Barrister Robert Spicer looks at the potential overlap between the Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998.
The Workplace (Health, Safety and Welfare) Regulations 1992 (“the Workplace Regulations”) lay down minimum standards for the health, safety and welfare aspects of workplaces. The regulations cover environmental factors including temperature, space and ventilation; structural features such as windows and doors; and welfare factors including toilet, washing and changing facilities. Employers have a duty to ensure that workplaces under their control comply with the regulations.
The Provision and Use of Work Equipment Regulations 1998 (PUWER) include requirements related to all types of work equipment, eg maintenance, suitability, inspections, training and information, lighting, markings and warnings.
Overlap between the regulations
The issue over the overlap between these two sets of regulations has been considered by the High Court in the recent case of Heeds v Chief Constable of Cleveland and Tascor (2018).
The facts, in summary, were that H, a police officer, claimed compensation from the Chief Constable and Tascor for injuries suffered in the course of her employment. The injury was suffered in the custody suite of a police station. The Chief Constable was responsible for the station and Tascor was responsible for its maintenance.
While waiting for the electronically operated door of the custody suite to be opened, H trapped her thumb in the latch of a door. She stated that a colleague had told her that she had to push the latch. She did so by placing her thumb on the latch and it had released electronically, trapping her thumb.
H brought proceedings against the Chief Constable and Tascor for common law negligence, breach of the Occupiers’ Liability Act 1957 and under the Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998.
Both defendants denied that the door was defective and/or that it was possible to guard against the accident occurring.
At first instance the claim was dismissed. The judge found the following.
The officer had not been instructed to push the latch.
The door was a specialist door serving a particular function within the undertaking but it was nevertheless a door.
The door was not defective, the gap between the latch and the door frame was part of the design of the door, a guard would be impracticable and there was no obvious risk of injury.
There was no fault in the design or operation of the door and that the potential for harm was not obvious.
If any risk had been identified it would not have justified mitigation measures.
The Workplace Regulations applied to the exclusion of PUWER.
The door was suitably constructed for the purposes of PUWER.
Once the claimant had shown that she had been injured by work equipment, the burden of proof rested on the defendants to show that the incident was due to unforeseeable circumstances beyond their control or that it was due to exceptional events which could not have been avoided despite the exercise of due care.
The instruction by the claimant’s colleague to push the latch meant that the use of the door was within the control of the Chief Constable. It was not unforeseeable that the appellant would seek to push the latch rather than the door and insert her thumb into the gap. If PUWER had applied, the Chief Constable would have been liable.
H appealed to the High Court. The High Court’s decision was as follows.
Where different sets of regulations applied to the same circumstances, the court had to construe them with a view to avoiding their overlapping application.
Although the door was a specialist door serving a particular function, it was still a door.
The judge had correctly found that the door was suitable.
The Workplace Regulations rather than PUWER applied, given that the Workplace Regulations deal expressly with doors.
Although foreseeability was relevant, the assessment was described in terms of a real or material risk of injury.
What was required was a qualitative assessment, taking into account all the relevant circumstances including the seriousness of any potential injury and the extent of the alleged unsuitability.
The risks arising from a user acting carelessly or inattentively also had to be taken into account and it would be no defence to say that although an accident had been caused by a known source of danger, it had happened in a way that could not have been foreseen.
While the door had potential to cause injury, an assessment had been carried out which considered the degree of risk, including the fact that the door had been used regularly and there were no other reported injuries.
The claim was settled for £175,000.
An earlier case with broadly similar facts was Malcolm v Commissioner of Police of the Metropolis (1999).
M trapped her arm in a defective lift door and was injured. She claimed compensation from her employer on the basis of a breach of the Workplace Regulations. On behalf of the employer it was argued that responsibility for the lift had been delegated to a firm of independent contractors. It was later conceded that the duty owed under the regulations could not be delegated. The employer also argued that the duty to maintain equipment in an efficient state, in efficient working order and in good repair was not an absolute duty and that it had fulfilled its duty by appointing an independent contractor who had carried out regular maintenance checks.
The High Court ruled that the employer was liable. The duty owed under the Workplace Regulations was absolute. Proof that a defect in the equipment had caused the accident would be sufficient for liability. The regulations were not limited by the concept of reasonable foreseeability.