EL Legal Update

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EL Legal Update

• Anthony Baker
• Partner
• Praxis Partners

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EL Contents

• Workplace Regulations (WHSWR 1992)
• Work Equipment Regulations (PUWER 1998, PPEWR
  1992)
• Manual Handling Regulations (MHOR 1992)
• Vicarious Liability
• Suicide
• Other topical issues affecting E.L. claims

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1. WORKPLACE REGULATIONS
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Workplace (Health, Safety Welfare)Regulations
1992

• Maintenance Reg 5
• the workplace shall be maintained in an
  efficient state, in efficient working order and
  in good repair
• Conditions of Floors and Traffic routes Reg 12
• every floor and surface of every traffic route
  shall be of suitable construction and, so far as
  is reasonably practicable, kept free from
  obstructions and any article/substance which may
  cause a person to slip, trip or fall

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Burgess v- Plymouth City Council (2005)

• Facts
• Claimant - after school cleaner
• Tripped over large plastic bright blue container
  (43cm x 34cm x 25.5cm)
• System of storage in place not followed
• Defendants case
• Claimants job as cleaner to ensure compliance
  with Reg 12

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Burgess -v- Plymouth City Council (2005)

• Court of Appeal
• Fact Claimant employed to clean not determinative
• Traffic route not kept free from obstructions
• System not complied with
• Upheld judgment for Claimant
• BUT
• Large bright container there to be seen
• 50 contributory negligence
• Learning Points
• Compliance with S.S.W.
• High degree of contributory negligence

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Lewis v- Avidan (2005)
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Lewis v- Avidan (2005)

• Facts
• Claimant - Care assistant in nursing home
• Flood from burst pipe
• Defendant was unaware of concealed pipe or water
• Claimants case
• Breaches of both Regs 5 and 12

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Lewis v- Avidan (2005)

• Facts
• Claimant - Care assistant in nursing home
• Flood from burst pipe
• Defendant was unaware of concealed pipe or water
• Claimants case
• Breaches of both Regs 5 and 12
• Court of appeal
• Definition of Workplace excluded concealed pipe
• Defendant done all that was reasonably
  practicable
• Trial Judge correct to dismiss Cs claim
• Learning points
• Not pleaded in the alternative under PUWER 1998
• Potential to defend claims under Regs 5 and 12
• Independent cleaning contractors

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Lowles v- Home Office (2004)

• Facts
• Claimant employed at Armley Prison
• Entrance to security Portakabin with ramp
• 2 inch step up
• Risk Assessment red warning sign
• MIND THE STEP
• Door busy with information

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Lowles v- Home Office (2004)

• Court of Appeal
• R.A. relevant but not determinative
• Trial Judges view on obstruction upheld
• Foreseeable risk
• Duty of care not discharged
• Both appeals dismissed
• Judgement for Claimant BUT 50 contributory
  negligence
• Learning Points
• Even if R.A.s and warning signs still need
  evidence that eliminating the risk is not
  reasonably practicable
• Assessing both suitability and sufficiency of
  R.A.s

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Brown v- Grosvenor Building Contractors (2006)

• Facts
• Employee kicked a fire in a garden he was hired
  to clean
• Aerosol can in the fire exploded
• Serious injury to Claimants face and eye

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Brown v- Grosvenor Building Contractors (2006)

• Construction (Health, Safety and Welfare)
  Regulations 1996 Reg 5(2)
• Every place of work shall, so far as is
  reasonably practicable, be made and kept safe for
  any person that works there .. And should not
  create a risk to health

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Brown v- Grosvenor Building Contractors (2006)

• Trial Judge
• Defendant could not have guarded against the
  circumstances of the fire/explosion
• No R.A. BUT it would not have foreseen the
  injury in any event

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Brown v- Grosvenor Building Contractors (2006)

• Trial Judge
• Defendant could not have guarded against the
  circumstances of the fire/explosion
• No R.A. BUT it would not have foreseen the
  injury in any event
• Court of appeal
• Was there an appreciable risk of harm
• Balance between the gravity of risk and cost
• Risk not reasonably foreseeable
• No breach
• Learning points
• Decided differently under Workplace Regs?
• Unforeseeable risk
• Lack of R.A.

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2. WORK EQUIPMENT REGULATIONS
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Provision Use of Work Equipment Regulations
1998 and Personal Protective Equipment at Work
Regulations 1992

• Maintenance Reg 5 PUWER 1998
• every employer shall ensure that work equipment
  is maintained in an efficient state, in efficient
  working order and in good repair
• Provision Maintenance of PPE Regs 4 7 PPEWR
  1992
• every employer shall ensure that suitable PPE is
  provided to his employees who may be exposed to a
  risk and that such PPE is maintained in an
  efficient state, in efficient working order and
  in good repair

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Hammond v- Commissioner of Police for the
Metropolis (2004)

• Definition of work equipment very wide

• Facts
• Mechanic working on van owned by T.P.
• Bolt on wheel sheared wrist injury

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Hammond v- Commissioner of Police for the
Metropolis (2004)

• Court of Appeal
• Van/bolt work equipment of owner not Claimants
  employer/Defendant
• Learning Points
• Duty on employers to maintain work equipment
  owned by them (tools of the trade)
• No duty in relation to objects provided by T.P.s
  upon which employee is working
• BUT narrow factual circumstances

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Fytche v- Wincanton (2004)

• Facts
• Claimant - Trailer driver provided with steel
  toe cap work boots
• Boots to protect against heavy falling objects
  not waterproof or to
• be used in extreme weather
• Small hole icy water penetrated
• Claimant sustained mild frostbite
• Claimants case
• Strict Liability

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Fytche v- Wincanton (2004)

• Facts
• Claimant - Trailer driver provided with steel
  toe cap work boots
• Boots to protect against heavy falling objects
  not waterproof or to
• be used in extreme weather
• Small hole icy water penetrated
• Claimant sustained mild frostbite
• Claimants case
• Strict Liability
• House of Lords (3-2 majority)
• Reg 7 only applies to risks that the PPE was
  intended to protect against
• No duty to maintain/repair that had nothing to do
  with the function of the PPE
• No strict liability
• Learning points
• Difficult interpretation of the PPE Regs
• Recommendation full maintenance of equipment

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Ball v- Street (2005)

• Strict liability under PUWER not PPE
• Justification for conflict with Fytche case
• Facts
• Claimant working as farmers assistant
• Part of hay bob fractured
• Freak accident and unforeseeable

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Ball v- Street (2005)

• Strict liability under PUWER not PPE
• Justification for conflict with Fytche case
• Facts
• Claimant working as farmers assistant
• Part of hay bob fractured
• Freak accident and unforeseeable
• Court of Appeal
• Claimant only needs to establish that equipment
  failed
• Learning points
• Left with strict liability under Reg 5 PUWER 1998
  but possibly not under Reg 7 PPEWR 1992
• Claimants plead in the alternative

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3. MANUAL HANDLING
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Goodchild -v- Organon Laboratories Limited (2004)

• Facts
• Claimant employed as pharmaceutical
  representative
• Work involved lifting heavy boxes
• Claimant off working following 2 operations
• Claimant and Defendant aware that she was to
  avoid any lifting for 5 months.
• Assistance provided
• Claimant lifted 25kg box of medical equipment and
  sustained back injury.

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Goodchild -v- Organon Laboratories Limited (2004)

• Facts
• Claimant employed as pharmaceutical
  representative
• Work involved lifting heavy boxes
• Claimant off working following 2 operations
• Claimant and Defendant aware that she was to
  avoid any lifting for 5 months.
• Assistance provided
• Claimant lifted 25kg box of medical equipment and
  sustained back injury.
• QBD
• Defendant failed to avoid need for Claimant to
  undertake a M.H.O.
• Purpose of MHOR 1992 was to protect against
  inattention or carelessness
• Only 10 contributory negligence
• Learning points
• Reinforces importance of M.H. training
• Differing outcome? written instruction

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Smith v- Notaro Limited Another (2006)

• Claimant employed to deliver to building site
• Whilst carrying radiators over wooden walkway he
  fell

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Smith v- Notaro Limited Another (2006)

• Trial Judge
• Liability split 2/3 employer
• 1/3 occupier
• Also contributory negligence

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Smith v- Notaro Limited Another (2006)

• Trial Judge
• Liability split 2/3 employer
• 1/3 occupier
• Also contributory negligence
• Court of Appeal
• Employer had breached MHOR
• Need training for walking on uneven surfaces
  even where common sense
• Liability split reversed
• Learning points
• Useful where site occupier has a P.L. involvement
• Still primary duty owed by employer
• Need training even for common sense tasks

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4. VICARIOUS LIABILITY

• L v- Hesley Hall (2001)
• Connolly v- Fennex (2000)
• Dual vicarious liability Viasystems -v-Thermal
  Transfer (2005)
• Learning points
• Definitive demarcation of control
• Contractual Indemnities

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5. SUICIDE
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Eileen Corr (for Estate) v- IBC Vehicles Ltd
(2006)

• Facts
• Deceased husband badly injured at work
• PTSD
• Suicide 6 years post accident
• Trial Judge
• Suicide broke the chain of causation
• Suicide not a reasonably foreseeable consequence
  of negligence

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Eileen Corr (for Estate) v- IBC Vehicles Ltd
(2006)

• Facts
• Deceased husband badly injured at work
• PTSD
• Suicide 6 years post accident
• Trial Judge
• Suicide broke the chain of causation
• Suicide not a reasonably foreseeable consequence
  of negligence
• Court of Appeal (2 1) majority)
• No break in causation
• Suicide not an uncommon consequence of depression
• Learning points
• Floodgates unlikely
• Careful choice of medical experts

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6. OTHER ISSUES AFFECTING E.L. CLAIMS

• a) Small Claims increase - 2500?
• b) Withdrawal of pre-action admissions
• Sowerby v- Charlton (Times 05/01/06)
• BUT still PAP presumption for F.T. cases
• c) E-Disclosure

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List of documents standard disclosure
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7. CONCLUSIONS ON E.L. CLAIMS

• Fluid area of law
• Difficult to defend burden of proof reversed?
• Trial Costs - high
• BUT defendable with correct systems and close
  working relationship with Insureds, Insurers,
  Brokers and Solicitors
• SSW, RAs, training, documents and partnership
  Success

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EL Legal Update
Thank you, any questions?

• Anthony Baker
• Praxis Partners
• Josephs Well
• Hanover Walk
• Leeds
• LS3 1AB
• DDI 0870 832 5239
• Email anthony.baker_at_praxispartners.co.uk