The HSA
Cases
Allison v London Underground Ltd
[2008] EWCA Civ 71 [2008] [IRLR] 440
CA Smith LJ
“This appeal lies from a decision of His Honour Judge Cowell sitting in the Central London County Court on 25 January 2007. It involves consideration of the construction of Regulation 9 of the Provision and Use of Work Equipment Regulations 1998, (the 1998 Regulations) which provides:
“9(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.”
The first issue in the appeal is whether or not the duty imposed by Regulation 9 is absolute, and does not require the proof of any fault on the part of the employer. Should the adequacy of the training given to an employee be judged by the result in the light of events or should it, as the judge held, be assessed in the light of what the employer knew about the risks at the time, even though, in the light of later events, it could be seen that the training had been inadequate? If neither if those tests is correct, what is the correct test?
The judge held that the duty was not absolute but required the employer to provide such training as was ‘adequate in all the circumstances’ – the circumstances including, as he put it, ‘notions of foreseeability’. The judge recognised that a difficult question of construction arose and gave permission to appeal.
The Factual Background
Ms Latona Allison, the claimant/appellant, began work for London Underground Limited, the defendant/respondent, in 1996. Initially she worked as a guard but, by 1998, she had trained as a driver on the Northern Line. After only a few months, in November 1998, she developed a shoulder strain, which was found to be related to her task of handling the traction brake controller (TBC) which drives the train. After treatment, she returned to work in about July 1999 but was transferred to the Jubilee Line where the rolling stock was more modern; it was thought that the TBC would be more suitable for her. Following her return, she was monitored and, after reporting that she was having no problems, she was declared fit for full duties in September 2001. By that time, she had been trained to train other drivers and her work comprised a mixture of ordinary driving and training others. In early 2003, she developed tenosynovitis of the right hand and wrist. It is now accepted that this was due to strain from the prolonged use of the TBC, which the claimant held in a particular manner which I will later explain. She has not recovered fully from this condition and is now unfit for work as a driver.
The basic aspect of the driver’s duty is to operate the TBC. The design of the TBC on the Jubilee Line is slightly different in several respects from that on other lines. On the Jubilee Line, the TBC is operated by a handle, grasped
The Claim
The appellant’s claim rested partly on the alleged inadequacy of the risk assessment which the respondent had carried out on the use of the Jubilee Line TBC. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (the 1999 Regulations) provides:
“3(1) Every employer shall make a suitable and sufficient assessment of –
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) … (not applicable)
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.”
The judge did not deal expressly with the suitability or sufficiency of the risk assessment which had been carried out in respect of the TBC. Although that failure is not a ground of appeal, I will have to return to the question of risk assessment in due course.
The appellant also alleged breaches of Regulations 4 and 9 of the 1998 regulations. I have already set out Regulation 9. Regulation 4 provides:
“4(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
(2) 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.
(3) …. (not relevant for present purposes)
(4) In this regulation, “suitable” means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.”
It was common ground that the TBC was work equipment within the regulations. The judge held that there was no breach of Regulation 4. The expert evidence accepted by the judge was to the effect that, if an ergonomist had been consulted at the time when the TBC was being designed, the design of the TBC could have been significantly improved, so as to reduce the kind of strain which occurred in this case. However, the judge held that the TBC was suitable because it had not been reasonably foreseeable, at the design stage, that this kind of problem would arise. Also, until the appellant suffered her injury, there had been no cases of tenosynovitis arising from the use of the chamfered handle so there had been no reason to consider any change to the design.
….
The Appeal – Submissions
The appeal is based only on the judge’s finding under Regulation 9. Mr John Foy QC for the appellant advanced two arguments in the alternative.
First, he submitted that the duty under Regulation 9 of the 1998 Regulations is strict or absolute and not dependent on the proof of any fault. The duty is to ensure the provision of adequate training. The word ‘ensure’ makes it plain that the duty is strict and is not subject to any defence of reasonable practicability. In the context of this regulation, ‘adequate’ means ‘sufficient’; that is sufficient to produce the desired effect or result. The judge appeared to think that ‘adequate’ carried a connotation of being ‘less than ideal’ or ‘barely sufficient’ or ‘just about enough’ as it often does in common parlance. In that respect, he was wrong. Further, adequacy is not qualified by any concept of foreseeability. The question for the judge should have been whether the training was in fact adequate, not whether it was adequate in the light of what the employer had (or even ought to have) appreciated beforehand. The judge had applied the wrong test. If the correct test had been applied, the appellant would have succeeded. She had not been trained not to put her thumb on the chamfered end of the handle. She suffered an injury as the result of putting her thumb there. If she had been trained not to, she would not have suffered the injury. Therefore her training had been inadequate for health and safety purposes.
……
Discussion – Absolute/No-Fault or Strict Liability
Before considering the rival submissions, I want to clarify the terminology I shall use. In the course of argument, counsel used the expressions ‘strict liability’, ‘absolute liability’ and ‘no-fault liability’ interchangeably. I do not think that they all mean the same thing. In my experience, the expression ‘strict liability’ is used where liability cannot be excused on the ground that it is not practicable or reasonably practicable to avoid the risk. That is not the same as ‘absolute’ or ‘no-fault’ liability, which is reserved for the much smaller class of obligations which impose on the employer liability for something which he could not have avoided even by the exercise of all possible care. The distinction is well illustrated by the long established law in relation to section 14 of the Factories Act 1961, which imposed a duty to fence dangerous parts of a machine. That section was said to impose strict liability. However, it was not absolute in the sense that liability automatically followed if a worker was injured by a part of a machine which, by reason of the fact that an injury had occurred, could now be seen to have been dangerous. Liability only arose if the part was dangerous and whether it was dangerous depended on whether it was reasonably foreseeable that a person might be injured by it. What was reasonably foreseeable was not limited to what the employer actually foresaw; still less was it limited to what he had learned from past experience. At the trial of an action, the question of whether a part of a machine was dangerous was almost always a matter for expert evidence. If the judge was satisfied by expert evidence that the part of the machine was dangerous, then the employer ought to have known of it and it did not avail him to show that he had not realised that it was dangerous and had not thought it necessary (before the accident) to consult an expert on the subject. Once the claimant had shown that the part in question was dangerous, liability was strict in that it was no defence for the employer to show that it was not practicable for him to fence it. The duty on the employer was heavier than the duty at common law but it was not ‘no-fault’ liability. The employer would be liable where his fault had been a failure to appreciate the danger. Although the language of risk assessment was not used in those days, the employer’s fault might nowadays be said to have been a failure to assess the risks adequately, to have appreciated that the part was dangerous and to have taken appropriate action to fence the dangerous part. I would describe that kind of liability as ‘strict’ and reserve the terms ‘absolute’ or ‘no-fault’ for liability which attaches where the employer could not have avoided the risk even though he took all possible care.
In the present case, the appellant’s contention that Regulation 9 imposes ‘no-fault’ liability is a bold one, as Mr Foy recognised. I accept Mr Purchas’s submission that such no-fault liability is rare in English law. It exists but requires clear words of imposition. I also accept Mr Purchas’s submission that the 1998 Regulations must be read against the background of the two Directives. Indeed, I did not understand Mr Foy to disagree with that.
Both Directives require Member States to impose duties on employers to provide adequate training. Article 12 of the Framework Directive requires employers to ‘ensure that each worker receives adequate safety and health training’ and article 7 of the Work Equipment Directive requires that ‘the employer shall take measures necessary to ensure that workers given the task of using work equipment receive adequate training, including training on any risks which such use may entail.’ Thus Regulation 9 does no more than to echo the words of the relevant articles of the Directives, both of which use the expression ‘adequate training’. No help is given there as to the meaning of that expression.
However, the preambles to both Directives and the tenor of some of their other provisions give some clues to what the intention of the UK Parliament must have been in enacting the 1998 Regulations pursuant to its duty to implement the Directives. It must be admitted that the clues do not always point in the same direction. It seems to me that the following are of assistance.
The preamble to the Framework Directive states that the Treaty (of European Union) provides that ‘the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers.’ The preamble expressly recognises that standards of worker protection vary between Member States. It makes plain that the Directive does not justify any reduction in the levels of protection already achieved in individual Member States. However, the preamble also says that the improvement of workers’ health and safety should not be subordinated to ‘purely economic considerations’. It states that employers shall be obliged to keep themselves informed of the ‘latest advances in technology and scientific findings concerning workplace design’….. so as to be able ‘to guarantee a better level of protection of workers’ health and safety’. The general tenor of the preamble is that the Directive seeks to achieve improvement, in line with recent advances in technology but not to achieve perfection. A requirement to encourage improvements does not in any way suggest that Member States will be expected to impose no-fault liability.
Section II of the Framework Directive, which deals with employers’ obligations, begins with what appears to be a pointer in the opposite direction. Paragraph 1 of article 5 states that ‘the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.’ Taken literally, the use of the word ‘ensure’ sounds like the imposition of an absolute duty to guarantee and achieve health and safety for all workers. Paragraph 4 of article 5 provides:
“This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”
It seems to me that the thrust of article 5 is that Member States will be expected to require employers to ensure (or guarantee) their workers’ health and safety, save that provision may be made to exclude or limit liability in circumstances of no fault. That suggests that the expected norm will be a guarantee of health and safety and that special words will be required to limit the employers’ responsibility to anything less.
Article 6, paragraph 1 requires employers to take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means. The apparently absolute nature of this obligation is counteracted or at least mitigated by the detailed provisions of paragraph 2, which requires employers to implement the paragraph 1 requirement in accordance with various ‘general principles’. These include ‘avoiding risks’, ‘evaluating the risks which cannot be avoided’, ‘adapting to technical progress’, ‘replacing the dangerous by the non-dangerous or the less dangerous’ and ‘giving appropriate instructions to the workers’. It is clear from these so-called principles that it is not intended that the article should require Member States to impose on employers the responsibility of guaranteeing the health and safety of employees.
Paragraph 3 of article 6 contains the provision requiring employers to conduct a risk assessment – or evaluation as it is there called. Also, subsequent to this evaluation, the necessary preventive measures implemented by the employer must ‘assure an improvement in the level of protection afforded to workers with regard to safety and health’. Here the emphasis is on improvement rather than ensuring health and safety; improvement rather than perfection.
I have already mentioned article 12 of the Framework Directive which requires that the employer shall ensure that each worker receives adequate safety and health training in particular in the form of information and instructions specific to his workstation or job. I note that the word there used is ‘adequate’, whereas the general principles set out under article 6 refer to giving ‘appropriate’ instructions to workers.
Taking the Framework Directive as a whole, it seems to me that there are some indications that Member States must require employers to ensure their workers’ health and safety, subject to the option of allowing them to exclude or limit responsibility for matters which could not be foreseen or avoided with all due care. On the other hand, the general tenor of the provision seems to be to achieve improvement rather than a guarantee of health and safety.
Turning now to the Work Equipment Directive, the preamble repeats some parts of the preamble to the Framework Directive. The general tenor is the same; that the objective is to achieve improvement in the protection given to the health and safety of workers.
Article 1 (a general provision) states that the Directive seeks to lay down minimum health and safety requirements. Article 3, which begins the section on employers’ obligations, requires employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out and may be used by workers without impairment to their safety or health. However, where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks. This appears to be the provision underlying Regulation 4 of the 1998 regulations. That regulation 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 in this appeal.
Article 5a, inserted by Directive 1995/63, is headed ‘Ergonomics and Occupational Health’. It provides:
“The working posture and position of workers while using work equipment and ergonomic principles must be taken fully into account by the employer when applying minimum health and safety requirements.”
I have already mentioned Article 7, which requires Member States to require employers ‘to ensure that workers given the task of using work equipment receive adequate training, including training on any risks which such use may entail’. But no clue is given as to the meaning of ‘adequate training’.
It is plainly impossible to construe these Directives in the way in which we construe UK statutes; they were not intended for that purpose. However, in so far as they throw light on the purposes behind UK legislation, it seems to me that the overall intention was to require Member States to achieve minimum health and safety requirements and to seek improvement in the levels of protection afforded to workers. Where the Directives use words such as ‘shall ensure’, I do not think that it can have been intended that Member States were to be obliged to impose absolute liability on employers, regardless of fault. Of course, that does not mean that it was not open to the UK to impose absolute liability. The question remains as to whether Regulation 9 does so. I have not found this consideration of the Directives of much assistance.
I turn now to consider the case of Dugmore, which Mr Foy submitted is of assistance in construing the meaning of the word adequate. In that case, the claimant became allergic to latex at some time between 1993 and 1995 through using latex gloves during her employment as a nurse at the first defendant’s hospital. Before 1993, international medical literature suggested that there was a risk that the use of latex could result in an allergy. However, until 1996, there was no evidence that the use of latex gloves was giving rise to a problem in England and no guidance had been given about such a risk. In June 1996, the claimant suffered a serious reaction to latex gloves and thereafter the first defendant supplied her with vinyl gloves. In January 1997, the claimant went to work for the second defendant, which was made aware of her allergy. In December 1997, as a result of her extreme sensitivity, she suffered an anaphylactic shock when picking up an empty box which had contained latex gloves. She was unable to return to work.
She sued both defendants for common law negligence and a breach of regulation 7(1) of COSHH, which requires an employer to ensure that the exposure of his employees to a substance hazardous to health was either prevented or, where that was not reasonably practicable, adequately controlled.
The judge dismissed the claim against both defendants on both grounds. As against the first defendant, he held that the date by which the first defendant ought reasonably to have known of the risk of latex allergy was January 1997. It did not and could not reasonably have been expected to know of the risk at the time when the claimant developed her allergy. That holding was made primarily in the context of an allegation of common law negligence. However, the judge also held that the employer’s lack of knowledge was fatal to the claim under the COSHH regulations. He considered that it was not reasonably practicable for the employer to avoid all exposure to latex and that the provision of vinyl gloves to the claimant had amounted to adequate control. However, the vinyl gloves had not been provided until after the damage had been done; the judge plainly considered that, until 1997, there had been no duty of adequate control because the need for such control could not have been reasonably foreseen. The Court of Appeal reversed the judge’s decision in respect of the regulations and held the first defendant liable.
Giving the judgment of the court, Hale LJ, as she then was, considered the extent of the employer’s duty under the COSHH regulations and the extent to which the employer’s knowledge of the risk in question was relevant to that duty. The claimant/appellant’s submission was that the duty ‘to ensure’ that exposure was either prevented or controlled imposed strict liability. The duty was not limited by any reference to the reasonable foreseeability of risk; nor was it in any way related to the outcome of a risk assessment. After a lengthy consideration of authority, the Court accepted that submission in principle. The court then considered the defence of reasonable practicability which applied only to the elimination of all exposure and not to the duty of adequate control and appears to have held (although it is not entirely clear) that the judge had been wrong to hold that it had not been reasonably practicable to avoid exposure to latex because the employer could have ‘gone out and discovered’ the risks arising from latex and could have then provided vinyl gloves.
In any event, the Court then went on to consider whether the claimant’s exposure to latex had been adequately controlled. I am not sure whether this part of the judgment is the ratio of the decision or whether it is obiter. In the COSHH regulations, the term ‘adequate’ is defined or at any rate partially so as follows: ‘In this regulation “adequate” means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and “adequately” shall be construed accordingly’. At paragraph 25, Hale LJ said:
“Here the duty is to ensure that exposure is adequately controlled. ‘Adequately’ is defined …. without any reference to reasonableness or the forseeability of risk: it is a purely practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else. It cannot be adequate control to oblige an employee frequently to wear powdered latex gloves when other barriers are available. “
Hale LJ then considered the relevant European Directives and at paragraph 27 she said:
“This all reinforces the view … that the purpose of the regulations is protective and preventive: they do not rely simply on criminal sanctions or civil liability after the event to induce good practice. They involve positive obligations to seek out the risks and take precautions against them. It is by no means incompatible with their purpose that an employer who fails to discover a risk or rates it so low that he takes no precautions against it should nevertheless be liable to the employee who suffers as a result.”
Of what assistance is this authority? I do not think it can be said to be binding on this Court which is considering a different regulation. Mr Purchas submitted that, because ‘adequate’ is defined in the COSHH regulations and not in Regulation 9 of the 1998 Regulations, for that reason alone, the case could not be of any assistance to this Court. However, I do not agree on that point. The so-called definition in the COSHH regulations does not really define the meaning of the word; it only restricts the factors which are to be taken into account when deciding whether the control is adequate. The court still has to decide whether the control is adequate and that involves giving some meaning to the word.
Mr Foy submitted that, in Dugmore, the Court held that liability under regulation 7 was absolute; the exposure was not adequately controlled because the control did not achieve the desired result. However, I do not think that the Court went so far. It did not hold that exposure was not adequately controlled merely because the claimant developed the allergy. It held that control was not adequate because it would have been quite possible, well before the claimant developed her allergy, for the employer to have discovered the risks of exposure to latex and to have provided vinyl gloves. Liability was not absolute in the sense that Mr Foy contends for in the present case, namely that it was imposed even though the employer could not have discovered the risk by the exercise of all due care and diligence. Thus I do not think that Dugmore provides the support for which Mr Foy contends. The case is, however, of relevance to the issue in the present appeal in that the Court drew a distinction between the common law duty (for the employer to take reasonable care to avoid reasonably foreseeable risks) and the more onerous duty imposed by the regulations, which, the Court held, required the employer to go out and discover the risks and to take the appropriate steps. In other words, the duty was strict in the sense that I said, in paragraph 30, that I would use the term.
I return to Regulation 9 and the attempt to construe the respondent’s duty ‘to ensure’ that the appellant was given ‘adequate training for the purposes of health and safety’. I accept that the words ‘to ensure’ imply a mandatory duty. However, in the context of this regulation, I do not think that they mean anything more than that the duty to provide training is mandatory. The employer cannot say that it was too expensive or too time-consuming or not reasonably practicable to provide training. He must provide training. Also, the training must be adequate. I accept Mr Foy’s submission that, if the judge thought that the use of the word adequate was intended to imply something ‘barely sufficient’ or ‘just about enough’ that would be wrong. But I do not think that the mere fact that the duty to train is mandatory raises the meaning of ‘adequate’ to the high level which Mr Foy contends for. Thus, I conclude that the judge was right to reject Miss Newbery’s primary submission and I would reject Mr Foy’s submission that the regulation imposes ‘no-fault’ liability.
Discussion – The test to be applied in Regulation 9
What then is the extent of the liability? The judge said that adequate training meant ‘adequate in all the circumstances’ and imported some element of foreseeability into the test. The problem with that formulation is that, as the judge himself recognised, it is not at all clear. There must be a clearer way of expressing the duty to provide adequate training of the purposes of health and safety. Also, in my view the test formulated is not the correct test. In my judgment, the test for the adequacy of training for the purposes of health and safety is what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary. That was the thrust of Ms Newbery’s submission as I set it out in paragraphs 17 and 21 above. I think that her submission was correct. This formulation of the test is consistent with the test applied by this Court in Dugmore.
It follows from my conclusion that the judge applied the wrong test that I will not have to consider in detail the way in which the judge applied his test to the facts. Suffice it to say that I consider that there was much force in Mr Foy’s submission that, although the Judge warned himself that the test should not be the same as common law negligence, he did in fact apply the common law test.
How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.
Judge Cowell recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been ‘adequate in all the circumstances’ he did not need to decide whether the risk assessment had been ‘sufficient and suitable’. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury.
In the present case the judge failed to decide whether the risk assessment had been sufficient and suitable. It appeared to me that the right approach for this court to take, in deciding whether the appellant’s training had been adequate for health and safety purposes, was to examine whether the respondent’s risk assessment had been sufficient and suitable. That, as it seemed to me, would provide the answer. In post hearing submissions, Mr Purchas argued that this would not be right as the judge’s failure to decide on the sufficiency and suitability of the risk assessment had not been a ground of appeal. The appeal was limited to the correctness of his decision under Regulation 9. I can see the force of that objection. However, it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the respondent’s risk assessment. I just think that the most logical way to approach the question is through a consideration of the suitability and sufficiency of the risk assessment. Having said that, I will respect Mr Purchas’s objection and will approach the question of what the employer ought to have known about the risks direct from the evidence before the judge.”
Mulligan v. Laurence Mechanical Services Ltd. & Anor
[2003] IEHC 97
de Valera J.
“It is clear from the evidence that what followed was a serious breach of the first defendant’s duty to the plaintiff and this is accepted by the first defendant.
Counsel for the first defendant argued that the second defendant was also “blameworthy” in five discrete and separate ways. These may be summarised as
(1) Causing or permitting the plaintiff to operate a forklift truck without first ensuring that he had sufficient skill and/or experience so to do; and that he had the requisite qualification or “ticket”;
(2) Failing to ensure that the use of the forklift truck was properly supervised and controlled;
(3) Failing, pursuant to the Safety, Health and Welfare at Work (General Application) Regulations, 1993 to ensure that in using the forklift truck the plaintiff, as a temporary employee, was properly trained in its use;
(4) Failing in a duty of care to the plaintiff under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 – Articles 4 and 5 particularly in failing to appoint a project supervisor;
(5) Failing to ensure the safe use of a forklift truck knowing that it was to be used in the execution of the works specified in the agreement between the defendants, again pursuant to the provisions of the Safety, Health and Welfare at Work (Construction) Regulations, 1995.
Counsel for the first named defendant asserted that “when the Court approaches the issue of liability to the plaintiff as between co-defendants, the Court looks at the issue of blameworthiness and not causation” and cited authorities to support this assertion. [*4]
I accept this proposition as a correct statement of the law on this point and Counsel for the second named defendant did not contest this matter.
The five headings of blameworthiness listed above may be considered as follows:
1. The second defendant knew, or ought to have known, according to the evidence, that the plaintiff had on previous occasions on the same site and during the course of the works then being carried out driven forklift trucks. Such trucks were the property of the second defendant and in these circumstances it was incumbent on the second defendant to ensure that drivers, including the plaintiff, were suitably skilled and qualified for such driving.
2. The plaintiff was permitted not only on previous occasions but specifically on the occasion in question to drive the forklift truck without, again according to the evidence, any supervision or control or any investigation into his capacity or qualifications.
3. I accept that the plaintiff was a “temporary employee” pursuant to the Safety, Health and Welfare at Work (General Application) Regulations, 1993 and that the defendant failed in its statutory duty to, inter alia, properly train him, or ensure that he was properly trained in the use of the forklift truck.
4. I also accept that the second defendant was in breach of its obligations under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 in failing to identify the inadequacies in the use of the forklift truck in the proposed construction work (as defined in the said Regulations) which could, and should, have been avoided by inter alia the appointment of a project supervisor. [*5]
5. Similarly under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 the second defendant knew, as is clear from the evidence, that the first defendant intended to use a forklift truck, the property of the second defendant and failed to ensure that the said forklift truck was suitable and appropriate for such use and that the operator or operators, including the plaintiff, were properly trained and qualified for such use.
In the light of these findings, I am satisfied that the second defendant is in breach of its duty of care to the plaintiff and that blameworthiness also attaches to it.
I have therefore to determine the degree of blameworthiness between the defendants.
I think the preponderance of blame must lie against the first defendant. The primary responsibility for the works being carried out lay with it. The plaintiff was its direct employee. It had been retained to effect the removal of the stainless steel tank and the methods employed (or which it sought to employ) were its own. It directed the plaintiff to attend, drive and control the forklift truck and it was in the best position to realise the inadequacies of the plans and procedures and the dangers into which the plaintiff was being placed.
The second defendant’s blameworthiness is created both by statute and breach of the ordinary duty of care but it appears to me to be at a somewhat further remove from that of the first defendant and for this reason I am apportioning blame on the basis of 70% against the first defendant and 30% against the second defendant.