed to protect her from from false complaints. The Council now appealed against an award of substantial damages.
Held: The . .
CitedBoylin v The Christie NHS Foundation QBD 17-Oct-2014
The claimant a senior employee manager complained of harassment and common law negligence causing her injury.
Held: The claim failed. Behaviour of the level required to found a claim under the 1997 Act was established, but only on one occaion . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.167557

Landeshauptstadt Kiel v Norbert Jaeger: ECJ 9 Sep 2003

Concepts of working time and rest period – On Call

ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals.
Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals
Where a doctor was required to be on hospital premises whilst he was ‘on-call’, the full on call duty was to be counted for the purposes of the working time Directive. This applied equally to periods in which he would be entitled to rest. Such periods of inactivity were part and parcel of on-call duties. There was a need for doctors to be available for emergencies and such rest could not be planned. ”working time’ shall mean any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”.

GC Rodriguez Iglesias, President, M Wathelet, R Schintgen (Rapporteur) and CWA Timmermans, Presidents of Chambers, C Gulmann, DAO Edward, P Jann, V Skouris, F Macken, N Colneric, S von Bahr, JN Cunha Rodrigues and A Rosas
C-151/02, Times 26-Sep-2003, [2003] EUECJ C-151/02, [2004] ICR 1528, (2004) 75 BMLR 201, [2003] 3 CMLR 16, [2003] ECR I-8389, [2004] All ER (EC) 604, [2003] IRLR 804
Bailii
Council Directive 93/104/EC concerning certain aspects of the organisation of working time.
European
Citing:
CitedSindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .

Cited by:
CitedBritish Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
CitedMacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
CitedHughes v Jones and Another EAT 3-Oct-2008
EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
ApprovedPfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedGallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
CitedHughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.186330

Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd: HL 1946

Employers Liability for Worker’s Negligence

A worker was injured by a negligently driven crane. The crane and Board’s driver were hired out to stevedores for loading work. The stevedores controlled the crane’s operations, but did not direct how the driver controlled the crane. The hire contract made the driver the employee of the defendant stevedores.
Held: The House upheld decisions that the Board, as the crane driver’s general employer, retained responsibility for his negligence.
Decisions of this kind depend on the particular facts and many factors may bear on the result. Considerations include: (a) the burden of showing that responsibility does not remain with the general employer is on the general employer and is a heavy one (b) by whom is the negligent employee engaged? Who pays him? Who has power to dismiss him? (c) who has the immediate direction and control of the relevant work? Who is entitled to tell the employee the way in which he is to do the work upon which he is engaged? ‘The proper test is whether or not the hirer had authority to control the manner of execution of the act in question. Given the existence of that authority its exercise or non-exercise on the occasion of the doing the act is irrelevant’. (d) the inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it. In the Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was this which caused the accident. The ultimate question may be, not what specific orders or whether any specific orders were given, but who is entitled to give the orders as to how the work should be done. (e) a transfer of services can only be effected with the employee’s consent. (f) responsibility should lie with the master in whose act some degree of fault, though remote, may be found
Viscount Simon said that a heavy burden of proof lay on the general or permanent employer to shift responsibility for the negligence of servants engaged and paid by such employer to the hirer for the time being who had the benefit of the services rendered. This could only be achieved where the hirer enjoyed the right to ‘control the way in which the act involving negligence was done.’

Lord Porter, Lord Simon, Lord MacMillan, Lord Uthwatt
[1946] 2 All ER 345, [1946] UKHL 1, [1947] AC 1
Bailii
England and Wales
Cited by:
CitedDenham v Midland Employers’ Mutual Assurance Limited CA 1955
The court was asked which of two mutually exclusive liability insurance policies covered damages which an employer was liable to pay to the widow of an employee, who was killed while he was working under the specific direction of engineers engaged . .
CitedViasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others CA 10-Oct-2005
The defendants had subcontracted work installing air conditioning to the second defendants, who in turn bought in fitters from the third defendants. A fitter caused a flood acting irresponsibly.
Held: The court reviewed the law of vicarious . .
CitedHawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
CitedBiffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
CitedJGE v The Portsmouth Roman Catholic Diocesan Trust CA 12-Jul-2012
The claimant suffered physical and serious sexual abuse whilst a child at a children’s home run by the defendant. A parish priest committed some of the abuse, and she claimed that the defendants were vicariously liable. They denied such liability. . .
CitedHawley v Luminar Leisure Plc and Others QBD 10-Jan-2005
The claimant had been assaulted by a doorman at a club operated by the defendants. The doorman was supplied by a security company, which was now in liquidation. The insolvent company’s insurers had declined indemnity. . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Personal Injury, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.190029

Baker v Quantum Clothing Group Ltd and Others: SC 13 Apr 2011

The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced hearing losses before 1989. The defendant companies now appealed against a finding of liability.
Held: The appeal was allowed (Majority: Mance, Dyson, Saville LL; Dissenting: Kerr and Clarke LL). A Department of Employment standard applicable in the period at issue was sufficient to discharge the employers from liability at common law in negligence.
Though the 1961 Act did apply, it must be applied against the background of the standards of the time, and the section did not impose any liability more strict than that already imposed at common law.
The concept of safety was a relative one and must be assessed in the context of the time: ‘section 29(1) imposes a non-delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.
There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification ‘so far as is reasonably practicable’ (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe.’ and ‘safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.’

Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson, Lord Saville
[2011] UKSC 17, UKSC 2009/0107, [2011] ICR 523, [2011] 1 WLR 1003
Bailii, SC, SC Summary, Bailii Summary
Noise at Work Regulations 1989 (SI 1989/1790), Factories Act 1961 29, Directive 86/188/EEC
England and Wales
Citing:
CitedStokes v Guest Keen and Nettlefold (Nuts and Bolts) Ltd QBD 1968
An employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The . .
CitedThompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
CitedDoherty and others v Rugby Joinery (UK) Limited CA 17-Feb-2004
The claimant had used a sander, and been injured with vibration induced white finger syndrome. The employee appealed against a finding of non-liability saying the company should have known of the risk.
Held: It had become accepted that use of . .
CitedTaylor v Fazakerley Engineering Co 26-May-1989
. .
See AlsoBaker v Quantum Clothing Group and Others CA 5-Jun-2009
The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of . .
See AlsoBaker v Quantum Clothing Group Ltd and Another CA 11-Jun-2008
Application by claimant for order that the respondents would be responsible for their own costs of the appeal irrespective of its outcome. . .
See AlsoBaker v Quantum Clothing Group CA 22-May-2009
The court considered the responsibility of employers for hearing losses resulting from exposure to noise at a level not at the time appreciated to cause a risk of injury. Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably . .
See AlsoBaker v Quantum Clothing Group Ltd CA 28-Jun-2007
. .
CitedHarris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
DoubtedHarris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
CitedKellett v British Rail Engineering Ltd QBD 3-May-1984
The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise-induced hearing loss.
Held: There had been exposure for long periods initially in the period . .
CitedHarris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
CitedArmstrong and others v British Coal Corporation CA 28-Nov-1996
Liability for vibration white finger damage was foreseeable from 1973, but liability began in 1975 when precautions became available against the consequences and so the employer was able to protect his employees. . .
CitedSmith v Wright and Beyer Ltd CA 3-Jul-2001
. .
CitedBrookes v South Yorkshire Passenger Transport Executive and Another CA 28-Apr-2005
Vibration tool injury. . .
CitedDoherty and others v Rugby Joinery (UK) Limited CA 17-Feb-2004
The claimant had used a sander, and been injured with vibration induced white finger syndrome. The employee appealed against a finding of non-liability saying the company should have known of the risk.
Held: It had become accepted that use of . .
CitedLondon and North Eastern Railway Company v Berriman HL 1946
Railway workers duties outside scope for damages
A railway worker’s widow sought compensation after her husband was killed by a train.
Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. She was not entitled to . .
CitedTaylor v Coalite Oils and Chemicals Ltd CA 1967
The section is part of a scheme of criminal liability, from which any civil liability only follows ‘by judicial interpretation’. Diplock LJ said: ‘The occupier’s duty in respect of working places is not to prevent accidents occurring to persons . .
CitedPrince v Carrier Engineering Co Ltd 1955
. .
CitedFranklin v The Gramophone Company Ltd CA 1948
Compliance with statutory obligations, which may be of limited scope, does not necessarily absolve a defendant from liability in negligence. It is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal . .
CitedDavies v de Havilland Aircraft Co Ltd 1951
. .
CitedDorman Long and Co Ltd v Hillier 1951
A worker had to remove four corrugated iron sheets from a roof. He was injured and claimed under the 1937 Act.
Held: A place can be a means of access at one time and a place of work at a different time but it cannot be both at the same time. A . .
CitedRose v Colville’s Ltd 1950
. .
CitedMcCarthy v Coldair Ltd CA 1951
. .
CitedClifford v Charles H Challen and Son Ltd CA 1951
. .
CitedHomer v Sandwell Castings Ltd CA 1995
The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
Held: The claim failed . .
CitedEbbs v James Whitson and Co Ltd CA 1952
. .
CitedEvans v Sant QBD 1975
In the course of laying a water-main, a test-head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a . .
CitedLiptrot v British Railways Board HL 1969
. .
CitedLevesley v Thomas Firth and John Brown Ltd CA 1953
In the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. . .
CitedLatimer v AEC Limited HL 25-Jun-1953
The Appellant had recovered damages for injuries which he alleged had been the result of a failure on the part of the Respondents in their statutory duty to maintain one of the gangways in their works in an efficient state. He slipped on a factory . .
CitedSheppey v Matthew T Shaw and Co Ltd 1952
. .
CitedBerry v Stone Manganese and Marine Ltd 1972
The plaintiff sought damages in common law negligence respect of noise at work which ‘amounted to about 115 to 120 decibels, whereas the. . tolerable noise is about 90’ and no ear muffs had been provided.
Held: The claim succeeded. . .
CitedNimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
CitedTrott v WE Smith (Erectors) Ltd CA 1957
A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur. Safe cannot mean ‘absolutely safe’. . .
CitedJohn Summers and Sons Ltd v Frost HL 1955
Construction of Workmen Safety Statutes
The normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language. The House considered the requirement under section 14(1) of the 1937 Act that . .
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
CitedParamor v Dover Harbour Board 1967
Salmon LJ responded to an argument that ‘if the bare possibility of injury and accident could reasonably be foreseen, then the means of access [to a place of work] is not ‘safe”, saying that there ‘is, of course, a risk of injury and accident . .
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
CitedRegina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
CitedRegina (on the application of Junttan Oy) v Bristol Magistrates’ Court QBD 2002
‘I have found this issue one of considerable difficulty and finely balanced. However, I have come to the conclusion that it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act . .
CitedMains v Uniroyal Englebert Tyres Ltd IHCS 29-Sep-1995
An employer’s duties to provide a safe workplace exists despite the lack of forseeability of any accident of the type which occurred. . .
CitedRobertson v RB Cowe and Co 1970
A trestle erected on a marine slipway moved causing a workman to fall.
Held: Lord Guthrie concluded ‘from the whole circumstances elicited . . as to the position of the staging, the way in which the pursuer worked, the outward movement of the . .
CitedLarner v British Steel plc CA 1993
An undetected crack caused a structure to fail injuring the plaintiff. . .
CitedNeill v Greater Glasgow Health Board 1994
. .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury

Updated: 02 November 2021; Ref: scu.439645

Harrison v National Coal Board: HL 1951

The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance by their workers to the regulations.
Lord MacDermott (obiter) said: ‘The fireman in doing his work as a shot-firer was acting in the course of his employment by the defenders. In the performance of his work he was required by the regulations to adopt certain precautions which Parliament had prescribed for the safety of those employed in coal mines. But it is not correct to say that he was not acting for his master. The firing of the shots was the work which he was employed by the defenders to do. His failure to take the precautions which Parliament has required of him did not take him outwith the scope of his employment. Accordingly, his acts were still within the area in which the vicarious responsibility of a master operates.’
Vicarious liability was not confined to common law negligence: ‘It arises from the servant’s tortious act in the scope of his employment and there can be no doubt that [the servant] in breaking the shot-firing regulations committed a tort.’
Lord MacDermott: ‘Vicarious liability is not confined to common law negligence. It arises from the servant’s tortious act in the scope of his employment and there can now be no doubt that [the employee] breaking the shot-firing regulations committed a tort.’
Lord Porter said that the Factories Act is ‘a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits’.

Lord MacDermott, Lord Porter
[1951] AC 639, [1951] 1 TLR 1079, [1951] 95 Sol Jo 413, [1951] 1 All ER 1102
England and Wales
Cited by:
CitedNicol v National Coal Board SCS 1952
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedMcDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .

Lists of cited by and citing cases may be incomplete.

Utilities, Vicarious Liability, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.241425

Caswell v Powell Duffryn Associated Collieries: HL 1939

An action was brought for injuries caused by a breach of statutory of duty.
Held: A breach of statutory duty is regarded as ‘akin to negligence’.
Lord Atkin said that a common sense rather than a philosophical or scientific approach to causation was to be adopted. Also: ‘But the injury may be the result of two causes operating at the same time, a breach of duty by the Defendant and the omission on the part of the Plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances. In that case the Plaintiff cannot recover because the injury is partly caused by what is imputed to him as his own default. On the other hand, if the Plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence.”
Lord Wright said: ‘The cause of action is sometimes described as statutory negligence and it is said that negligence is conclusively presumed’ and ‘The policy of the statutory duty protection would be nullified if a workman in a factory were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into danger consequent on the breach by his employer of the statutory duty.’ and
And ‘a common law action based on the purpose of the statute to protect the workman . . [which] resembles actions in negligence in that the claim is based on a breach of a duty to take care for the safety of the workman.’ and ‘I am of opinion that the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain, and manifold risks of factory or mine.’ and
‘The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins.’ and
‘What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety.’
As to the use of inference, there can be no inference unless there are objective facts from which to infer the fact which it is sought to establish

Lord Wright, Lord Atkin
[1940] AC 152, [1939] 3 All ER 722, 55 TLR 1004
England and Wales
Cited by:
CitedJones v Livox Quarries CA 25-Apr-1952
The plaintiff had ridden on the back of a kind of tractor in a quarry and in defiance of his employer’s instructions, risking being thrown off and injured. Another vehicle ran into the back of the first vehicle, injuring the plaintiff. He contended . .
CitedWilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
ApprovedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Negligence, Personal Injury

Leading Case

Updated: 01 November 2021; Ref: scu.272566

Regina v Upper Bay Ltd: CACD 2 Mar 2010

The defendant sought leave to appeal against its conviction for failing so to conduct its swimming pool as to avoid exposing visitors to risk to health or safety. A boy had gone to the pool with his father and brother. Notices said that a child of his age (under eight) should be accompanied by an adult. He could not swim and had no armbands. He almost drowned. The defendant said that his father should have supervised him.
Held: Leave was refused. The failure of parental supervision did not absolve the defendant from responsibility. The father’s duties were concurrent with those of the pool owners but were not the same and did not displace the pool’s duty. The duty imposed on it by the Act was not delegable. ‘making all . . allowances, the applicant had to recognise and anticipate — and appears to have recognised and anticipated in its policy — the reality that on occasions small children do escape not only when parental supervision is lax, but even when parental supervision is very close. That is what children do.’

Lord Judge CJ, Roderick Evans, Griffith Williams JJ
[2010] EWCA Crim 495, [2010] WLR (D) 60
Bailii, WLRD
Health and Safety at Work etc Act 1974 3(1) 33(1)(a)
England and Wales

Crime, Negligence, Health and Safety

Updated: 01 November 2021; Ref: scu.403321

Munro v Aberdeen City Council: SCS 17 Sep 2009

Safety Duty on Employer was not Absolute

The pursuer was injured slipping on ice in her defender employer’s car park. Liability depended on the interpretation of regulation 5, the claimant saying that it imposed an absolute requirement to maintain the workplace in efficient working order and good repair. The defender said it was governed by regulation 12.
Held: The Workplace Directive ‘does not clearly impose on employers any absolute duty to secure the safety of either new or existing workplaces under all possible conditions’ and ‘If the pursuer has a statutory claim in respect of her injury . . it lies under regulation 12(3), which would afford the defenders the opportunity to prove that no reasonably practicable steps on their part would have prevented it. In other words, regulations 5(1) and 12(3) of the 1992 Regulations simply reflect the long established dichotomy between absolute duties for long-term dangers and qualified duties for short-lived transient conditions.’

Lord Malcolm
[2009] ScotCS CSOH – 129
Bailii
Workplace (Health, Safety and Welfare) Regulations 1992 5(1) 12(3)
Scotland
Citing:
CitedMillar v Galashiels Gas Co Ltd; Galashiels Gas Company Ltd v O’Donnell HL 20-Jan-1949
A hoist mechanism failed, the employee was injured, and he sought damages from his employer under the Act.
Held: The section imposes an absolute obligation to maintain work equipment in an efficient state or in efficient working order. The . .
CitedLatimer v AEC Limited HL 25-Jun-1953
The Appellant had recovered damages for injuries which he alleged had been the result of a failure on the part of the Respondents in their statutory duty to maintain one of the gangways in their works in an efficient state. He slipped on a factory . .
CitedLewis v Avidan Ltd (T/A High Meadow Nursing Home) CA 13-Apr-2005
A nurse claimed damages after slipping on a patch of water in the nursing home where she worked. The defendant argued that the pipe which had broken was not equipment so as to make it liable.
Held: The nurse’s appeal failed. The mere fact of . .
ApprovedMcEwan v Lothian Buses Plc OHCS 4-Apr-2006
Mr McEwan was a probationary fitter employed to maintain and repair buses. He slipped on the surface of a board which was wet and slippery because of a spillage of coolant fluid.
Held: The defenders had failed to prove that it would have been . .
CitedGilmour v East Renfrewshire Council OHCS 5-Dec-2003
The pursuer, a teacher slipped on a potato chip on a ramp leading from the school kitchen.
Held: Given the nature of the flooring and the slope of the ramp there was a real risk of slipping, which was increased by the presence of the chip. The . .
CitedGallagher v Kleinwort Benson (Trustees) Limited and others SCS 12-Mar-2003
. .
CitedGilmour v East Renfrewshire Council SCS 29-May-2002
. .
CitedLove v North Lanarkshire Council OHCS 23-Jan-2007
. .
CitedStark v Post Office CA 2-Mar-2000
A component in a postman’s bicycle gave way even though the machine had been sensibly maintained and checked. He sought damages for his injuries.
Held: The duty imposed by the regulations was absolute, and an employee postal worker who was . .
CitedMcLaughlin v East and Midlothian NHS Trust SCS 9-May-2000
. .
CitedButler v Grampian University Hospitals NHS Trust SCS 22-May-2002
. .
CitedBruce v Ben Odeco Limited IHCS 1996
A mechanic on a drilling rig slipped because of grease on the floor.
Held: This was a transient condition which was not the result of a lack of maintenance of the structure of the floor itself.
Lord Clyde said: ‘Within the context of . .
CitedGreen v Yorkshire Traction Company Ltd CA 5-Dec-2001
Mr Green was a bus driver who slipped on the step of his bus. Passengers had dripped rainwater on the step. Counsel for Mr Green referred to article 5(1) of the Framework Directive which states: ‘The employer shall have a duty to ensure the safety . .
CitedEnglish v North Lanarkshire Council SCS 22-Jan-1999
The application of the phrase ‘work equipment’ is to protect the workman using such equipment. This might embrace routine maintenance or cleaning or even minor repairing while the machine is operating. The 1998 Regulations should not be interpreted . .
CitedCommission v United Kingdom (Social Policy) ECJ 18-Jan-2007
The Commission sought a declaration that, by restricting the duty of employers to care for the health and safety of their employees ‘so far as reasonably practicable’, the United Kingdom had failed to fulfil its obligations under article 5(1) and . .

Lists of cited by and citing cases may be incomplete.

Health and Safety

Updated: 01 November 2021; Ref: scu.374740

McDonald v National Grid Electricity Transmission Plc: SC 22 Oct 2014

Contact visiting plants supported asbestos claim

The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had failed to comply with the 1931 Regulations.
Held: The appeal by National Grid *Reed and Neuberger LL dissenting) and cross appeal by Mrs McDonald (Hale L dissenting) were both dismissed. The 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition: ‘The words in section 47(1), ‘a process’ carried on in any factory should be given their plain and natural meaning. To suggest that they import some intimate connection with the manufacture of a product introduces an unnecessary and unwarranted gloss on the subsection. If it is a process that is a normal feature of the factory’s activity, it is a process for the purposes of the legislation. I would therefore hold that the lagging work which Mr McDonald encountered in the power station constituted a process for the purposes of section 47 and that the first condition necessary to show breach of subsection (1) of that section has been met.’
As to the cross appeal, while the rest of the statutory criteria were met, the evidence did not rebut the conclusion that the exposure to asbestos had not been in the form of a ‘substantial quantity of dust’ given off by the mixing process as was required by s. 47(1) of the 1937 Act.

Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Reed
[2014] WLR(D) 439, [2014] UKSC 53, UKSC 2013/0263, [2014] ICR 1172, [2014] 3 WLR 1197
WLRD, Bailii, Bailii Summary
Asbestos Industry Regulations 1931 2(a), Factories Act 1937 47
England and Wales
Citing:
CitedShell Tankers UK Limited v Jeromson; The Cherry Tree Machine Company Limited, Shell Tankers UK Limited v Dawson CA 2-Feb-2001
The claimant’s husband had been employed as an apprentice fitter in a factory which manufactured dry cleaners’ presses. For two years, it was part of his job to mix asbestos flock with water in a bucket and then apply it to the plattens of a press . .
Appeal fromMcDonald v Department for Communities and Local Government and Another CA 6-Nov-2013
The claimant was a lorry driver making collections from a power station. On his visits, he visited areas where asbestos sludge was being used. He contracted mesothelioma, and now sought damages. The defendants replied that he was not a worker at the . .
CitedAsociatia Accept v Consiliul National Pentru Combaterea Discriminarii ECJ 25-Apr-2013
ECJ Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Articles 2(2)(a), 10(1) and 17 – Prohibition of discrimination on grounds of sexual orientation – Concept of ‘facts from . .
CitedWatt v Fairfield Shipbuilding and Engineering Company Limited and Upper Clyde Shipbuilders Ltd and Energy and Marine (Weirside) Limited SCS 3-Nov-1998
The pursuer sought reparation against three former shipbuilders. He had developed extensive bilateral pleural plaques and asbestosis.
Held: Lord Gill felt that it was possible to give the proviso a satisfactory meaning, notwithstanding his . .
CitedCanadian Pacific Steamships Ltd v Bryers HL 1957
A regular member of a ship’s crew was injured when the ship was in dry dock. The Court of Appeal had held that the Regulations applied even though he was not emplyed by the appellant company.
Held: Affirmed. The power contained in section 79 . .
CitedBrophy v J C Bradfield and Co Ltd CA 1955
Singleton LJ said as to regard to section 47: ‘That section again deals with work rooms and with processes carried on in the factory. For the reason I have given with regard to section 4(1) I do not think that section 47(1) applies to the facts of . .
CitedBanks v Woodhall Duckham and Others CA 30-Nov-1955
The plaintiff had been employed by the first defendant as a pipe fitter at two steel works occupied and operated by predecessors of the second defendant. He had worked two years at each of the sites erecting pipes, breaking into old pipes and . .
CitedNurse v Morganite Crucible Ltd HL 1989
The House considered what was meant by the term ‘process’ in the Act and the Regulations. The point of law certified was ‘Whether for the purposes of the Factories Act 1961 and Regulations thereunder ‘process’ carried on in a factory means a . .
ApprovedOwen v IMI Yorkshire Copper Tube QBD 15-Jun-1995
Buxton J explained the decision in Brophy, on the basis that when the fumes came from the factory heating supply and not from any part of the manufacturing process it was not a part of the process carried on in the factory.
The protection . .
CitedHarrison v National Coal Board HL 1951
The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance . .
CitedMassey-Harris-Ferguson (Manufacturing) Ltd v Piper QBD 1956
‘persons employed’ where that expression was used in section 60 of the 1937 Act included not only servants of the occupier, but any other person who might be called on to do work in the factory, including a painter employed by an independent . .
CitedGroves v Lord Wimborne CA 1898
The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for . .
CitedHartley v Mayoh and Co 1954
The expression ‘persons employed’ does not extend to a fireman who enters a factory in order to put a fire out, though the occupier may well have a duty to warn firemen of an unexpected danger or trap of which he knows or ought to know. . .
CitedRichards v Highway Ironfounders (West Bromwich) Ltd CA 1955
The plaintiff was found to have had to work in clouds of silica dust. . .
CitedGregson v Hick Hargreaves and Co Ltd CA 1955
The plaintiff suffered illness having inhaled noxious particles of silica which formed part of a substantial quantity of dust given off by a process. The presence of the silica, and its harmfulness, had not been known at the time.
Held: The . .
CitedNash v Parkinson Cowan Ltd 1961
. .
CitedWigley v British Vinegars Ltd HL 1964
A window cleaner employed by an independent contractor was injured at the factory.
Held: There is nothing new in construing legislation designed for the protection of workers as inapplicable to other visitors to the relevant premises. Viscount . .
CitedUddin v Associated Portland Cement Manufacturers Ltd CA 1965
Mr Uddin, the plaintiff was a machinery attendant in a cement grading and packing factory. He wanted to catch a pigeon sitting behind the revolving shaft of a machine. He climbed a vertical steel ladder to a platform where he knew he was not . .
CitedGrant v National Coal Board HL 1956
The House considered the effect of a statutory provision that: ‘the roof and sides of every travelling road, outlet and working place shall be made secure’
Held: Lord Reid said: ‘I cannot see why it should matter just how the accident was . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Leading Case

Updated: 01 November 2021; Ref: scu.537831

Imperial Chemical Industries Ltd v Shatwell: HL 6 Jul 1964

The respondent was employed as a shot firer in a quarry, and was to test the electric wiring connecting explosive charges. Contrary to instructions that testing must be done from a shelter, the respondent and another shot firer carried out a test in the open and they were both injured.
Held: The employer’s appeal succeeded. Where two fellow-servants combined to disobey an order deliberately though they knew the risk involved, a plea of volenti non fit injuria was a complete defence if the employer was not himself at fault and was only liable vicariously for the acts of the fellow servant. The House emphasised the distinction between lack of care for one’s own safety and the true acceptance of risk. A plaintiff’s conduct cannot be described as voluntary unless he truly had a free choice.
The House considered the origins of the doctrine of vicarious liability: ‘The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice’, and ‘an employer who is himself at fault in persistently refusing to comply with a statutory rule could not possibly be allowed to escape liability because the injured workman had agreed to waive the breach.’
Lord Reid said that though ‘. . an employer who is himself at fault in persistently refusing to comply with a statutory rule could not possibly be allowed to escape liability because the injured workman had agreed to waive the breach.’, ‘It was argued that in this case it has not been shown that George [Shatwell] had a full appreciation of the risk. In my view it must be held that he had. He knew that those better qualified than he was took the risk seriously. He knew that his employers had forbidden this practice and that it had then been prohibited by statutory regulation. And he knew that his employers were taking strong measures to see that the order was obeyed. If he did not choose to believe what he was told I do not think that he could for that reason say that he did not fully appreciate the risk. He knew that the risk was that a charge would explode during testing, and no shot firer could be in any doubt about the possible consequences of that.’
Lord Pearce: ‘The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice’. And ‘I am not persuaded that there is any reason of principle or policy which can be of substantial guidance in the resolution of the problem of applying the rule in any particular case. Theory may well justify the existence of the concept, but it is hard to find guidance from any underlying principle which will weigh in the decision whether in a particular case a particular wrongful act by the employee should or should not be regarded as falling within the scope of the employment.’
and ‘Since contributory negligence has ceased to be a total defence and it has become possible to produce a fair result by apportionment, the reluctance to find the total defence of volenti non fit injuria became more marked …’
and ‘Where Parliament has laid down that certain precautions shall be taken by the master to protect his workman, the master is not and should not be entitled to neglect those precautions and then rely on an expressed or implied agreement between himself and the workman that the latter, if injured as a result of the neglect, will bear the loss alone.’
Viscount Radcliffe: ‘These considerations apart, there are involved in this case questions as to the application of the maxim volenti non fit injuria and as to the principle that in the eyes of the law a man cannot be treated as having disavowed a statutory protection enacted for his benefit in the public interest. On these points, I have had the opportunity of studying in advance the opinions of your Lordships, and I wish to associate myself in particular with the opinion to be delivered by my noble and learned friend, Lord Pearce. I do think it of great importance that the law should not in general allow a person to disqualify himself from the protection of a statutory duty imposed for his benefit, where there is any element of public advantage in upholding the duty. But I do not think that this is a case in which that principle applies.’ and
‘My Lords, it helps sometimes to assess the merits of a decision if one starts by noticing its results and only after doing that allots to it the legal principles upon which it is said to depend.’
Lord Hodson said that a plaintiff’s conduct cannot be described as voluntary unless he truly had a free choice.

Lord Pearce, Lord Hodson, Viscount Radcliffe
[1964] 2 All ER 999, [1964] UKHL 2, [1965] AC 656
Bailii
England and Wales
Citing:
CitedYarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .

Cited by:
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
CitedCommissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 11-Feb-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedWhite v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Health and Safety

Leading Case

Updated: 01 November 2021; Ref: scu.189975

Fairchild v Glenhaven Funeral Services Ltd and Others: HL 20 Jun 2002

The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the condition. The claimants appealed dismissal of their claim.
Held: It is for a claimant to prove that a defendant’s breach of duty caused the loss for which he claims. The situation as it stood created substantial injustice. The Court of Appeal had applied the conventional test of whether it could be shown that the condition would not have been suffered but for the employment. The overall object of tort law was to define cases in which the law might justly hold one party liable to compensate another. This case raised inconsistent policy considerations. In such circumstances justice could only be served by holding both possible sources of the disease responsible.
Lord Bingham said: ‘In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which claims and to do so by showing that but for the breach he would not have suffered the damage.’
Lord Nicholls of Birkenhead spoke of new departures in the law: ‘To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law.’

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry
Times 21-Jun-2002, [2002] UKHL 22, [2003] 1 AC 32, [2002] Lloyds Rep Med 361, [2002] 3 All ER 305, [2002] PIQR P28, (2002) 67 BMLR 90, [2002] 3 WLR 89, [2002] ICR 798
House of Lords, Bailii
England and Wales
Citing:
CitedMcGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
ApprovedWilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
ApprovedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Appeal fromFairchild v Glenhaven Funeral Services Ltd and Others, Dyson and Another v Leeds City Counci CA 11-Dec-2001
Where a claimant suffered mesothelioma, contracted whilst working with asbestos, but the disease may have been contracted from inhalation at different times, and with different employers, his claim must fail since it was not possible to identify . .
CitedChapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
CitedEmpress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
CitedRahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
CitedNicholson v Atlas Steel Foundry and Engineering Co Ltd HL 1957
The deceased had worked in the defender’s steel foundry, inhaling there siliceous dust particles. He contracted pneumoconiosis and died. The complaints related to the defender’s failure to provide adequate ventilation to extract the dust. The . .
CitedGardiner v Motherwell Machinery and Scrap Co Ltd HL 1961
The pursuer had worked for the defenders for three months, demolishing buildings, and had contracted dermatitis. He claimed that they had not provided him with adequate washing facilities and that failure caused the dermatitis. On appeal the . .

Cited by:
CitedSix Continents Retail Ltd v Carford Catering Ltd, R Bristoll Ltd CA 5-Nov-2003
The claimant’s premises had been destroyed by fire. They sought damages from the designers for negligence. . .
CitedCoudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
CitedDonachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
CitedChester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedRothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
CitedAD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
CitedBarker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
CitedBrett v University of Reading CA 14-Feb-2007
The deceased’s personal representative sought damages after the death from mesothelioma after working for the defendant for many years. . .
CitedRolls Royce Industrial Power (India) Ltd v Cox CA 22-Nov-2007
The claimant was the widow of a man who died from mesothelioma after alleged asbestos contamination working for the appellant. The defendant appealed on liability saying that there was insufficient evidence of causation since there was little to . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
CitedEnvironment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
CitedSanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
CitedWootton v J Docter Ltd and Another CA 19-Dec-2008
The claimant sought damages saying that the contraceptive pill dispensed by the defendant was not the one prescribed by her doctor, and that she had become pregnant and suffered the losses claimed namely care, expenses and loss of earnings flowing . .
CitedHalsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
CitedSienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
AppliedWillmore v Knowsley Metropolitan Borough Council QBD 24-Jul-2009
The claimant sought damages for personal injury, saying that she had now contracted mesolthelioma having been exposed to asbestos whilst a pupil at a school run by the defendant’s predecessors.
Held: The authority was liable. . .
CitedSutton v Syston Rugby Football Club Ltd CA 20-Oct-2011
Rugby Field Inspection Adequate not detailed
The claimant was injured training for rugby. His knee was hurt by a sharp object left behind by previous users, but almost hidden. He said that the defendants were negligent in not having inspected the pitch before training. The club appealed saying . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedEmployers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
CitedEmployers’ Liability Policy ‘Trigger’ Litigation; Durham v BAI (Run off) Ltd etc QBD 21-Nov-2008
The court heard six claims against companies restored to the register of companies to make claims under their insurance policies for personal injury in the form of death from mesothelioma from asbestos, and particularly whether liability could be . .
CitedEmployers’ Liability Insurance ‘Trigger’ Litigation, Re CA 8-Oct-2010
Companies restored to the register, and the personal representatives of former employees, appealed against rejection of their claims from the insurers of the former companies for damages from mesothelioma following exposure to asbestos during . .
CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
CitedCampbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Leading Case

Updated: 01 November 2021; Ref: scu.174011

Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar: HL 17 Oct 2007

The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but signalled the presence of asbestos in the lungs. The employer appealed a finding of liability.
Held: The claims for damages failed. Since pleural plaques caused no symptoms, did not increase susceptibility to other asbestos-related diseases or shorten life expectancy, their mere presence in the claimants’ lungs did not constitute an injury which was capable of giving rise to a claim for damages.
Lord Hope said: ‘while the pleural plaques can be said to amount to an injury or a disease, neither the injury nor the disease was in itself harmful. This is not a case where a claim of low value requires the support of other elements to make it actionable. It is a claim which has no value at all. Pleural plaques are a form of injury. But they are not harmful. They do not give rise to any symptoms, nor do they lead to anything else which constitutes damage. Furthermore it is not possible to bring the risks of developing a harmful disease into account by applying the ordinary rules of causation. The risks are no doubt due to the same exposure to asbestos. But they are not created by, or in any way contributed to, by the pleural plaques.’
Lord Hoffmann said: ‘Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. ‘

Lord Hoffmann,Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance
[2007] UKHL 39, Times 24-Oct-2007, [2007] ICR 1745, [2007] 4 All ER 104, [2008] LS Law Medical 1, [2007] 3 WLR 877, (2008) 99 BMLR 139, [2008] 1 AC 281, [2008] PIQR P6
Bailii
Supreme Court Act 1981 32A
England and Wales
Citing:
CitedChurch v Ministry of Defence QBD 23-Feb-1984
The 62 year old claimant sought damages after working in in the defendant’s dockyard and being exposed to asbestos. Pleural plaques were apparent on X-ray and the pleura would constrict the lung and induce breathlessness; and the asbestos must have . .
CitedSykes v Ministry of Defence QBD 19-Mar-1984
The claimant was exposed to asbestos whilst working for the defendant in the naval dockyard at Portsmouth, and sought damages having developed pleural plaques, but no further damage was expected, save ‘a slightly increased risk of developing a lung . .
CitedCartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
CitedPatterson v Ministry of Defence QBD 29-Jul-1986
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage . .
CitedBrunsden v Humphrey CA 1884
The defendant had negligently caused damage to a cab driver and his vehicle in the same accident. The cab driver obtained damages for the damage to his vehicle.
Held: He was not disentitled from bringing fresh proceedings for damages for . .
CitedMcLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
CitedHicks v Chief Constable of the South Yorkshire Police HL 5-Mar-1992
The plaintiffs sought damages after watching television scenes of the football match at Hillsborough at which their two daughters died after disorder.
Held: Neither the risk of future injury nor anxiety at the prospect of future injury is . .
Appeal fromRothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
CitedSutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
CitedBarber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedHughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedJolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
CitedBourhill v Young’s Executor HL 5-Aug-1942
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been . .
CitedPage v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
CitedMeikle v Sneddon 1862
The pursuers sought damages for the wrongful arrestment of their ship. They claimed andpound;500 as solatium for injury to their feelings. But the only loss that had been actually sustained was the sum required to relieve the vessel from the . .
CitedStrang v Steuart 1864
The court lamented the amount of court time that had been taken by foolish and absurd litigation about a hedge and ditch which separated the parties’ properties. Nevertheless that it was the duty of the court to deal with the case: ‘We are not . .
CitedWood v Carwardine 2-Jan-1923
The court held that trivial services, the amount of which could be measured, did not amount to ‘attendance’ within the meaning of section 12(2)(i) of the 1920 Act. The rule had to be applied with robust vigour in favour of the tenant unless the . .
CitedWilkes v Goodwin CA 1923
The supply of a cup of tea to a tenant each morning is not sufficient to constitute ‘board’ so as to take the tenancy out of statutory protection. . .
CitedCreutzfeld Jakob Disease Litigation; Newman and Others v Medical Research Council and Another CA 20-Dec-1997
The claimants had been negligently injected as children with Hartree HGH, a human growth hormone that exposed them to the risk of contracting CJD. One issue was whether this rendered the defendants liable for psychiatric illness caused by the shock . .
CitedWhite, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
CitedLynch v Knight HL 17-Jul-1861
Lord Wensleydale said: ‘Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where material damage occurs, and is connected with it, it is impossible a jury, in . .
CitedWatson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
CitedSimmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
CitedThe Law Society v Sephton and Co and others ChD 2004
The Law Society claimed in negligence against the defendant firm of accountants who had wrongly certified the accounts of a firm of solicitors. The Society sought to recover the payments it had made from its compensation fund. The defendant pleaded . .
CitedBrown v North British Steel Foundry Ltd OHCS 1968
The 1954 Act passed on 4 June 1954 but was not to affect any action or proceeding if the cause of action arose before that date. The Lord Ordinary found that the pursuer who sought damages for pneumoconiosis did not begin to suffer from until 1955. . .
At first instanceRothwell v Chemical and Insulating Co Ltd and Another QBD 15-Feb-2005
The claimant had been exposed to asbestos whilst employed by the defendant and sought damages for the pleural plaques which had developed as a consequence. The defendant replied that such plaques and pleural thickening were not a sufficient injury . .
Appeal fromGrieves and others v Ft Everard and Sons and British Uralite Plc and others QBD 15-Feb-2005
Each of the claimants sought damages alleging that having been negligently exposed to asbestos in their working lives, they had developed pleural plaques which had arisen from the ingestion of asbestos.
Held: The court could infer permanent . .

Cited by:
CitedCalvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
CitedFlood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
CitedD Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
CitedAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
axaReSCS201
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
AppliedWright v Stoddard International Plc and Another (No 2) SCS 23-Oct-2007
(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway. . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedDryden and Others v Johnson Matthey Plc SC 21-Mar-2018
Sensitisation to salt can be personal injury
The claimants, had developed platinum salt sensitisation due to the defendant employer’s breach of health and safety regulations and common law duty, claimed a cause of action for personal injury. Platinum salt sensitisation is, in itself, an . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.259905

Smith v Northamptonshire County Council: HL 20 May 2009

The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The test was whether the equipment was sufficiently incorporated into and adopted as part of the employer’s undertaking. If control was any sort of guide to the scope of regulation 3(2), it could only be in the sense of control over the work equipment. In this case that had not been established. The employer had no right to repair the equipment, it was neither theirs and nor was it under their control. Their inspection of the ramp did not change this. If the inspection had revealed a defect which was ignored they might have been liable in negligence but that situation did not in fact arise.

Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance and Lord Neuberger of Abbotsbury
[2009] UKHL 27, Times 21-May-2009, [2009] 4 All ER 557, [2009] 1 WLR 2353, [2009] All ER (D) 170
Bailii
Provision and Use of Work Equipment Regulations 1998
England and Wales
Citing:
Appeal fromSmith v Northamptonshire County Council CA 11-Mar-2008
The claimant was employed as a care worker to collect patients to take them to a day centre. She was injured when a wheelchair ramp in a patient’s home collapsed.
Held: The council were not responsible under the Regulations. They did not own . .
CitedStark v Post Office CA 2-Mar-2000
A component in a postman’s bicycle gave way even though the machine had been sensibly maintained and checked. He sought damages for his injuries.
Held: The duty imposed by the regulations was absolute, and an employee postal worker who was . .
CitedSmith v Cammell Laird and Co Ltd HL 1940
The Regulations imposed an absolute obligation from the words ‘all staging . . shall be maintained.’ Lord Atkin said: ‘It is precisely in the absolute obligation imposed by statute to perform or forbear from performing a specified activity that a . .
CitedNimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
CitedMillar v Galashiels Gas Co Ltd; Galashiels Gas Company Ltd v O’Donnell HL 20-Jan-1949
A hoist mechanism failed, the employee was injured, and he sought damages from his employer under the Act.
Held: The section imposes an absolute obligation to maintain work equipment in an efficient state or in efficient working order. The . .
CitedHamilton v National Coal Board HL 1960
A duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists.
Lord Jenkins said: ‘Were it not for the . .
CitedHammond v Commissioner of Police for Metropolis and others CA 11-Jun-2004
The claimant mechanic was employed by the Commissioner of Police. He was working on the wheel of a police dog van when the shearing of a wheel bolt caused him to suffer injury. The question was whether the van was ‘work equipment’ within the meaning . .
CitedPRP Architects v Reid CA 28-Jul-2006
A lift was held to be work equipment within the Regulations. . .
CitedSpencer-Franks v Kellogg Brown and Root Ltd and others HL 2-Jul-2008
The deceased worked for the defendants on an oil rig. He was injured by a door closer he was attempting to repair. The defendants denied that the mechanism was equipment within the Regulations.
Held: The appeal was allowed. The door closer was . .
CitedMason and Another v Satelcom Ltd and East Potential Ltd CA 14-May-2008
The claimant was replacing a computer memory card. He fell from a ladder suffering injury. He was employed by the defendant contracting for another defendant, and used a ladder on loan from another neighbour.
Held: The contribution sought from . .
CitedCouzens v T McGee and Co Ltd CA 19-Feb-2009
The driver appealed against refusal of his claim for damages. As a driver, he also used a makeshift tool. He said that his employers provided no proper place for it to be kept, so he placed in in a side pocket of his cab. It fell out and prevented . .
CitedArmstrong, Whitworth and Co Ltd v Redford HL 1920
Lord Wrenbury said: ‘I have long since abandoned the hope of deciding any case upon the words ‘out of and in the course of’ upon grounds satisfactory to myself or convincing to others’. . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Personal Injury

Updated: 01 November 2021; Ref: scu.346225

General Cleaning Contractors Ltd v Christmas: HL 1953

It is the duty of the employer to consider the situation, devise a suitable system and instruct his employees what they must do and to provide appropriate equipment. In leaving it to individual workmen to take precautions against an obvious danger, the employers had failed to discharge their duty to provide a reasonably safe system of work.
Lord Oaksey said: ‘In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.
The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain. If the possibility is faced the risk is obvious. If both sashes are closed there is no longer the handhold by which the workman steadies himself. If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe. But the problem is one for the employer to solve and should not, in my opinion, be left to the workman. It can be solved by general orders and the provision of appropriate appliances.’
Lord Reid said: ‘The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out. On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not a sufficient answer. Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required.’

Lord Oaksey, Lord Read
[1952] 1 KB 141, [1953] AC 180, [1952] 2 All ER 1110
England and Wales
Cited by:
AppliedBarnes v Stockton-On-Tees Borough Council CA 29-Oct-1997
The claimant was injured at work at a swimming pool. As he and other members of staff tidied away a wet inflatable slide, he slipped and fell, suffering serious injury.
Held: ‘it was necessary for the employers to have laid down a system to . .
CitedFlood v The University Court of the University of Glasgow OHCS 8-Jul-2008
The pursuer, a college lecturer claimed damages for stress related injury suffered as a result of overwork. She had communicated with her managers many times about the overload. Other staff had resigned for similar reasons.
Held: The pursuer . .
CitedAmmah v Kuehne Nagal Logistics Ltd CA 22-Jan-2009
The claimant appealed dismissal of his claim for damages. He had been injured removing a pamphlet from a high shelf, having stood on an upturned plastic box. A riser had been provided, and the employer’s manual told employees not to stand on such . .

Lists of cited by and citing cases may be incomplete.

Health and Safety

Leading Case

Updated: 01 November 2021; Ref: scu.187943

Regina v Porter: CACD 19 May 2008

Everyday risks may be outwith Health and Safety

The defendant appealed against his conviction under the 1974 Act. He was headmaster at a private school. A child of three jumped from steps in the playground injured his head and was taken to hospital where he contracted MRSA and died.
Held: His appeal was allowed. The essence of the offence required it to be shown that the defendant had not done enough to ensure that the child was not exposed to risks by virtue of his conduct of the business. The fact that this was an everyday risk was a relevant to the question of whether the risk was incurred by virtue of the conduct of the operation. This was not a risk of the sort contemplated by the statute. Only once risk was established did the issue of whether reasonably practicable measures had to be taken.
Moses LJ said: ‘How then is the line to be drawn between those risks which are real and those which are hypothetical? It does not suffice merely to say that that must be left to the good sense of the jury . . There is no objective standard or test applicable to every case by which the line may be drawn. But in most, if not every, case there will be one way or the other important indicia — factors — which the jury are obliged to take into account to determine whether the risk is real or fanciful. None of them is determinative; but many (depending on the facts of any particular case) will be of importance. For example, the absence of any previous accident in circumstances which occur day after day will be highly relevant. That was a relevant feature in the instant case. The factors which led to this tragic incident must have replicated themselves over and over again throughout the years, but no child fell in such a way as to injure himself as the evidence seems to prove. Furthermore, no previous accident occurred despite the same allegedly inadequate level of supervision. There will have been countless times when a child moved, unsupervised, up or down those steps, or chose to jump from one level to another, without any previously recorded accident. Further, there was nothing wrong with the construction of the steps themselves. No allegation was made as to how they might have been better constructed so as to avoid an incident such as this. Moreover, there had been no previous accident elsewhere in the playground, despite the fact that in these two playgrounds there were numerous places from which a child might choose to jump. There were other flights of steps and other jumping places, including a raised bed on the upper level of the playground, a fire escape (which complied with fire regulations and was external to the building), and many walls. None of those had caused any problem, or come to the attention of any concerned governor, parent or teacher.’

Moses LJ, Beatson LJ, Sir Richard Curtis
[2008] ICR 1259, [2008] EWCA Crim 1271, Times 09-Jul-2008
Bailii
Health and Safety at Work etc Act 1974 3(1)
England and Wales
Citing:
CitedRegina v Board of Trustees of the Science Museum CA 26-May-1993
The appellants were convicted of failing to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, persons not in their employment were not exposed to risks to their health and safety. One of their buildings . .
CitedChargot Ltd (T/A Contract Services) and Others, Regina v CACD 13-Dec-2007
The defendant company appealed against its conviction under the 1974 Act after a driver was buried under the load when his truck overturned on a work-site.
Held: The appeal failed. The policy of the 1974 Act was to impose a positive burden on . .

Cited by:
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .

Lists of cited by and citing cases may be incomplete.

Crime, Health and Safety

Updated: 01 November 2021; Ref: scu.269924

Howlett v Royal Mail Group Ltd: EAT 28 Jan 2014

EAT Health and Safety – The Claimant was employed as a Royal Mail engineer but in 2012 became a ‘full-time’ health and safety rep. The issue was whether he was entitled under Schedule 2 to the Safety Representatives and Safety Committees Regulations 1977 to be paid in lieu of Sunday overtime which was normally available to engineers. On a proper construction of the Regulations he was only entitled to be paid for time he was given off, which on the Employment Tribunal’s findings was the normal working week days. It remained open to him to work on a Sunday as an engineer and receive the overtime payment for that work.

Shanks HHJ
[2014] UKEAT 0368 – 13 – 2801
Bailii
Safety Representatives and Safety Committees Regulations 1977
England and Wales

Employment, Health and Safety

Updated: 01 November 2021; Ref: scu.527193

Todd and Others v Adams and Another: CA 18 Apr 2002

The boat owners had failed to comply with the 1975 safety rules, and seamen died. The boat owners relied upon the restriction on damages in the 1995 Act, and the seamen’s families argued that the failure to apply the safety rules removed that limitation.
Held: A breach of the safety rules did not give rise to a separate cause of action for damages against the ship owners. The system for certifying vessels would sit uneasily with any other interpretation, and a criminal remedy was also provided for. The court distinguished between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts.
Mance LJ said: ‘With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of ‘review’ may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment-such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was ‘wrong’ and to ‘draw any inference of fact which it considers justified on the evidence’ indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellant court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. . In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.’
Neuberger J stressed that the question whether there was a contract of service on the facts involved the weighing up of a series of factors.

Lord Justice Thorpe, Lord Justice Mance and Mr Justice Neuberger
Times 03-May-2002, Gazette 23-May-2002, [2002] 2 Lloyds Law Rep 293, [2002] 2 All ER (Comm) 1
Merchant Shipping Act 1995 185(1), Fishing (Safety Provisions) Rules 1975 (SI 1975 No 330) 16
England and Wales
Cited by:
DistinguishedZiemniak v ETPM Deep Sea Ltd CA 7-May-2003
A seaman was injured taking part in a safety drill aboard ship. The defendant had been found not to be negligent, but the claimant alleged breach of statutory duty under the Regulations.
Held: Groves v Wimborne clearly established that . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .

Lists of cited by and citing cases may be incomplete.

Transport, Health and Safety, Damages, Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.170213

Groves v Lord Wimborne: CA 1898

The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for breach of statutory duty.
Vaughan Williams LJ said: ‘it cannot be doubted that, where a statute provides for the performance by certain persons of a particular duty, and some one belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty.’ and ‘In such a case as this one must, as Lord Cairns said in Atkinson v. Newcastle Water Works Co. (1877) 2 Ex.D. 441, look at the general scope of the Act and the nature of the statutory duty; and in addition one must look at the nature of the injuries likely to arise from a breach of that duty, the amount of the penalty imposed for a breach of it, and the kind of person upon whom it is imposed, before one can come to a proper conclusion as to whether the legislature intended the statutory remedy to be the only remedy for breach of the statutory duty.’
Smith LJ described the Act as ‘A public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit’. He said: ‘Could it be doubted that if section 5 stood alone, and no fine were provided by the Act for contravention of its provisions, a person injured by a breach of the absolute and unqualified duty imposed by that section would have a cause of action in respect of that breach? Clearly it could not be doubted.’ and ‘In dealing with the question whether this was the intention of the Legislature it is material . . to consider for whose benefit the Act was passed, whether it was passed in the interests of the public at large or in those of a particular class of persons. The Act now in question, as I have said, was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform certain statutory duties for their protection and benefit.’ and ‘That it cannot have been the intention of the Legislature that the provision which imposes upon the employer a fine as a punishment for neglect of his statutory duty should take away the prima facie right of the workman to be fully compensated for injury occasioned to him by that neglect.’
Rigby L.J said: ‘The provisions of section 5 are intended for the protection from injury of a particular class of persons, who come within the mischief of the Act. The plaintiff is one of those persons, the possibility of injury to whom through neglect to fence ”machinery the section contemplates. That being so, the only question seems to be whether the provisions of the Act with regard to the imposition of fines for neglect of the duty created by the section reasonably lead to the conclusion that the Legislature intended that such fines should be the only remedy for breach of that duty. I think that, when those provisions are examined, it is impossible to arrive at that conclusion. The maximum fine that can be imposed in any case, however serious the injury may be, is one of pounds 100. It seems monstrous to suppose that it was intended that in the case of death or severe mutilation arising through a breach of the statutory duty, the compensation to the workman or his family should never exceed pounds 100. Again, section 82 does not provide that the fine imposed under it shall necessarily go to the workman if he be injured, or to his family if he be killed; but only that the Secretary of State may, if he thinks fit, order that the fine or part of it shall do so . . Looking at the purview of the whole Act, I cannot think it reasonable to suppose that the Legislature intended the penalty imposed by section 82 to be the only remedy for injury occasioned by breach of the absolute statutory duty created by the Act.’

Smith LJ, Vaughan Williams LJ, Rigby LJ
(1898) 79 LT 284, (1898) 67 LJQB 862, [1898] 2 QB 402
Factory and Workshops Act 1891 5
England and Wales
Cited by:
AppliedZiemniak v ETPM Deep Sea Ltd CA 7-May-2003
A seaman was injured taking part in a safety drill aboard ship. The defendant had been found not to be negligent, but the claimant alleged breach of statutory duty under the Regulations.
Held: Groves v Wimborne clearly established that . .
CitedButler (or Black) v Fife Coal Co, Ltd HL 19-Dec-1911
The court considered whether a civil remedy existed for breach of statutory duty. Lord Kinnear said: ‘If the duty be established, I do not think there is any serious question as to civil liability. There is no reasonable ground for maintaining that . .
CitedFytche v Wincanton Logistics Plc HL 1-Jul-2004
The claimant was employed as a milk truck driver. He was issued with a pair of boots capped to protect his feet from impact. In a snowstorm, and against company advice, he sough to dig himself out. The boots leaked and he suffered frostbite. He . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedMcDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .
CitedCampbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .

Lists of cited by and citing cases may be incomplete.

Health and Safety

Leading Case

Updated: 31 October 2021; Ref: scu.182397

Chargot Limited (T/A Contract Services) and Others, Regina v: HL 10 Dec 2008

The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of injury arose out of the state of affairs at the place of work, and need not point to a specific breach of any duty. It was then for the employer to establish any exception. The jury had accepted the case for the prosecution, which was that he was directly involved in the works and that the way they were carried on was subject to his specific instructions and control. The appeal failed.

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Brown of Eaton-under Heywood, Lord Neuberger of Abbotsbury
[2008] UKHL 73, [2009] 1 WLR 1, [2009] 2 All ER 645, [2009] ICR 263
Bailii, HL, Times
Health and Safety at Work etc Act 1974
England and Wales
Citing:
CitedChargot Ltd (T/A Contract Services) and Others, Regina v CACD 13-Dec-2007
The defendant company appealed against its conviction under the 1974 Act after a driver was buried under the load when his truck overturned on a work-site.
Held: The appeal failed. The policy of the 1974 Act was to impose a positive burden on . .
CitedNimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
CitedLockhart v Kevin Oliphant Ltd HCJ 1993
One of the company’s employees was electrocuted and died when a street lamp he was erecting touched an overhead power line. It was charged with a contravention of sections 2(1) and (2) and 33(1)(a) of the 1974 Act. The sheriff acquitted the . .
CitedRegina v Board of Trustees of the Science Museum CA 26-May-1993
The appellants were convicted of failing to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, persons not in their employment were not exposed to risks to their health and safety. One of their buildings . .
CitedCommission v United Kingdom (Social Policy) ECJ 18-Jan-2007
The Commission sought a declaration that, by restricting the duty of employers to care for the health and safety of their employees ‘so far as reasonably practicable’, the United Kingdom had failed to fulfil its obligations under article 5(1) and . .
CitedAdamson T/A John Adamson and Sons v Procurator Fiscal, Lanark HCJ 31-Oct-2000
The appellant farmers were charged with a contravention of section 3(1) in respect that they failed to ensure that an Ayrshire bull which they kept in a field and attacked a man who was working on the grass verge of an adjacent public highway was . .
CitedRegina v Brown (K) CACD 1984
Jury Directions: Common Element in Several Charges
The defendant was accused of fraudulently inducing the investment of money. inducing four people to acquire shares in a company by making misleading statements. The particulars given in the count identified five statements allegedly made by him in . .
CitedRegina v Porter CACD 19-May-2008
Everyday risks may be outwith Health and Safety
The defendant appealed against his conviction under the 1974 Act. He was headmaster at a private school. A child of three jumped from steps in the playground injured his head and was taken to hospital where he contracted MRSA and died.
Held: . .
CitedSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedRegina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
CitedDavies v Health and Safety Executive CACD 18-Dec-2002
The court considered whether the reverse burden of proof in a statute creating offences is compatible with the presumption of innocence enshrined in Article 6(2) of the ECHR. The judge had ruled against a submission that section 40 was not . .
CitedWotherspoon v HM Advocate 1978
The Lord Justice General set out the requirements to establish an offence under section 37(4) of the Act. Where the officer of the company had no actual knowledge of the breach of the regulations, the question was whether he should have been put on . .
CitedAttorney General’s Reference (No 1 of 1995); Regina v B; Regina v F CACD 30-Jan-1996
The offence of accepting an unauthorised deposit requires both knowledge of the act and an agreement to it. Where ‘consent’ is alleged against him, a defendant has to be proved to know the material facts which constitute the offence by the body . .
CitedRegina v P Ltd and Another CACD 11-Jul-2007
A child had been injured when a load fell from a fork lift truck. It was said not to have been secured as required by Health and Safety Regulations. The company was to be prosecuted. The prosecutor appealed a preliminary ruling that in order to . .
CitedBeckingham, Regina v CACD 22-Mar-2006
The court allowed the defendant’s appeal against her conviction under section 7 of the 1974 Act in relation to an outbreak of legionnaires disease traced to the cooling towers of an air-conditioning system for which she, the building owners’ . .
Appeal fromChargot Ltd (T/A Contract Services) and Others, Regina v CACD 13-Dec-2007
The defendant company appealed against its conviction under the 1974 Act after a driver was buried under the load when his truck overturned on a work-site.
Held: The appeal failed. The policy of the 1974 Act was to impose a positive burden on . .

Cited by:
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.

Health and Safety, Crime

Updated: 31 October 2021; Ref: scu.278660

Hampshire Police v Taylor: CA 9 May 2013

The officer had been cut by glass when clearing out a cannabis factory. The risk assessment had identified only a need for latex gloves. She said that given the environment heavier garden gloves should have been provided. The Chief Constable appealed against a finding against the force.
Held: The appeal failed. The finding was that there was a low but not de minimis level of risk in the cannabis factory generally. The judge was not limiting the risk to the extraction only of the plants themselves. In my view this was a perfectly proper inference. This was not a case where she had been told specifically to limit her work to taking out the cannabis plants. I can see that had that been the evidence, there would have been a much stronger case to contend that latex gloves were suitable. But it was not the evidence. On the contrary, the evidence was that the officer was one of a number of officers tasked with dismantling the factory and this could involve her carrying out the whole range of tasks involved in that activity. She might at any time run the risk of contact with sharp objects.
Elias, Patten LJJ
[2013] EWCA Civ 496, [2013] WLR(D) 171, [2013] PIQR P20, [2013] ICR 1150
Bailii, WLRD
ersonal Protective Equipment at Work Regulations 1992 4
England and Wales
Citing:
CitedThrelfall v Hull City Council CA 20-Oct-2010
The claimant appealed against rejection of his claim for personal injuries. He had been employed cleaning streets and when his hand was badly cut, complained that he should have had protective gloves.
Held: For equipment to be suitable, it . .
CitedGhaith v Indesit Company UK Ltd CA 17-May-2012
The claimant suffered a back injury lifting materials from a van during a stock take.
Held: The court considered the issue of causation under the Regulations. Longmore LJ said: ‘This is not a separate hurdle for the employee, granted that the . .
CitedFytche v Wincanton Logistics Plc HL 1-Jul-2004
The claimant was employed as a milk truck driver. He was issued with a pair of boots capped to protect his feet from impact. In a snowstorm, and against company advice, he sough to dig himself out. The boots leaked and he suffered frostbite. He . .
CitedHughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .
CitedMcWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.503505

Taylor v Fazakerley Engineering Co: 26 May 1989

Rose J
Unreported, 26 May 1989
England and Wales
Cited by:
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.440289

Couzens v T McGee and Co Ltd: CA 19 Feb 2009

The driver appealed against refusal of his claim for damages. As a driver, he also used a makeshift tool. He said that his employers provided no proper place for it to be kept, so he placed in in a side pocket of his cab. It fell out and prevented him applying the brakes leading to the accident.
Held: His claim failed. It was not conceivable that Parliament could have intended to impose strict liability on an employer in respect of an item of equipment about which he did not know and could not reasonably have been expected to know.
Lady Justice Smith
[2009] EWCA Civ 95, [2009] PIQR P14
Bailii
England and Wales
Cited by:
CitedSmith v Northamptonshire County Council HL 20-May-2009
The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.295113

HM Inspector of Health and Safety v Chevron North Sea Ltd: SC 8 Feb 2018

The inspector had issued a prohibition notice with regard to the access to a heliport on a North Sea oil rig. The court now considered whether, on a challenge to such a notice, the court was restricted to considering only knowledge available at the time of the notice.
Held: The Inspector’s appeal failed. On an appeal under section 24, the tribunal is not limited to considering the matter on the basis of the material which was or should have been available to the inspector. It is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served.
, Lord Mance, Deputy President, Lord Sumption, Lord Reed, Lord Hodge, Lady Black
[2018] UKSC 7, UKSC 2016/0166, 2018 GWD 24-307, [2018] 1 WLR 964, [2018] WLR(D) 82, [2018] ICR 490, 2018 SLT 751, [2018] 2 All ER 295, 2019 SCLR 369
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Dec 14 am Video, WLRD
Health and Safety at Work etc Act 1974
Scotland
Citing:
CitedHague (Inspector of Health and Safety) v Rotary Yorkshire Ltd CA 11-Jun-2015
Appeal against successful appeal against health and safety prohibition notice. Rotary Yorkshire were arguing for a broad interpretation of section 24 and the inspector for a more limited interpretation.
Held: Laws LJ (with whom the other . .
Appeal from Inner HouseHM Inspector of Health and Safety v Chevron North Sea Ltd SCS 29-Apr-2016
The Inspector had served an enforcement notice as to the condition of an oil rig. The operators fixed the issues identified and appealed. The court now considered whether on such an appeal it should consider only the situation at the time of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.604214

HM Inspector of Health and Safety v Chevron North Sea Ltd: SCS 29 Apr 2016

The Inspector had served an enforcement notice as to the condition of an oil rig. The operators fixed the issues identified and appealed. The court now considered whether on such an appeal it should consider only the situation at the time of the service of the notice.
Held: Lord Carloway said, considering the approach of Laws LJ in Yorkshire Rotary: ‘The fundamental problem with the approach of Laws LJ is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong. That is the essence or purpose of many appeals on the facts. In short, there is no sound basis for restricting appeals under section 24 to what would in essence be a form of judicial review of the inspector’s opinion. An appeal on the facts is a much wider concept and . . it enables an appellant to prove, using whatever competent information is available at the time of the tribunal’s hearing on the appeal, that the factual content of the notice was wrong and that, accordingly, however reasonable the inspector’s opinion was at the time, had the true facts been known, he would not have reached it.’
Lord Carloway
[2016] ScotCS CSIH – 29, 2016 GWD 14-273, 2016 SLT 561, 2016 SC 709
Bailii
Health and Safety at Work etc Act 1974 22
Scotland
Citing:
CrticisedHague (Inspector of Health and Safety) v Rotary Yorkshire Ltd CA 11-Jun-2015
Appeal against successful appeal against health and safety prohibition notice. Rotary Yorkshire were arguing for a broad interpretation of section 24 and the inspector for a more limited interpretation.
Held: Laws LJ (with whom the other . .

Cited by:
Appeal from Inner HouseHM Inspector of Health and Safety v Chevron North Sea Ltd SC 8-Feb-2018
The inspector had issued a prohibition notice with regard to the access to a heliport on a North Sea oil rig. The court now considered whether, on a challenge to such a notice, the court was restricted to considering only knowledge available at the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.564409

Hague (Inspector of Health and Safety) v Rotary Yorkshire Ltd: CA 11 Jun 2015

Appeal against successful appeal against health and safety prohibition notice. Rotary Yorkshire were arguing for a broad interpretation of section 24 and the inspector for a more limited interpretation.
Held: Laws LJ (with whom the other members of the court agreed) said: ‘the question for the inspector is whether there is a risk of serious personal injury. In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision. He or she is concerned with the prevention of injury at that time, that is the focus of the provision, which, it should be remembered, contemplates action in a possible emergency. The employment tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action.
. . To accede to [Rotary Yorkshire’s] argument would, I think, risk distorting the section 22 function. The primary question for the employment tribunal is whether the issue of the notice was justified when it was done. An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger. Section 24 is not, in my judgment, to be construed so that it may appear to call in question the propriety of a notice which it may well have been the inspector’s duty to issue at the time.’
Laws, Tomlinson, Kitchin LJJ
[2015] EWCA Civ 696
Bailii
Health and Safety at Work etc Act 1974 22
England and Wales
Cited by:
CrticisedHM Inspector of Health and Safety v Chevron North Sea Ltd SCS 29-Apr-2016
The Inspector had served an enforcement notice as to the condition of an oil rig. The operators fixed the issues identified and appealed. The court now considered whether on such an appeal it should consider only the situation at the time of the . .
CitedHM Inspector of Health and Safety v Chevron North Sea Ltd SC 8-Feb-2018
The inspector had issued a prohibition notice with regard to the access to a heliport on a North Sea oil rig. The court now considered whether, on a challenge to such a notice, the court was restricted to considering only knowledge available at the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.553845

Knowles v Liverpool City Council: CA 2 Jul 1992

A flagstone handled by an employee was equipment for purposes of the Act.
Gazette 26-Aug-1992, 90 LGR 595, (1992) 136 SJLB 220, [1993] ICR 21, [1993] IRLR 6, (1993) LG Rev 424, Times 02-Jul-1992
Employers Liability (Defective Equipment) Act 1969 1
England and Wales
Cited by:
Appeal FromKnowles v Liverpool City Council HL 15-Oct-1993
A flagstone being laid by a council employee was held to be ‘equipment provided by his employer for the purposes of the employer’s business’ under the 1969 Act. An employer is liable for the defective equipment he provides. What is equipment will . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.82824

McWilliams v Sir William Arrol and Company Ltd: HL 21 Feb 1962

Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased steel erector with a safety harness, he would not have worn it, even working 70ft above ground, and he therefore suffered no loss as a consequence of the breach of duty complained of.
Held: The claim failed. The House, applying the ‘but for’ test held that the breach of duty did not cause his death. Once the employer is shown to be in breach of duty to provide equipment, the assumption is that it would have been used, because a reasonable employee would use it, unless the employer proves otherwise.
Lord Reid said: ‘In the end when all the evidence has been brought out it rarely matters where the onus originally lay: The question is which way the balance of probability has come to rest’.
Lord Chancellor, Viscount Simonds, Lord Reid, Lord Morris of Borth-y-Gest, Lord Devlin
[1962] UKHL 3, [1962] 1 WLR 295, [1962] 1 All ER 623, [1961] UKHL 8, 1962 SLT 121, 1962 SC (HL) 70
Bailii
Factories Act 1937
Scotland
Cited by:
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedHampshire Police v Taylor CA 9-May-2013
The officer had been cut by glass when clearing out a cannabis factory. The risk assessment had identified only a need for latex gloves. She said that given the environment heavier garden gloves should have been provided. The Chief Constable . .
CitedDurkin v DSG Retail Ltd and Another SC 26-Mar-2014
Cancellation of Hire Finance Contract
The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.248544

Davidson v Lothian and Borders Fire Board: IHCS 18 Jul 2003

The pursuer, a firefighter, sought damages for injury incurred during a drill. The drill involved manipulating a ladder, which was caught by the wind, a known risk in such exercises.
Held: The defenders had failed to discharge the burden on them of establishing that all appropriate steps were taken to reduce the risk of injury to the pursuer and his fellow employees to the lowest level reasonably practicable, as was required of them under Regulations.
Lord Marnoch, Lord Hamilton, Lord Macfadyen
[2003] ScotCS 203
Bailii
Manual Handling Operations Regulations 1992 4(1)(b)
Scotland
Citing:
CitedNimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.184666

Regina v Balfour Beatty Rail Infrastructure Services Ltd: CACD 5 Jul 2006

The defendant appealed against a fine of 10 million pounds for its failings in maintaining track which led to the train crash at Hatfield.
Held: The company’s contract was substantial. Positive steps were to be taken by all concerned in a company to ensure compliance with Health and Safety duties. Management would be encouraged to satisfy its duties if the fine was of sufficient size to affect shareholders. Where an individual employee was at fault, and the danger did not arise from a fault in the management system, a deterrent sentence was not appropriate, but here there had been a serious systemic failure in management. The fine was out of proportion to that imposed on the co-defendant, Railtrack plc, to reduce it to a proportionate level would remove the deterrent effect, and the fine was reduced therefore to 7.5 million pounds.
Lord Phillips CJ, Nelson, Silber JJ
[2006] EWCA Crim 1586, Times 18-Jul-2006, [2007] Bus LR 77, [2007] ICR 354
Bailii
Health and Safety at Work Act 1974 3(1)
England and Wales

Updated: 22 August 2021; Ref: scu.243065

Dietrich v Westdeutscher Rundfunk: ECJ 6 Jul 2000

ECJ (Judgment) Directive 90/270/EEC on the minimum safety and health requirements for work with display screen equipment – Scope – Meaning of ‘display screen equipment for the purposes of Article 2 – Meaning of ‘drivers’ cabs or control cabs for vehicles or machinery for the purposes of Article 1.
C-11/99, [2000] EUECJ C-11/99
Bailii
European

Updated: 15 August 2021; Ref: scu.162586

Brintons Ltd v Turvey: HL 14 Apr 1905

Held (diss Lord Robertson) that a workman, who in the course of his employment as a woolsorter contracted anthrax from infected wool, had sustained ‘personal injury by accident arising out of and in the course of his employment,’ within the meaning of section 1 of the Workmen’s Compensation Act 1897.
Lord Chancellor (Halsbury), Lords Macnaghten, Robertson, and Lindley
[1905] UKHL 862, 42 SLR 862
Bailii
Workmen’s Compensation Act 1897 1
England and Wales

Updated: 06 August 2021; Ref: scu.621174

Railtrack Plc v Smallwood: QBD 16 Feb 2001

It was not incorrect for an inspector to proceed to issue a prohibition notice to the rail operator, with regard to the use of a signal set, which had been deemed unsafe, even where the operator had given formal undertakings with regard to its’ use. The overwhelming need was to re-assure the public as to their safety, and the additional imposition of the notice operated as a belt and braces method of ensuring such safety. The section should be read purposively. The inspector would have been free to issue the notice before the accident. The accident had merely confirmed the need for a notice. ‘Activities’ might include suspended activities.
Sullivan J said: ‘In the light of those factors, and of the authorities cited in De Smith Woolf and Jowell’s Judicial Review of Administrative Law (1999), pp 251-252, paragraph 6-010, I expressed the provisional view during the course of argument that a Tribunal hearing an appeal under section 24 of the 1974 Act was not limited to reviewing the genuineness and/or the reasonableness of the Inspector’s opinions. It was required to form its own view, paying due regard to the Inspector’s expertise, see in particular Sagnata Investments Ltd v Norwich Corporation [1971} 2QB 614.’
Sullivan J
Times 16-Feb-2001, Gazette 01-Mar-2001, [2001] ICR 714
Health and Safety at Work Act 1974 22
England and Wales
Cited by:
CitedChilcott v Thermal Transfer Ltd Admn 17-Jul-2009
The company had successfully appealed against a prohibition notice relating to its arrangements for working at height. By the time of the prohibition notice, it had implemented a plan satisfactory to the inspector.
Held: The tribunal had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.85650

Wigley v British Vinegars Ltd: HL 1964

A window cleaner employed by an independent contractor was injured at the factory.
Held: There is nothing new in construing legislation designed for the protection of workers as inapplicable to other visitors to the relevant premises. Viscount Kilmuir said: ‘It is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the injured person would have made use of them had they been available.’ As to whether he was a person employed, he said: ‘In my view, the true distinction is between those who are to work for the purposes of the factory and those who are not. Clearly, maintenance of the factory is work for the purpose of the factory, while the arrest of a felon or the putting out of a fire is not, though it may benefit the factory indirectly. Window cleaning is part of the maintenance of the factory and in my view the deceased was within the protection afforded.’
Viscount Kilmuir said that although a person is not taken outside the ambit of the Act merely because he is an independent contractor the Act would not extend to a police constable who enters a factory in pursuit of a felon
‘It is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the injured person would have made use of them had they been available.’
Viscount Kilmuir
[1964] AC 307
Factories Act 1937
England and Wales
Cited by:
CitedMcDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.538253

Commission v Italy (Rayonnements Ionisants) (Judgment): ECJ 14 Jan 2021

Failure by a State to fulfill obligations – Directive 2013/59 / Euratom – Basic standards relating to health protection against the dangers resulting from exposure to ionizing radiation – Article 106 – Failure to transpose within the prescribed period
C-744/19, [2021] EUECJ C-744/19, ECLI: EU : C: 2021: 21
Bailii
European

Updated: 15 July 2021; Ref: scu.663921

Verlander v Devon Waste Management and Another: CA 27 Jun 2007

Auld LJ commented on the analysis in Stephens of the need for a judge to decide the evidence before him: ‘Perhaps I can, without damage to that analysis, summarise it by reducing it to two main propositions. First, a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence. Secondly, the Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.
. . When this court in Stephens v Cannon used the word ‘exceptional’ as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice — and a respectable and useful part at that — where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.5 In this case the Recorder has shown, in my view, in his general observations on the unsatisfactory nature of the important parts of the evidence on each side going to the central issue, particularly that of Mr Verlander, that he had considered carefully whether there was evidence on which he could rationally decide one way or the other. It is more than plain from what he has said and why, that he concluded he could not. Further, more detailed analysis by him of the evidence and rehearsal of his views on it would, in my view, have been otiose.’
Auld, Rix and Moses LJJ
[2007] EWCA Civ 835, [2021] 4 WLR 89
Bailii
England and Wales
Citing:
CitedStephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .

Cited by:
CitedETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .

These lists may be incomplete.
Updated: 01 July 2021; Ref: scu.259138

Canadian Pacific Steamships Ltd v Bryers: HL 1957

A regular member of a ship’s crew was injured when the ship was in dry dock. The Court of Appeal had held that the Regulations applied even though he was not emplyed by the appellant company.
Held: Affirmed. The power contained in section 79 power is a wide one and it had entitled the Secretary of State to make Regulations which could create a statutory duty to protect persons not employed directly in the process regulated.
The phrase ‘persons employed’ applied to ‘any person who is employed in the factory whether the direct servant of the occupier or a servant of an independent contractor so long as he is employed upon work in that factory’. Such a process, unless regulated, might be dangerous to others whose ordinary work in the factory brought them into regular proximity to the danger.
Viscount Kilmuir LC
[1958] AC 485, [1957] 3 All Er 572
Asbestos Industry Regulations 1931 2(a)
England and Wales
Citing:
Appeal fromBryers v Canadian Pacific Streamships Ltd CA 1956
. .
ApprovedMassey-Harris-Ferguson (Manufacturing) Ltd v Piper QBD 1956
‘persons employed’ where that expression was used in section 60 of the 1937 Act included not only servants of the occupier, but any other person who might be called on to do work in the factory, including a painter employed by an independent . .

Cited by:
CitedMcDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .

These lists may be incomplete.
Updated: 20 June 2021; Ref: scu.538240

Watts v Enfield Rolling Mills (Aluminium) Ltd: CA 1952

[1952] 1 All ER 1013
England and Wales
Cited by:
CitedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.652300

Mist v Toleman and Sons: CA 1946

[1946] 1 All ER 139
England and Wales
Cited by:
CitedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.652299

Stimpson v Standard Telephones and Cables Ltd: CA 1940

[1940] 1 KB 342
England and Wales
Cited by:
ApprovedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.652301

Hertfordshire Oil Storage Ltd v Regina: CACD 16 Mar 2010

Liable Operator was the person noified

The company, a joint venture enterprise, appealed against a refusal to stay prosecutions for various infringements when a fuel depot they were said to control (the Buncefield oil terminal) exploded. The company denied that they were the operator as required within the law.
Held: The operator was the person notifying himself to the authorities as being such, even if it did not have the necessary day to day control of the premises to exert actual control. It had been Total which originally gave such notifications, and it was for the prosecutor to establish that the appellant had given a subsequent modifying notification. A subsequent safety report informally pointed to the appellant, but the authority had not suggested the need to regularise the notification. There was therefore evidence to suggest that the appellant might be the operator, and it should be for a jury to establish the true position. The appeal failed.
Hooper LJ
[2010] EWCA Crim 493
Health and Safety at Work etc Act 1974 2(1) 3(1), Water Resources Act 1991 85(1), Control of Major Accident Hazards Regulations 1999 4, Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances
England and Wales
Citing:
CitedColour Quest Ltd and others v Total Downstream UK Plc and others (Rev 1) ComC 20-Mar-2009
The claim arose when a petrol spillage created a large vapour cloud which exploded causing widespread damage and injury. . .

These lists may be incomplete.
Updated: 03 June 2021; Ref: scu.402958

Homer v Sandwell Castings Ltd: CA 1995

The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
Held: The claim failed because the danger ‘did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged.’
Russell LJ
[1995] PIQR P318
England and Wales
Cited by:
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.440376

Lee v Nursery Furnishings Ltd: CA 1945

A Court should not be astute to find against either party, but should apply the ordinary standards. Lord Goddard said: ‘In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and where you find that the accident complained of is the very class of accident that the regulations are designed to prevent, a court should certainly not be astute to find that the breach of the regulation was not connected with the accident, was not the cause of the accident’
[1945] 1 All ER 387
England and Wales
Cited by:
CitedVyner v Waldenberg Brothers Ltd CA 1946
Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the . .
CitedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.652298

Kiani v Land Rover Ltd Others: CA 28 Jun 2006

Mr Kiani went to work at the Land Rover plant; his dead body was found in a tank in the area in which he worked. He had died of asphyxia. His personal representative sued on the basis that Mr. Kiani had accidentally fallen into the tank; Land Rover suggested that his death was suicide. There were thus two possible explanations. The first instance judge had found suicide to be a less than probable explanation, he found that it occurred as a result of accident because the tank had its hatch left open and that Mr. Kiani had probably gone over to have a look, overbalanced and fallen in.
Held: The appeal was dismissed.
Waller LJ discussed the difficulty arising where two scenarios appeared possible on the facts and said: ‘I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities.’
Waller LJ said: ‘It seems to me that some of the criticisms made of the recorder are on any view not justified. First it does not seem to me legitimate to say that [certain] evidence established that an accidental fall was ‘impossible’.

. . Second it is not in my view fair to criticise the recorder for not setting out precisely how any accident occurred anymore than it would be fair to say to the defendants that they should show precisely how a deliberate act of suicide would have occurred. As long as accident can be demonstrated to be possible, it is open to a court which has discounted any other possibility to be of the view that accident has been proved on the balance of probabilities. That must be particularly true where a breach of duty, a duty to guard against the very type of injury with which the case is concerned, has been established. Third, I do not myself think that it is false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities.’
Waller, Rix, Richards LJJ
[2006] EWCA Civ 880
Bailii
Workplace (Health, Safety and Welfare) Regulations 1992
England and Wales
Cited by:
CitedFosse Motor Engineers Ltd and others v Conde Nast and National Magazine Distributors Ltd and Another TCC 20-Aug-2008
The claimant said that the defendant’s employees had negligently started a fire which burned down the claimant’s warehouse. There was limited evidence to establish the cause.
Held: The claim failed. The scientific evidence did not point to any . .
CitedNulty and Others v Milton Keynes Borough Council CA 24-Jan-2013
There had been two fires at a depot owned by the claimants. The fires were found to have been likely to have been caused by the deceased employee. His insurers had repudiated liability saying that the had not been notified oin a timely fashion.
Updated: 01 June 2021; Ref: scu.242897

Vyner v Waldenberg Brothers Ltd: CA 1946

Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the passing of the 1945 Act, and the main defence was contributory negligence.
Held: Scott LJ said: ‘If there is a definite breach of a safety provision imposed on the occupier of a factory, and a workman is injured in a way which could result from the breach, the onus of proof shifts on to the employer to show that the breach was not the cause. We think that that principle lies at the very basis of statutory rules of absolute duty.’
Scott LJ
[1946] KB 50
Law Reform (Contributory Negligence) Act 1945
England and Wales
Citing:
CitedLee v Nursery Furnishings Ltd CA 1945
A Court should not be astute to find against either party, but should apply the ordinary standards. Lord Goddard said: ‘In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and . .

Cited by:
CriticisedBonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
CitedWilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.272564

Chargot Ltd (T/A Contract Services) and Others, Regina v: CACD 13 Dec 2007

The defendant company appealed against its conviction under the 1974 Act after a driver was buried under the load when his truck overturned on a work-site.
Held: The appeal failed. The policy of the 1974 Act was to impose a positive burden on employers, rather than simply disciplining them for the breach of specific obligations. That being so, the prosecution was entitled simply to point to a state of affairs as amounting to a breach of the statutory duty. The risk which the prosecution must prove should be real as opposed to a fanciful or hypothetical. The relevant risk here was the risk of injury caused by driving the dumper truck. That this was a real risk was established by the fact that there was an accident. That was sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk.
Latham LJ, Gibbs and Jones JJ
[2007] EWCA Crim 3032, [2008] ICR 517, [2008] 2 All ER 1077
Bailii
Health and Safety at Work etc Act 1974 37
England and Wales
Cited by:
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
CitedRegina v Porter CACD 19-May-2008
Everyday risks may be outwith Health and Safety
The defendant appealed against his conviction under the 1974 Act. He was headmaster at a private school. A child of three jumped from steps in the playground injured his head and was taken to hospital where he contracted MRSA and died.
Held: . .
Appeal pendingN Ltd and Another, Regina v CACD 10-Jun-2008
The defence had requested and been give a ruling of no case to answer. The prosecutor now appealed saying that this had been before he had closed the prosecution case, and had been not with his consent.
Held: The prosecutor’s appeal succeeded. . .
Appeal fromChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.278932

Moore v Kirklees Metropolitan Council: CA 30 Apr 1999

The claimant was employed as a dinner lady at a junior school. Whilst supervising playtime, a child jumped on her, causing her injury. The council appealed a finding of negligence. The boy had been recognised as being in need of special management for his behaviour, and had behaved in a similar fashion before. There were steps which could have been taken to reduce the risks, including the issue of earnings, training, and the employment of more staff.
Held: Mere forseeability was insufficient to establish liability. Each such case must turn on its own facts. In this case the finding was correct in law.
Lord Justice Peter Gibson, Lord Justice Potter
[1999] EWCA Civ 1326
England and Wales
Citing:
CitedSmith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .

These lists may be incomplete.
Updated: 31 May 2021; Ref: scu.146241

Day v Harland and Wolff Ltd: 1953

The plaintiff was injured repainting a ship in a dry dock.
Held: The situation was one covered by the regulations. The scaffolding used to support the workers had to be of the standard appropriate to maintain the employees’ safety.
[1953] I WLR 906, [1953] 2 All ER 387, [1953] 97 Sol Jo 473
Shipbuilding Regulations 1931
England and Wales

Updated: 21 May 2021; Ref: scu.237588

Latimer v AEC Limited: HL 25 Jun 1953

The Appellant had recovered damages for injuries which he alleged had been the result of a failure on the part of the Respondents in their statutory duty to maintain one of the gangways in their works in an efficient state. He slipped on a factory floor which had become flooded in an unusually heavy rain storm causing a mixture of water and oily coolant, normally confined to a channel, to coat the floor.
Held: The employer was not negligent, because it had done all that could reasonably be expected of it, short of closing the factory, to prevent injury. The risk of injury from the slippery floor was not sufficient to require the Defendants to shut the factory.
Lord Oaksey said: ‘On the question of the construction of section 25(1) of the Factories Act, 1937, I am of the opinion that by virtue of that section and the interpretation section 152, the respondents were bound to maintain the floors and passages in an efficient state, but I do not consider that it was proved that they were not in an efficient state. A floor does not, in my opinion, cease to be in an efficient state because a piece of orange peel or a small pool of some slippery material is on it. Whilst I do not agree that the maintenance of the floors is confined to their construction, I think the obligation to maintain them in an efficient state introduces into what is an absolute duty a question of degree as to what is efficient . . The question then is whether section 25(1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even so, keeping the surface of a floor free from dangerous material does not appear to me to come within the scope of maintaining the floor.’
Lord Tucker said: ‘The learned judge seems to have accepted the reasoning of counsel for the plaintiff to the effect that the floor was slippery, that slipperiness is a potential danger, that the defendants must be taken to have been aware of this, that in the circumstances nothing could have been done to remedy the slipperiness, that the defendants allowed work to proceed, that an accident due to slipperiness occurred, and that the defendants are therefore liable.
This is not the correct approach. The problem is perfectly simple. The only question was: has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? The learned judge does not seem to me to have posed this question to himself, nor was there sufficient evidence before him to have justified an affirmative answer.
The absence of any evidence that anyone in the factory during the afternoon or night shift, other than the plaintiff, slipped or experienced any difficulty or that any complaint was made by or on behalf of the workers all points to the conclusion that the danger was in fact not such as to impose upon a reasonable employer the obligation placed upon the respondents by the trial judge.’
Lord Oaksey, Lord Porter
[1953] 2 All ER 449, [1953] UKHL 3, [1953] AC 643
Bailii
Factories Act 1937 25(1)
England and Wales
Cited by:
CitedLewis v Avidan Ltd (T/A High Meadow Nursing Home) CA 13-Apr-2005
A nurse claimed damages after slipping on a patch of water in the nursing home where she worked. The defendant argued that the pipe which had broken was not equipment so as to make it liable.
Held: The nurse’s appeal failed. The mere fact of . .
CitedGoodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
CitedMunro v Aberdeen City Council SCS 17-Sep-2009
Safety Duty on Employer was not Absolute
The pursuer was injured slipping on ice in her defender employer’s car park. Liability depended on the interpretation of regulation 5, the claimant saying that it imposed an absolute requirement to maintain the workplace in efficient working order . .
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
CitedMiller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

These lists may be incomplete.
Updated: 20 May 2021; Ref: scu.189994

Chalk v Devizes Reclamation Company Limited: CA 24 Feb 1999

Where a task required common-sense, and no obvious instructions were capable of avoiding a danger, an employer was not required to produce instruction and training. The judge erred in finding liability without finding what would have helped.
Sir Stephen Brown Lord Justice Swinton Thomas
Times 02-Apr-1999, Gazette 24-Mar-1999, [1999] EWCA Civ 849
England and Wales

Updated: 19 May 2021; Ref: scu.145764

Regina v Cambridge City Council, Ex Parte Lane: CA 3 Sep 1998

A trishaw was properly a form of hackney carriage, not a ‘stage coach,’ and the Local Authority was able to impose conditions upon the licensing of a service, including limiting the number of passengers and so as to ensure safety. A trishaw was a ‘cross between a rickshaw and a bicycle and a tricycle. Like a tricycle, it has three wheels; a single front wheel and two rear wheels. Over the rear wheels, a compartment in which the passengers may sit is suspended. The vehicle is an adaptation of a rickshaw replacing the individual running on the ground and pulling the vehicle with an individual using cycle technique to provide the power for propelling the vehicle.’
Gazette 03-Sep-1998, [1998] EWCA Civ 1202, (1999) RTR 1982
Town and Police Clauses Act 1847 38, Local Government (Miscellaneous Provisions) Act 1976 47
England and Wales
Citing:
Appeal fromRegina v Cambridge City Council ex parte Simon Lane Admn 2-Jun-1998
. .

Cited by:
Appealed toRegina v Cambridge City Council ex parte Simon Lane Admn 2-Jun-1998
. .
CitedOddy, Regina (on the Application of) v Bugbugs Ltd Admn 12-Nov-2003
A private prosecutor appealed dismissal of his complaint that the respondent had operated an unlicensed man-powered rickshaw service. The district judge had held that it was not a taxi service. It was, under the 1869 Act a stage carriage and . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.86275

Smith v Northamptonshire County Council: CA 11 Mar 2008

The claimant was employed as a care worker to collect patients to take them to a day centre. She was injured when a wheelchair ramp in a patient’s home collapsed.
Held: The council were not responsible under the Regulations. They did not own or control the ramp. The ramp was not work equipment used by the appellant at work for the purposes of the Regulations. The ramp had been installed by people other than the council’s own employees, the council had no ability to maintain it and in ordinary parlance it was part of the client’s premises.
Lord Justice Waller, Lord Justice Richards and Lord Justice Rimer
[2008] EWCA Civ 181, Times 24-Mar-2008, [2008] ICR 826, [2008] 3 All ER 1054
Bailii
Provision and Use of Work Equipment Regulations 1998
England and Wales
Cited by:
Appeal fromSmith v Northamptonshire County Council HL 20-May-2009
The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.266131

Regina v Nelson Group Services (Maintenance) Ltd: CACD 30 Jul 1998

The fact that a third party was put at risk by the negligence of an employee did not prevent the employer seeking to rely upon the statutory defence that he had taken all reasonable steps to avoid such risks.
Roch LJ, Bennett, Thomas JJ
Times 17-Sep-1998, [1999] IRLR 646, [1998] EWCA Crim 2511, [1998] 4 All ER 331, [1999] ICR 1004, [1999] 1 WLR 1526
Bailii
Health and Safety at Work Act 1974 3
England and Wales

Updated: 10 May 2021; Ref: scu.87417

Dorman Long and Co Ltd v Hillier: 1951

A worker had to remove four corrugated iron sheets from a roof. He was injured and claimed under the 1937 Act.
Held: A place can be a means of access at one time and a place of work at a different time but it cannot be both at the same time. A step on to one of the sheets while the worker was passing down another after its removal was a step not upon a means of access but upon a part of the place where the work was being done. Lord Goddard CJ said that it would be ‘too artificial to say that there were different branches of work according to which sheet he was removing at any particular moment.’
Lord Goddard CJ
[1951] 1 All ER 357
Factories Act 1937 26(1)
England and Wales
Cited by:
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.440370

Prince v Carrier Engineering Co Ltd: 1955

[1955] 1 Lloyd’s Rep 401
England and Wales
Cited by:
CitedBaker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.440371

Novartis Grimsby Ltd v Cookson: CA 29 Nov 2007

The claimant sought damages from his employers for causing him bladder cancer. It is known that bladder cancer is caused by exposure to amines and the claimant had been so exposed from two sources. One was his employment, which wrongfully exposed him to amines used in the manufacture of dyes. The other was smoking, for cigarette smoke contains amines. Expert evidence established that the occupational exposure had more than doubled the risk caused by smoking. There was an issue as to whether Bonnington applied or whether the claimant had to prove that ‘but for’ the occupational exposure he would not have suffered the cancer.
Held: Smith LJ did not find it necessary to resolve this issue, holding that the ‘but for’ test was satisfied: ‘In terms of risk, if occupational exposure more than doubles the risk due to smoking, it must, as a matter of logic, be probable that the disease was caused by the former.’
Smith LJ
[2007] EWCA Civ 1261
Bailii
England and Wales
Cited by:
CitedSienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.261610

Hindle v Birtwistle: 1897

The employer considering the use of dangerous machinery must allow for ‘the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise’
Wills J
[1897] 1 QB 192
England and Wales
Cited by:
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.247755

Buck and others v Nottinghamshire Healthcare NHS Trust: CA 23 Nov 2006

Nurses at a secure hospital claimed damages after suffering injury at work. They said that hospital had failed to implement the Regulations. The hospital said that was not relevant when assssing any breach of a duty of care.
Held: To the extent that the regulations could be implemented without causing any risk to a patient, any failure to implement them was relevant, and the regulations could be used to inform the court as to the extent of the employer’s duty to its staff.
Waller LJ, VP, Carnwat LJ, Maurice Kay LJ
Times 01-Dec-2006, [2006] EWCA Civ 1576
Bailii
Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000
England and Wales

Updated: 06 May 2021; Ref: scu.246367

Horton v Taplin Contracts Limited: CA 8 Nov 2002

The employee claimed damages after injury at work using scaffolding equipment supplied by his employers which was upset by the violent act of a fellow employee.
Held: The equipment when used properly was safe. It only became dangerous if deliberately misused. The employer could not be vicariously liable for the deliberate wrongful act of a co-employee. That mischief was not foreseeable under the 1992 Regulations. A step is only realistically ‘necessary’ when the mischief to be guarded against can be reasonably foreseen.
Mr Justice Bodey, Lord Justice Rix, Lord Justice Mantell
Times 25-Nov-2002, Gazette 09-Jan-2003, [2002] EWCA Civ 1604, [2003] ICR 179
Bailii
Provision and Use of Work Eqipment Regulations 1992 (1992 No 2932) 20, Construction (Health, Safety and Welfare) regulations 1996 (1996 No 1592) 5
England and Wales
Cited by:
CitedRobb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.178202

Davie v New Merton Board Mills Ltd: HL 1959

The employer provided an employee with a simple metal tool, a drift, with no apparent defect, which had, in fact, been manufactured to excessive hardness, as the result of negligent heat treatment by the otherwise reputable manufacturer. That was a defect not discoverable, other than by testing of a kind which an employer could not reasonably have been expected to undertake, before issuing the tool to an employee.
Held: In those circumstances, the employer was not liable to the injured employee for the consequences of the manufacturer’s negligence.
Viscount Simonds said that the employers were not in breach of a duty to provide safe plant and equipment to their employees where they purchased tools from well-known makers which subsequently were revealed to be defective, but were entitled to assume they were proper for use. He approved what was said by Finnemore J. in an assizes case to the following effect: ”Employers have to act as reasonable people, they have to take reasonable care; but if they buy their tools from well-known makers, such as the second defendants are, they are entitled to assume that the tools will be proper for the purposes for which both sides intended them to be used, and not require daily, weekly or monthly inspection to see if in fact all is well.’ My Lords, a prolonged examination of the authorities could not have led him to a sounder conclusion.’
Viscount Simonds
[1959] AC 604, [1959] 1 All ER 346, [1959] 2 WLR 331, [1959] 2 Lloyds Rep 587
England and Wales
Citing:
Appeal fromDavie v New Merton Board Mills CA 1958
Parker LJ pointed out that the reasoning in Biddle was inconsistent with other decisions to the effect that there is no duty of care in respect of premises over which the master has no control, but it is consistent with alternative ratios that the . .

Cited by:
CitedWoodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
CitedDevine v Colvilles Ltd HL 11-Mar-1969
The House considered the position of the doctrine of res ipsa loquitir. The plaintiff had been injured falling or jumping from a raised platform.
Held: The claim succeeded. ‘ I hold it proved that there was a general panic. Now the defenders . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.445620

Bell, Multiple claimants v Ministry of Defence (1) and (2): QBD 21 May 2003

The claimants sought damages for psychiatric injury for stress and anxiety in being engaged on the behalf of the respondent in the course of combat.
Held: The defendant had no duty to maintain a safe system of work for military personnel during combat operations. The term ‘combat’ must be given a wide meaning. The immunity was not limited to accasions when an enemy was present, but extended to all activities directed against an enemy where the service personnel were at risk of attack themselves.
Owen J
Times 29-May-2003, [2003] EWHC 1134 (QB)
Bailii, Bailii
Crown Proceedings Act 1947
England and Wales
Cited by:
CitedBici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.182727

Polyelectrolyte Producers Group Geie v European Chemicals Agency: ECJ 21 Mar 2013

ECJ Appeal – Actions for annulment – Admissibility – Premature action – Action out of time – Article 47 of the Charter of Fundamental Rights of the European Union – Right to effective judicial protection – European Chemicals Agency (ECHA) – Regulation (EC) No 1907/2006 – Articles 57 and 59 – Substances subject to authorisation – Identification of acrylamide as a substance of very high concern – Inclusion on the candidate list of substances – Publication of the list on the ECHA website – Time-limit for instituting proceedings – Dies a quo – Article 102(1) of the Rules of Procedure of the General Court – Claim barred by lapse of time
Cruz Villalon AG
C-625/11, [2013] EUECJ C-625/11
Bailii
Charter of Fundamental Rights of the European Union 45
European
Cited by:
OpinionPolyelectrolyte Producers Group Geie v European Chemicals Agency ECJ 26-Sep-2013
ECJ Appeal – European Chemicals Agency (ECHA) – Registration, evaluation and authorisation of chemical substances – Regulation (EC) No 1907/2006 (REACH Regulation) – Articles 57 and 59 – Substances subject to . .

These lists may be incomplete.
Updated: 01 May 2021; Ref: scu.471947