Many corporate entities “comply” with their obligations under the various health and safety regulations via experienced employees. In some cases, these employees are tasked with creating and undertaking training programmes, risk assessments, method statements and other safe systems of work. Experienced employees sometimes take shortcuts. This will inevitably create a real risk of the employer being found liable for a breach of their duties, given the approach of the courts in interpreting and applying the “six pack” regulations.
The Work at Height Regulations 2005 are considered to be part and parcel of the six pack regulations, despite coming into force 13 years after the original six pack were introduced. This judgment is a reminder of their strict nature. They are directed at avoiding or minimising the risks inherent in working at height. Work at height must be avoided altogether if it is reasonably practicable to carry out the work otherwise than at height (regulation 6(2)). If work at height cannot be avoided, the risk must be minimised by the selection of appropriate work equipment (regulation 7(2)).
The case was just as much about contributory negligence as it was primary liability. It is pleasing to see the significant finding of 60 per cent in this regard. To minimise the risk of breaching these Regulations and maximising any possible reduction for contributory negligence, defendants should be able to demonstrate the existence of documented safe systems of work. In addition, they should have evidence of these being monitored and applied in practice, particularly when experienced workers are employed and are left to work off site under their own control.
The Claimant sustained injuries in a fall from scaffolding on 23 November 2009. As a result of his injuries, he was not able to give evidence. The factual background was as follows:
- The Claimant had erected the scaffolding at the rear of a domestic property in Erith. He was working with his nephew, Mr Eastmond as his labourer.
- Access had to be gained through the house. Some of the equipment had to be brought through the property via a small toilet window. No attempt was made to take any ladders through the house and the one long ladder could not be taken through the property.
- There came a time when the only task to be completed was the fixing of an external ladder access. At this point the Claimant was at the top of the scaffolding structure with no safe means of descending. He sent Mr Eastmond to telephone Mr Bolton, the sole director of the Defendant. Whilst he was making the call, the Claimant fell from the scaffolding.
His Honour Judge McKenna found in favour of the Claimant, subject to contributory negligence of 60 per cent:
- Approach in law – this is as set out by the Court of Appeal in Bhatt v Fontaine Motors Ltd . The Claimant has to establish a causative breach of duty.
- Breach of duty - the Defendant had failed in its duties to provide training and to ensure that the Claimant remained competent to engage in the organisation, planning and erection of scaffolding.
- Causation - had the Claimant been properly trained and had there been a site-specific risk assessment and up-to-date method statement, the Claimant would, in all probability, have incorporated the use of internal ladders. The accident would have been avoided. On this basis, liability was made out.
- Contributory negligence – the Claimant consciously accepted the risk and the precaution was neither esoteric nor one which he could not take himself. His responsibility for the accident was 60 per cent.