the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

Rylands v Fletcher up in smoke?

In the recent case of Stannard v Gore [2012] EWCA Civ 1248 (judgment 4.10.12) the Court of Appeal took on the herculean task of reviewing several hundred years of case law in order to answer the following: Will a landowner be liable for the damage caused by fire which (through no fault of his own) ‘escapes’ from his land? Judgment runs to 170 paragraphs in 62 pages, and concludes with a Gilbert & Sullivan-esque ‘no never…well, hardly ever’. Mr Stannard owned a tyre fitting business on an industrial estate in Hereford. He kept about 3,000 tyres on the premises. At around 1815 on 4 February 2008 a fire broke out due to a faulty wire, and spread to the tyres. Tyres (it seems) are difficult to ignite but once lit burn well and are very difficult to put out. This particular fire was so ferocious that it totally destroyed Mr Gore’s neighbouring property. Mr Gore argued that Mr Stannard was liable in negligence for allowing the fire to escape from his land. Alternately, he was strictly liable under the rule in Rylands v Fletcher LR 3 HL 330. The negligence claim failed at first instance but the Rylands v Fletcher claim succeeded. Mr Stannard appealed the second finding.  Ward LJ considered the proper approach in an ordinary Rylands v Fletcher case, having regard to Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1:  (a)   The defendant must be the owner or occupier of the land. (b)   He must bring or keep or collect an exceptionally dangerous or mischievous thing on his land. (c)   He must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to be. (d)   His use of his land must, having regard to all the circumstances of time and place, be extraordinary and unusual. (e)   The thing must escape from his property into or onto the property of another.   Reversing the decision at first instance, Ward LJ held the rule of strict liability does not apply unless the ‘thing’ which escapes is that which is collected on the land. Mr Stannard kept tyres. The tyres did not escape; only the fire which grew from them. Tyres are not ‘exceptionally dangerous or mischievous’ things and the use of the land as a tyre fitting business was neither ‘extraordinary’ nor ‘unusual’. Ward LJ did not discount the possibility that Rylands v Fletcher could apply in a fire case, but that would be very rare. Insofar as the 'troubling' case of Musgrove v Pandelis [1919] 2 KB 43 diluted the test for applying the rule, it was confined to its facts. The other judges were less gracious: For a masterclass in judicial trashing, see Lewison LJ at paragraph 144. This case highlights how, and more importantly why, the rule in Rylands v Fletcher has been continually eroded by the developing tort of negligence. As Lord Hoffman put it in Transco at [39]: ‘It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.

If you go down to the woods today...

Picture the scene: a wild area of woodland, full of trees, leaves, plants and wildlife. How nice it would be to have an area like that within the grounds of your workplace. An area like that is going to be full of trip and slip hazards. Surely no-one would want it to be smoothed out, or for the carpet of leaves and bluebells to be replaced with some kind of solid surface?   But what happens when an employee trips in a hole in the course of his employment, and sues relying on Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992?   Regulation 5 requires that the workplace “shall be maintained… in an efficient state, in efficient working order and in good repair”. The duty is strict. Is that to say that whenever a rabbit or other animal makes a hole in a “workplace” in a wood, their employer is in breach of duty?   Regulation 12(3) provides that (so far as reasonably practicable) workplace floors shall be kept free from obstructions and any article which may cause a person to slip, trip or fall. Does this really apply to slip and trip hazards in a wood, such as leaves and branches.   Fortunately, Regulation 3(4) provides that Regulations 5 and 12 do not apply to:-   … any workplace which is in fields, woods or other land forming part of an agricultural or forestry undertaking but which is not inside a building and is situated away from the undertaking’s main buildings   Does this exclude all fields and woods, or only those forming part of an agricultural or forestry undertaking? The Directive on which the regulations are based provides no assistance.   On 13th April 2012 in Davis v PA Consulting District Judge Gill held that the exclusion was for all fields and woods, and that Regulations 5 and 12 would not apply to any workplace in a wood. He accepted the argument that the words “fields, woods” would be otiose were the narrower meaning to be correct; and also that as a matter of common sense it would be straining Regulations 12(3) and 5 to (or beyond) the limit to apply them to woods. As far as I’m aware there is no higher authority on this question so watch this space for any further developments!