McEwan 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 reasonably practicable for them to prevent the breach of regulation 12(3).
Lord Emslie said: ‘As regards regulation 5(1) I am not persuaded that it was ever intended to impose an absolute duty in exactly the same circumstances as are covered by the qualifying duty under regulation 12(3). At the time when the precursor of regulation 12(3) appeared as the second part of section 28(1) of the Factories Act 1961, the absolute obligation contained in the first part of that section was held not to cover spillages and other transient conditions. Where these matters are now expressly covered under regulation 12(3), it seems to me that, on a proper construction, regulation 5(1) should be confined in scope to the permanent state of the workplace, or at least to longer-term situations. In this regard I find myself in agreement with the approach recently taken by the Court of Appeal in Lewis v Avidan Limited.
It is of course true that, as Lord Brodie observed in Cochrane v Gaughan, the words in parentheses; ‘… (including cleaned as appropriate)’ – which did not appear in previous legislation – bear to extend the scope of the duty under regulation 5 to some degree. In my view, however, sufficient content can be given to these words by construing the regulation as extending, at most, to such non-constructional states as would be removed by appropriate cleaning (my emphasis), and thus still as excluding momentary or transient spillages which no appropriate cleaning regime could practicably have dealt with in the time available. The element of appropriateness must, in other words, be given content as well as the reference to cleaning which does not stand alone. Approaching the matter in this way would have the merit of maintaining the logical distinction, which applied under earlier legislation, between absolute duties applying to the permanent or long-term state of the workplace and means of access, and duties qualified by reasonable practicability applying to short-lived transient conditions. It would also have the advantage of preserving the settled meaning which has, for decades, been accorded to statutory duties expressed in terms of ‘maintaining premises in an efficient state’.
For the avoidance of doubt, I should make it clear that I am not suggesting that any relevant distinction should be respected merely because it was established under earlier legislation. Plainly, such an approach would be untenable following repeal of that legislation and implementation of the Workplace Directive, although I note in passing that the latter does not clearly impose on employers any absolute duty to secure the safety of either new or existing workplaces under all possible conditions. The point is rather that, in the 1992 Regulations as in earlier legislation, qualified and unqualified duties have been enacted side by side, and in that context it is surely necessary to construe the unqualified duties, where possible, in such a way as to preserve some semblance of content and application for the qualified. If the absolute duty prescribed under regulation 5 were to be given the wholly unrestricted meaning for which the pursuer contended, then in my view many of the other regulations would become otiose, and the qualification of reasonable practicability in particular defined situations (for example under regulation 12(3)) might as well not be there at all.’


Lord Emslie


2006 SCLR 592



Cited by:

ApprovedMunro 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety

Updated: 21 July 2022; Ref: scu.240074