WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of Health and Safety Regulations - Carpenter -v- Kohler Mira Ltd

Provision and Use of Work Equipment Regulations 1998
Regulation 4	Carpenter -v- Kohler Mira Ltd | Find Other Cases

In this County Court Judgment on the 7th August 2009, at paragraphs 11 to 28, Mr Recorder Hall states:

The argument put forward by the claimant is this, that regulation 4 of the Work Equipment Regulations is central to the claimant's case. That sets out that,

"Every employer shall ensure the work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. In selecting work equipment every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. Every employer shall ensure that work equipment is used only for operations for which and under conditions for which it is suitable."

Regulation 4(4) sets out,

"In this regulation 'suitable', subject to paragraph B [which does not apply in this case] means suitable in any respect which it is reasonably foreseeable with affect the health or safety of any person."

What the claimant argues is that the duty imposed by this regulation is strict and is not tempered by considerations of reasonableness or reasonable practicability. Secondly, that the degree of foresight required is lower than that at common law. And thirdly, that the onus in relation to establishing that the duties imposed by regulation 4 are met is on the defendant to plead and prove the absence of foreseeability.

In relation to strict liability it is clear that the European Directive sets out that,

"The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking is suitable for the work to be carried out, or properly adapted for that purpose and may be used by workers without impairment to their safety and health."

And that is set out in Article 3(1) of the Work Equipment Directive 89/655. What is argued is that it is not enough to take reasonable steps to do so but that there is strict liability in relation to this situation.

With regard to the degree of foresight, it is accepted on behalf of the claimant that the issue as to the extent and degree of foresight required is an open issue, and reference is made to a number of judgments, but in particular the judgment of the House of Lords in the case of Robb v Salamis, which is a 2006 judgment, which was the first case to reach the House of Lords on the Work Equipment Regulations, and a later Court of Appeal ruling in the case of Allison v London Underground Limited, in which comments were made by Smith, LJ. In Robb v Salamis the Work Equipment Regulations were considered and it was suggested on behalf of the claimant that the House of Lords in that case clearly identified a divergence in the manner in which reasonable foreseeability was to be applied, because although regulation 4(4A) of the Work Equipment Regulations of 1998 refer to suitability as meaning suitable in respect which it is reasonable foreseeable will affect the health and safety of any person, such regulation is inconsistent with the overarching Framework Directive 89/391, which makes no such reference to the extent of reasonable foreseeability.

On behalf of the claimant I am asked to place particular attention to a number of comments made by Lord Clyde, that is in Robb v Salamis, and the obiter comment of Smith, L], in Allison v London Underground Limited. And what I am referred to is the clear indication given by Lord Clyde in Robb v Salamis, which is this,

"The general purpose of the directives has been to encourage improvements to the existing levels of protection for the health and safety of workers. The degree of foresight and the definition of the level of risk may remain matters for future consideration in the general development of the law in this area towards a greater safety of the workplace and the consequently higher levels of obligation on the employer."

In Allison v London Underground, Smith, L], made this obiter comment,

"Regulation 4 [that is regulation 4 of the Work Equipment Regulations of 1998] imposes a duty to provide suitable work equipment but suitability is defined by reference to what is reasonably foreseeable. I observe in passing that it does not appear to me that regulation 4 is fully compliant with Article 3 of the Work Equipment Directive. However, I say no more about that because the point does not arise for decision."

The claimant seeks to persuade me that the reference to 'reasonably foreseeable' in regulation 4(4) of the 1998 Regulations should be read so that only risks that arise from unusual and unforeseeable circumstances beyond the employers control, or from exceptional events, the consequence of which could not have been avoided despite the exercise of all due care, and that is the wording contained in Article 5(4) of the Framework Directive, only those circumstances would not be regarded as reasonably foreseeable. And what is argued in this case is that neither of these situations plainly arise in this case.

[Counsel] on behalf of the defendant refers me to a paragraph in Redgrave which relates to the question of interpretation of the apparent difficulty thrown up by the overarching Framework Directive and the UK Regulations, and that is shown at paragraph 2.14 of Redgrave's Health & Safety (6th Edition) 2008, where it is set out that,

"Once the meaning of the provisions of the Directive is established, the UK court must then seek to interpret national law implementing or in the same field as a Directive to achieve the same result as intended by the relevant provisions where it is reasonably possible to do so."

The paragraph goes on,

"As applied by the UK courts, this interpretative obligation is of potentially radical if uncertain scope."

Reference is made to Lidser v Forth Dry Dock & Engineering Co Limited, a House of Lords case of 1989, where words in effect were read into domestic implementing regulations with Lord Oliver recognising that the approach may involve the departure from the literal meaning of the legislation. And then the paragraph 2.14 proceeds as follows,

"In Webb v EMO Air Cargo (UK) Ltd, 1993, Lord Keith in the House of Lords said, first, that the meaning of the directive must be clear, and, second, it was sufficient if the national legislation was open to an interpretation consistent with the directive, so long as that does not distort the meaning of the legislation."

2.14 proceeds to point out that,

"If interpretation cannot achieve the same result as the Directive, a claimant may be able to bring a Francovich action or an action under the doctrine of direct effect."

And that is an action against the government for damages for any loss sustained as a result of the failure by the state concerned effectively to put into effect properly the overarching Framework Directive requirements.

Now what is said on behalf of the defendant is this, that the comments of Lord Clyde in Robb v Salamis are obiter and they are clearly not consistent with other comments contained in that judgment, and in particular a comment of Lord Hope, which is set out at paragraph 23 of the judgment in Robb v Salamis. In paragraph 23 Lord Hope stated that,

"Regulation 4(4) provides that "suitable" in that regulation means suitable in any respect when it is reasonably foreseeable will affect the health and safety of any person. I would apply the same test to what is necessary for the purposes of regulation 20."

And then reference is made to another case.

"A step is only realistically necessary when the mischief to be guarded against can be reasonably foreseen."

And so what is said on behalf of the defendant is that apart from the obiter comment of Lord Clyde at paragraph 45, in fact Lord Hope clearly addressed the issue and did not seek to suggest in his judgment that anything other than an adoption of the matters set out in paragraph 4(4) of the Work Equipment Regulations was the correct approach. And secondly, it is argued on behalf of the defendant that even if it be the case that this is a situation in which it was possible to interpret the Work Equipment Regulations of 1998 in a manner consistent with the Overarching Directive, the appropriate action in this case would be to take a Francovich application. Reference is made to Smith's, LJ, obiter comments in Allison v London Underground Limited, where once again it is set out that that is an obiter comment and not one upon which reliance should be placed.

So in dealing with this particular issue, namely the submission made on behalf of the claimant the degree of foresight required under the statutory regulations is lower than that of common law, I shall draw together the following threads.

I conclude that it would be wholly incorrect of me to find that the meaning of the Directive was clear; and secondly that the national legislation could be open to an interpretation consistent with the Directive.

In my judgment paragraph 4(4) of the Work Equipment Regulations of 1998 clearly cannot be read in a manner which is consistent with the Framework Directive as set out in Article 5 and in those circumstances I fail to see how I can approach this claim by seeking to interpret the Work Equipment Regulations in the manner argued for on behalf of the claimant. Secondly, it is abundantly clear that although Lord Clyde may have expressed particular views in relation to the effect and extent of the regulations in relation to the meaning of 'foreseeability', those were not views which were adopted by other of the Law Lords, and in particular Lord Hope, his comments were obiter, and the matter, it is clear from what Lord Clyde said, was not raised or argued by any of the counsel in that case in Robb v Salamis. Thirdly, even if it were the case that a grievance arose as a result of the failure by the United Kingdom to regulate properly in accordance and consistent with the Framework Directive, it is clear to me that other action would be open to the claimant and that is as set out at paragraph 2.14 in Redgrave, namely that other remedies would be available to the claimant.

So accordingly I cannot accept the claimant's submission that reference to reasonably foreseeable at regulation 4(4) should be read so that only risks that arise from unusual and unforeseeable circumstances beyond the employer's control or from exceptional events, the consequences of which could not have been avoided despite the exercisable due care, would not be regarded as reasonably foreseeable. In other words, I read the regulations as meaning what they say as set out at paragraph 4(4).

I turn then to the issue of the onus of proof in relation to meeting the requirements of the regulations because the second issue, or the second main issue to be considered by me is that it is argued on behalf of the claimant that the onus ought to be on the defendant to plead and prove the absence of foreseeability.

I cannot accept this submission. Once again reference is made, and [Counsel for the Claimant] very fairly throughout his submissions has made clear that he relies on obiter comments, but the matter is set out and relied on by the claimant on the basis of what was said by Lord Clyde in Robb v Salamis. He states that,

"One problem is whether the exclusion of liability, which this provision permits, is a matter which can be built in to the duty on the employer so as to make it one of the elements in his pleading and proof which the employee must include in order to establish liability on the part of his employer. The question of onus was not canvassed before us, the matter has accordingly, in the event, not been canvassed before us, but to my mind it remains as a question which may yet have to be resolved."

That may be the case that in due course the higher courts will resolve this issue but for the purposes of today's hearing I cannot see that regulation 4(4) suggests anything other than that the onus and burden of proof in relation to that is on the claimant. And accordingly in relation to the arguments in relation to statutory duties, I am not with the arguments put on behalf of the claimant and I find that reasonable foreseeability as defined in common law applies and that the onus of proof in relation to that reasonable foreseeability is on the claimant.

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Last updated: 14/05/2013