Heeds v (1) Chief Constable of the Cleveland Police & (2) Tascor Services Ltd [2018] EWHC 810

The claimant was a police officer who trapped her thumb in the latch of an electronically operated door whilst leaving a custody suite at a police station.

The claimant submitted that she manually pushed the latch of the door because a colleague had told her to do so but her thumb became trapped because the latch released electronically.

The claimant brought a claim against the first defendant who was responsible for the operation of the station and the second defendant who was responsible for the maintenance of the building.

The claimant’s case was that both defendants were in breach of the Workplace (Health, Safety and Welfare) Regulations 1992 (the Workplace Regulations) and the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998).

At first instance

The judge found that the claimant had not been instructed by a colleague to push the latch and made a finding, on the basis of the expert evidence, that there was no fault in the design or operation of the door. Also, it was held that the potential for harm was not obvious and had any risk been identified, it would not have justified any mitigation measures.

The judge held that the Workplace Regulations 1992 applied to the exclusion of the PUWER 1998. The defendants were not in breach of regulation 18(1) of the Workplace Regulations 1992 because the door was of “suitable construction” as there was no defect.

It was stated that if the PUWER 1998 had applied, the first defendant would have been liable under regulation 4(1) in respect of the door not being suitable for the purpose for which it was used.

The claimant appealed the decision.

On appeal the High Court considered:

(1) Whether the Workplace Regulations 1992 applied to the assessment of liability to the exclusion of the PUWER 1998; and

(2) Whether the judge had applied the wrong test when considering the application of regulation 18(1) of the Workplace Regulations 1992.

Court of Appeal decision

In respect of the first point, the Court of Appeal held that where different sets of regulations applied to the same set of circumstances, the court had to construe them, so far as possible, with a view to avoiding any overlap in their application. The case of Mason v Satelcom Limited [2008] EWCA Civ 494 was applied.

It was held that the judge’s overall approach was correct and she was entitled to conclude that the door was governed by the Workplace Regulations 1992 as although it was a specialist door serving a particular function; it was still just a door. In this case, the Court of Appeal agreed that it was appropriate for the Workplace Regulations 1992 to apply rather than the PUWER 1998.

In respect of the correct approach to the application of regulation 18(1) of the Workplace Regulations, 1992, it was held that a qualitative assessment is required, which takes into account all the relevant circumstances including the seriousness of any potential injury, the extent of any alleged unsuitability with the equipment and whether the user was acting carelessly or not paying enough attention to what they were doing whilst using the equipment. The Court of Appeal stressed that the likelihood and the severity of the hazard posed by the alleged defect with the door were of fundamental importance to the assessment of regulation 18(1) of the Workplace Regulations 1992.

The Court of Appeal stated that it is not a valid defence to argue that an accident was unforeseeable on the basis of how it had occurred if it had been caused by a known source of danger.

It was held that the judge had properly considered regulation 18(1) of the Workplace Regulations 1992. She had found no fault with the door and had concluded that there was no obvious potential for harm. Also, she had concluded that no mitigation measures would have been required even if a risk had been identified.

The Court of Appeal agreed with the decision that the judge had made on the facts presented and dismissed the claim.

What this means for you

There are many cases where different regulations apply to the same set of circumstances. However, this judgment makes clear that where it is possible to do so, the courts will construe different sets of statutory regulations with a view to avoiding any overlap in their application. It can be seen that each set of regulations was intended to have their own area of application and the courts will look to ensure that they are best applied to the circumstances of any particular case.

The High Court carried out a common sense approach because although the door was of a specific design and construction, it was still just a door which was best covered by the Workplace Regulations 1992 rather than equipment under the PUWER 1998.

It is interesting to note that if the door had fallen within the PUWER 1998, the defendants would have been liable for the accident under regulation 4(1) because the defendant was unable to show that the accident was due to unforeseeable circumstances beyond their control or was due to exceptional events where the consequences were unavoidable (Hide v Steeplechase Co (Cheltenham) Ltd & Ors [2012] EWCA Civ 545 applied).

In cases where more than one set of regulations appears to apply, it should be assessed what set of regulations is the most appropriate to the particular facts of the case. For example, if the claimant has fallen from a ladder whilst at work, the PUWER 1998 will apply as it is clear that a ladder is work equipment. However, falls from ladders can also be considered under the Construction (Design and Management) Regulations, but where there is overlap in respect of the provisions, dangers in respect of the ladder should be consider under the PUWER 1998 rather than the Construction (Design and Management) Regulations.

To put it simply, dangers arising out of work equipment should be dealt with under the PUWER 1998, dangers in construction work should be dealt with under the Constructions (Design and Management) Regulations and dangers in the workplace should be dealt with under the Workplace Regulations 1992 etc. If there is overlap the most suitable set of regulations will take priority in order to avoid any overlap with other regulations.