Strict Liability – Strictly speaking

David Branson provides an overview of recent case law to highlight the issue of strict liability in health and safety cases, and argues that, in respect of civil law particularly, this needs to be defended rather than undermined, as seems to be the Government’s intention.

One of the more controversial calls made by Professor Löfstedt in his 2011 report was for the end of strict liability in civil actions, and its replacement by a duty qualified at all times by ‘reasonable practicability’.¹ Reference was made to the seminal case of Stark v The Post Office (2000),² in which the claimant was able to recover damages for injuries caused by a defective bicycle, even though it was admitted that the employer could not have detected the fault, and so was in no way responsible for the accident. This was seen as an example of imposing an unnecessary burden on the employer, and the type of thing that needed to be abolished.

In fact, the imposition of strict liability in health and safety is limited to a small number of statutory regulations passed under the Health and Safety at Work, etc. Act 1974; in most cases, liability in both civil and criminal law is fault-based.

In health and safety law, we have both fault-based liability and strict liability. In criminal law, the general liability under HSWA 1974 is qualified by what is ‘reasonably practicable’, whereas civil liability, under the Tort of Negligence, is underpinned by the concept of ‘reasonableness’.³

However, in both civil and criminal law, there is also liability under the subordinate statutory duties, some of which are strict in nature. The key regulations involved here are the Provision and Use of Work Equipment Regulations 1998 (PUWER), the Workplace (Health, Safety and Welfare) Regulations 1992 (Workplace Regs), and the Personal Protective Equipment at Work Regulations 1992 (PPE Regs).

Under reg.4(1) of PUWER, the employer is required to ensure that work equipment is “so constructed or adapted as to be suitable for the purpose for which it is used or provided”. ‘Suitable’ is further defined in reg.4(4) as being suitable in any respect, which it is ‘reasonably foreseeable’ will affect the health and safety of any person.

Under reg.5, there is a requirement that the work equipment is maintained in “an efficient state, in efficient working order, and in good repair”. While reg.4 is qualified, the requirement of reg.5 seems to be dependent on how the courts interpret the word ‘efficient’. In the Stark case, it was interpreted as imposing strict liability.

Under reg.5 of the Workplace Regs there is also a requirement that the workplace and the equipment therein should be maintained “in an efficient state, in efficient working order, and in good repair”. Similar terms are used in reg.6 in respect of providing “effective and suitable provision for ventilation”.

Finally, reg.4(1) of the PPE Regs requires the employer to provide ‘suitable’ personal protective equipment. In this respect, the term ‘suitable’ is defined in reg.4(3)(a) as being “appropriate for the risk, or risks involved”.

In most of the above cases, liability is seen, effectively, as strict, or absolute. This means there is an advantage to an injured employee in taking an action for breach of this legislation, rather than in common-law negligence, as there is no need to prove fault on the part of the defendant. Note that the strict nature of the liability derives from the earlier Factories Acts, which underpin the decision in cases such as Galashiels v Millar (1949),⁴ referred to as the basis of the decision in the Stark case. The terms ‘suitable’, ‘efficient’ and ‘appropriate’ are not qualified by the term ‘reasonably practicable’, although the nature of the accident involved may have to be ‘reasonably foreseeable’ in respect of PUWER.⁵

The legislation here is dual-purpose, imposing both civil and criminal liability. The courts have usually been reluctant to find criminal liability against an employer, unless they felt there was an element of fault, as in the case of R v Nelson Group Services (Maintenance) Ltd.⁶ However, in the case of civil law, the courts have seen this as an effective way of ensuring that the injured person is able to obtain damages, and so have been only too ready to impose strict liability.

Recent case decisions have suggested some uncertainty over the extent of strict liability, in respect of work equipment and personal protective equipment. Four areas have been identified here, relating to: the definition of the term ‘work equipment’; the issue of control over the work equipment; the definition of the term ‘suitable’; and the distinction between structural and transient defects when determining the definition of the term ‘efficient’.

The definition of ‘work equipment’

The key problem here is how widely we define the term ‘work equipment’ in respect of liability under PUWER. In reg.2(1) of PUWER, work equipment is defined as “any machinery, appliance, apparatus, tool or installation for use at work”. This definition has been held to refer only to items used by the claimant in his work, as in the case of Hammond v Commissioner for Police of the Metropolis (2004).⁷ Here, the claimant was injured by a faulty wheel-nut on a van, which he was repairing for another party. The van was deemed not to be work equipment, as he was working on it not with it, so the employer was not liable under PUWER.

However, this narrow definition was disapproved of in Spencer-Frank v Kellogg Brown & Root (2008),⁸ where the term ‘work equipment’ was held to include any equipment used by any person in the workplace. In this case, the definition was applied to a self-closing door, which injured the claimant when he was repairing it.

In any case, it would seem that the distinction between work equipment and work materials is difficult to make; take the case of Knowles v Liverpool City Council (1993),⁹ in which a flagstone used to push other flagstones into position was deemed to be work equipment, even though it was part of the pavement being laid.

Control by the employer   

Under reg.3(2) of PUWER, work equipment is deemed to be “provided for use by the employer”. It has been argued that this means the employer is not liable for work equipment that he does not provide directly, or over the provision of which he does not have control. This was the basis of the decision in Smith v Northamptonshire County Council (2009),¹⁰ where the local authority was deemed to be not liable for a collapsing ramp that served the client’s premises, when it caused injury to one of their employees. In this case, the ramp was provided by the NHS, although it was subject to inspection by the local authority.

However, the decision in this case could be criticised on the basis that the employer was aware of the ramp and its condition, and could have prevented the employee from using it by refusing to provide a service for the client until the ramp was repaired, or replaced. Instead, I would argue that work equipment should include anything used with the permission of the employer – express or implied.     
 
The definition of ‘suitable’

As noted above, the term ‘suitable’, as defined in reg.4(1) of PUWER, is qualified by reg.4(4). This states that ‘suitable’ is in any respect, which it is ‘reasonably foreseeable’ will affect the health and safety of any person. This would suggest that the employer is not liable for any unexpected use of the equipment, although the employer will have to undertake a suitable risk assessment in order to determine which risks may be seen as ‘reasonably foreseeable’.

This can lead to some unusual decisions, with the employer liable for the use of equipment in ways that may seem unexpected. Take, for example, the recent case of Wallace v Glasgow City Council (2010).¹¹ Here, the claimant was standing on a toilet bowl in order to open the cubicle window, when she slipped off it. Even though the toilet bowl was not designed to be stood upon, the court held that it was ‘reasonably foreseeable’ that the employee would use the toilet in this way, as the employer had not provided an alternative means of opening the window. While the liability here is not strict as such, it does appear to go much further than fault-based liability.

In the case of personal protective equipment, the term ‘suitable’ has been interpreted in a very strict manner. Under reg.4(1) of the PPE Regs, the personal protective equipment provided has to be ‘suitable’, this being further defined in reg.4(3)(d) as being “as far as it is practicable, effective to prevent, or adequately control the risk, or risks involved”.

In Threlfall v Hull City Council (2010),¹² the claimant was injured by a sharp object when picking up a bag of rubbish. The Court of Appeal overturned the decision of the lower courts, and held that the personal protective equipment was not adequate, as it failed to protect the claimant from injury when required. In effect, the liability was determined by the fact that an injury occurred.

This case seems to be imposing strict liability, and certainly to a much higher standard than normally required by common-law negligence. It has been argued that the decision is based on the concept of ‘reasonable practicability’, but it seems to me that the standard is higher than this, and may even impose liability on any employer, even where he has carried out a ‘suitable’ risk assessment, as this will not pick up every possible accident.  

Structural and transient defects

Another debate has developed in respect of liability under the Workplace Regs 1992. Reg.5 requires the employer to maintain “the workplace, and the equipment devices and systems…in an efficient state”. Under reg.12(1) there is a requirement that “every floor in a workplace and the surface of every traffic route shall be of a construction so that [it] is suitable for the purpose for which it is used”. Where a person slips on a floor, it is sometimes unclear which of the above regulations apply.

It has been argued that reg.5 refers to structural defects, while reg.12 refers to transient defects, such as an accidental spillage of water.¹³ Whereas reg.5 is seen as imposing an absolute duty, reg.12(1) is qualified by reg.12(3), which requires every floor to be kept free from obstructions, or free of any substance that may cause a person to slip, ‘so far as is reasonably practicable’.

In Lewis v Avidan (2005),¹⁴ the claimant failed in his action for personal injury sustained when he slipped in a pool of water caused by a sudden water leak. It was seen as not ‘reasonably practicable’ for the defendant to have cleared up the spillage in time. The case was seen as based on the earlier decision in Latimer v AEC (1954).¹⁵

However, this case can be criticised on the grounds that the water leak was caused by a defective pipe, which is, arguably, a structural defect, and thus should have come within reg.5. Moreover, the later case of Ellis v Bristol City Council (2007)¹⁶ has modified the interpretation of reg.12(1). Here, the claimant slipped in a pool of urine in a nursing home. The fact that this was a regular occurrence was seen as evidence that the flooring was not ‘suitable’ and, arguably, a non-slip floor surface should have been used.

In effect, where a hazardous condition arises with sufficient frequency and regularity, the qualified liability under reg.12(3) no longer applies, and we move back to the strict duty under reg.12(1). It would seem that the courts have narrowed the applicability of reg.12(3) so that it covers only unexpected and isolated events, and, in most cases, liability will be strict.

While the courts have moved towards a wider interpretation of strict liability in these cases, there has been a contrary move in respect of the definition of a ‘safe’ workplace, as defined by Section 29 of the Factories Act 1961. The Supreme Court decision in Baker v Quantum Clothing (2011)¹⁷ held that the employers were not liable for noise-induced hearing loss because they had done everything ‘reasonably practicable’ to avoid it.

So, it would appear that slippery floors may impose a duty of strict liability on the employer where they arise on a regular basis, but the creation of a noisy environment may only create a liability that is fault-based.¹⁸ This is a questionable position for the law to be in, and suggests there is an urgent need for clarification.

Do we need strict liability?

It is clear that the courts have adopted varying positions over the extent of strict liability for health and safety breaches. However, the general tendency has to be towards imposing stricter liability in respect of civil liability. This runs contrary to the Government’s proposal to change the law under the Enterprise and Regulatory Reform Bill, which is currently working its way through Parliament.¹⁹

With regard to criminal law, the case for strict liability is weak. Criminal liability is seen as involving an element of moral culpability, and this is not possible to show where there is strict liability. As for civil liability, it is argued that the employer is being made responsible for events beyond his control, and that he will still have to pay increased insurance premiums following accidents for which he bears no real responsibility.

However, in civil law, the aim is to provide compensation for injuries or illnesses resulting from work. The law imposes on the employer a requirement to obtain insurance in respect of liability to their employees by way of the Employer’s Liability (Compulsory Insurance) Act 1969. This is to ensure that there is a party of sufficient means – in this case, an insurance company – to provide compensation should an employee be injured at work.

Moreover, the existence of strict liability removes the need to prove fault on the part of the employer, which can be difficult in cases where the reason for the accident is unclear. Instead, it is surely preferable that contributory negligence should be used as a means of limiting the liability of the employer, where there is evidence that the employee is responsible in some way for his own accident?

In my opinion, the existence of strict liability for health and safety breaches, specifically in respect of civil law, is something that needs to be defended rather than undermined, in order to ensure an effective remedy for employees injured at work.     
   
References
1    Löfstedt, Prof R (2011): ‘Reclaiming Health and Safety for all: An independent review of health and Safety legislation’ 
2    (2000) ICR 1013
3    Tompkins, N (2010): ‘First Principles in Employers Liability’, in
J Pers Inj Law 2010 (3); pp 131-138
4    (1949) AC 275, HL (Sc.)
5    Branson, D (2012): ‘Tides of opinion’, in SHP Vol.30,No.5 – www.shponline.co.uk/features-content/full/cpd-article-tides-of-opinion
6     (1999) IRLR 646
7     (2004) EWCA Civ 830
8     (2008) UKHL 46
9     (1993) IRLR 6
10    (2009) UKHL 27; (2005) 4 All ER 557
11    (2011) CSIH 57 (IH (Ex Div)
12    (2010) EWCA Civ 1147; (2011) ICR 209 (CA (Civ Div))
13    Tompkins, N (2010): ‘The Workplace Regulations and Strict Liability’, in J Pers Inj Law (2010); pp 65-9
14    (2005) EWCA Civ 670
15    (1953) AC 643
16    (2007) EWCA Civ 685
17    (2011) UKSC 17 (SC)
18    McCarthy, F (2011); ‘Case Comment: Baker v Quantum Clothing Group Ltd’ in J Pers Inj Law (2011); pp122-7
19    www.shponline.co.uk/news-content/full/removal-of-strict-liability-could-set-health-and-safety-back-years-warns-opposition 

David Branson is coordinator of health and safety courses at Middlesbrough College.

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