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!