General Duties
Cases
McGrath v. Trintech Technologies Ltd. & Anor
[2004] IEHC 342
Laffoy J.
“The plaintiff’s initial working relationship with the defendant was on contractual basis. In April, 2000 he was retained on contract as a project manager. That relationship changed in July, 2000, when he became an employee in the role of Senior Project Manager on the terms of a written contract of employment to which I will refer later. In December, 2001 the plaintiff was promoted to the position of Director of Professional Services. His immediate superior between July, 2000 and December, 2001 was Martin Downes, who was then the Director of Professional Services. Thereafter, he continued to report to Mr. Downes, who had been promoted to the position of Vice-President of Professional Services, until January, 2003.
While contracted as a project manager and employed as a senior project manager, the plaintiff worked on projects which took him on foreign assignments. During his first two and a half years with the defendant he suffered bouts of ill health of a physical nature, in particular, in the autumn of 2000, following an assignment in Korea, in April, 2001, while on assignment in South Africa, and in October and November, 2002.
While on sick leave in October/November, 2002, he was requested by the defendant to go on an assignment to Uruguay to work in a Uruguayan company, Sursoft SA, which had been acquired by the defendant in 1999. He acceded to the request and was working in Uruguay from mid-January, 2003 until the end of June, 2003, a period slightly in excess of five months. One aspect of the plaintiff’s claim is that he alleges that during this period he was subjected to grave work related stress and pressure which resulted in injury to his psychological health and well-being. Another is that the terms of his employment were varied when he took up the assignment to Uruguay.
Following his return from Uruguay in late June, 2003, the plaintiff did not return to work. He was absent on certified sick leave.
On 26th August, 2003, the plaintiff was informed by Mr. Downes and by Mr. Gerry Cleary, the Director of Human Resources, that he was being made redundant with effect from 26th September, 2003. He was one of twelve out of one hundred and thirty employees in the Dublin office whom the defendant decided to make redundant at that time with the objective, according to the defendant, of cost-cutting against the background of a sluggish global market for the defendant’s products and services. On the same day written details of the “redundancy package” were furnished to him.
Claim for breach of statutory duty: the law
The general thrust of the plaintiff’s claim for damages for breach of statutory duty, as I understand it, is that the statutory provisions which he invokes to support his claim impose a more stringent duty of care on the defendant, as his employer, than is imposed at common law.
The statutory provisions which the plaintiff invokes are the provisions in relation to general duties set out in the Safety, Health and Welfare at Work Act, 1989 (the Act of 1989) and, in particular, the following provisions:
(1) Section 6, which provides that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his employees. Of the requirements specified in sub-s. (2) of s. 6 the plaintiff invokes –
paragraph (d) (“the provision of systems of work that are planned, organised, performed and maintained so as to be, so far as is reasonably practicable, safe and without risk to health”);
paragraph (e) (“the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the safety and health at work of his employees”);
paragraph (i) (“the provision and the maintenance of facilities and arrangements for the welfare of his employees at work”); and
paragraph (j) (“the obtaining, where necessary, of the services of a competent person . . . for the purpose of ensuring, so far as is reasonably practicable, the safety and health at work of his employees”).
(2) Section 12, which mandates the preparation of a safety statement, which shall specify the manner in which the safety, health and welfare of persons employed by the employer shall be secured at work and shall be based on an identification of the hazards and an assessment of the risks to safety and health at the place of work.
The plaintiff also invokes the regulations contained in the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (S.I. No. 44 of 1993) (the 1993 Regulations) and, in particular, Regulations 5, 8, 9, 10, 11 and 13 thereof.
It was submitted on behalf of the plaintiff that the 1993 Regulations impose virtually an absolute duty on employers in relation to the health and safety obligations imposed by the Act of 1989 and the 1993 Regulations and that, therefore, it is not necessary that the plaintiff should establish blameworthiness on the part of the defendant as his employer. As authority for this proposition, counsel for the plaintiff relied on the decision of this court (Kearns J.) in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256. The plaintiff in that case was employed by the first defendant, a manufacturer of plastic fittings, as a general assistant. When, in the course of his employment, the plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose, the lever snapped and broke, causing the plaintiff to fall and sustain injury. The lever, which was found to have a latent defect, was supplied to the first defendant by the second defendant. The plaintiff claimed both for negligence and for breach of statutory duty. It was held by Kearns J. that the common law duty of an employer was to exercise all reasonable care in relation to his employees and that this duty was discharged when the employer bought from a reputable source a tool whose latent defects he had no means of discovering. However, on the question of breach of statutory duty, Kearns J. found that Regulation 19 of the 1993 Regulations, which provides that it shall be the duty of every employer to ensure that the necessary measures are taken so that work equipment is suitable for the work to be carried out or is properly adapted for that purpose as may be used by employees without risk to their safety and health, covered the situation. On the application of Regulation 19 to the circumstances Kearns J. stated as follows at p. 263:
“What does, however, seem to me to cover the situation is reg. 19 of [the 1993 Regulations] which imposes virtually an absolute duty on employers in respect of the safety of equipment provided for the use of their employees.
. . .
Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employer in this case, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. As O’Flaherty J. pointed out [in Connolly v. Dundalk Urban District Council, Unreported, Supreme Court, 18th November, 1992] an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.”
Kearns J. found for the plaintiff, holding that there had been a breach of statutory duty on the part of the first defendant. He also found that the second defendant was negligent as either producer or supplier of the faulty lever. He held that the first defendant, the employer, was entitled to a full indemnity from the second defendant.
In the Act of 1989 the expression “personal injury” is defined in similar terms to the definition contained in s. 2 of the Civil Liability Act, 1961, as including “any disease and any impairment of a person’s physical or mental condition”. It is undoubtedly the case that the general duties imposed by the Act of 1989 extend to the protection of the psychiatric health of employees and comprehend the obligation to provide systems and measures which safeguard the employee against psychiatric injury induced by the stress and pressures of the employee’s working conditions and workload. As is pointed out in McMahon and Binchy at p. 605 (footnote 93), almost without exception, the 1993 Regulations provide “for strict and even absolute duties”. However, in a civil action the plaintiff must establish that the injury was caused by the breach. The question which arises in this case is whether the plaintiff has established a breach of a statutory duty in consequence of which he has suffered the injury and loss of which he complains.
I have already quoted the first of the two additional observations made by Keane C.J. at the end of his judgment in Fletcher v.The Commissioners of Public Works. For completeness, as it is quoted in the defendant’s submission, I have considered the relevance of the second, which was to the following effect:
“Secondly, the claim of the plaintiff in the present case was grounded on breach of statutory duty in addition to common law negligence. It is clear that in the absence of any specific statutory provision entitling the plaintiff to recover damages for psychiatric injury, the same principles as to liability must apply.”
That observation was made in the context that, while the defendant admitted that, as employer, it had failed to take proper precautions for the safety, health and welfare of the plaintiff as its employee, and conceded that as a result of that failure the plaintiff was exposed to significant quantities of asbestos dust in the course of his employment and, as a further consequence, was exposed to the risk of contracting mesothelioma in later life, the plaintiff did not manifest any physical symptoms of ill health resulting from his exposure to asbestos dust. The plaintiff’s case was that he was entitled to be compensated for psychiatric injury which he suffered consequent upon his being informed that he was exposed to the risk of contracting mesothelioma, although that risk, on the evidence, was very remote. As is clear from the first additional observation of Keane C.J., which I have quoted earlier, in essence, he distinguished circumstances such as arise in this case, where the claim relates to a psychiatric injury alleged to have been induced by the stress and pressures of the claimant’s workload, and the situation under consideration in the Fletcher case. Therefore, it is not clear to me that the second observation, which in any event was obiter, was directed to factual circumstances such as arise in this case.”
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.
Edwards v NCB
[1949] 1 KB 704
CA Asquith LJ
Asquith LJ
”Reasonably practicable’ . . seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.’
Austin Rover Group Ltd V HM Inspector of Factories
[1990] 1 AC 619
Lord Goff
‘for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.’
R v HTM,
[2006] EWCA Crim 1156 [2007] 2 All ER 665, [2006] ICR 1383
CA Latham LJ
“This is an appeal under Section 35(1) of the Criminal Procedure and Investigations Act 1966 against rulings made by HHJ Fox, QC, the Recorder of Middlesbrough on the 23rd March 2006. The rulings were made in a preparatory hearing held pursuant to section 29 of that Act and were given in answer to two questions which will determine the scope of the ultimate trial of the defendants at trial, the respondents to this appeal. The defendants face an indictment in which they are charged in Count 4 with a failure to discharge their duty under Section 2(1) of the Health and Safety at Work etc Act 1974 (the 1974 Act). The duty identified in the particulars of offence is:
“It failed to ensure, so far as was reasonably practicable, the health, safety and welfare at work of all its employees (including Fred Cook and John Crimmins)….”
…….
3. General duties of employers and employed persons other than their employees.
(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks of their health and safety.
..
33. Offences
(1) It is an offence for a person –
(a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7;
……
40. Onus of proving limits of what is practicable etc
In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable…. it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than what in fact was done to satisfy the duty or requirement.”
The relevant provision of the 1999 Regulations is regulation 21 which provides:
“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of –
(a) an employee of his …..”
…..Mr Matthews has referred us to two authorities in particular which, in his submission make it plain that the essentially regulatory nature of these and similar statutory provisions preclude any argument that the forseeability of risk plays any part in the determination of the extent of the duty. In R –v- Davies [2002] ECA Crim 2949, this court held that the imposition of the legal burden of proof in section 40 of the 1974 Act was justified, necessary and proportionate and not incompatible with Article 6(2) of the European Convention of Human Rights. It did so on the basis that the statute was regulatory, intended to set goals for duty holders to encourage them to be safety conscious to prevent accidents rather than being concerned simply to imposing sanctions. It cited with approval the judgment of Cory J in the Canadian Supreme Court in R –v- Wholesale Travel Group Inc [1991] 3SCR 154 when he said:
“Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of the public and society’s interest. While criminal offences are usually designed to condemn and punish inherently wrong conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.”
More directly relevant is the decision of the Court of Appeal, Civil Division in Dugmore –v- Swansea HS Trust and Anr [2003] 1All ER 333. This was an appeal in an action brought by a nurse who had developed an allergy to latex protein as a result of wearing latex gloves. It would appear that she had become sensitised sometime between 1993 and 1995 and developed a serious reaction for the first time in June 1996 as a result of which she was supplied with vinyl gloves. She subsequently, when employed by another hospital, suffered an anaphylactic attack when picking up an empty box which had contained latex gloves. In relation to the liability of the first hospital, the judge held, and the court of appeal agreed, that the evidence did not establish that a reasonable employer should have known that latex could cause such sensitivity before her attack in 1996. However, the Court of Appeal held that there had been a breach of regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1988 and 1994 (The COSHH Regulations). This regulation provides:
“Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented, or, where this is not reasonably practicable, adequately controlled.”
It was common ground that, on the evidence, latex was a substance hazardous to health for the purposes of that regulation. The question was therefore whether or not the fact that it was not reasonably foreseeable at the relevant time that it was capable of being hazardous to health entitled the hospital to say that there had been no breach of that regulation. The court held that the primary duty was contained in the phrase “shall ensure”. It was not dependant upon what a risk assessment would have revealed. Lady Hale, giving the judgment of the court, referred in paragraph 21 to the judgment of Lord Nimmo Smith in Williams –v- Farne Salmon and Trout Ltd [1998] SLT 1329. This was a decision which was primarily concerned with the question of whether or not forseeability played any part in the determination of the question of whether or not a hazard to health was involved in a particular activity, in that case exposure to micro organisms in salmon. In dealing with the definition of a substance hazardous to health, he said that the definition was:
“Couched in factual terms which are unqualified by the distance of any existence state of knowledge or reasonableforseeability…..
I can see no difference, for present purposes, between a substance being in fact hazardous to health and a place being in fact unsafe, and in my opinion the 1988 regulations impose the same kind of absolute duty as is imposed by section 69(1) [of the 1961 Act]. A number of other provisions in the regulations reinforce me in this view….the absolute nature of this duty is, in my view, made abundantly clear in the provisions of reg 7(1) which uses the word “ensure” in connection with the employers duties subject to a limited defence of reasonable practicability in respect of the duty to prevent the exposure of his employees to a substances hazardous to health. The riskassessment provisions of reg 6(1), the monitoring provisions of reg 10 (1) and (3), the surveillance provisions of reg 11(1) and the information instruction and training provisions of reg 12(1) all seem to me to presuppose the actual or potential existence of an objectively verifiable state of affairs, and to place the onus on the employer to discover this, the better to ensure compliance with this absolute duty to protect his employees first exposure to substances hazardous to health.”
Having cited that passage, Hale LJ, said in paragraph 22 of Dugmore:
“In our view, that analysis is correct, the duty in reg 7(1) is an absolute one: to ensure that exposure is prevented or controlled. Mr Shaw, for the hospitals sought to persuade us that the words “so far as is reasonably practicable” should be moved from their current position qualifying the duty to prevent exposure so as to qualify the duty to ensure that exposure is either prevented or controlled. There is no warrant for us to rewrite the regulation in this way. Its wording is even stricter than that in section 29(1) of the 1961 Act, where the phrase “so far as is reasonablypracticable” came between “shall” and “be made and kept safe”. If that was an absolute duty, then so this must be.”
The reference to section 29(1) was a reference to section 29(1) of the Factories Act 1961 which provides that:
“Every place at which any person has at any time to work…. shall so far as is reasonably practicable, be made and kept safe for any person working there.”
In Larner –v- British Steel plc [1993] 4All ER 102, a claim based, on a breach of that section, the court held that the claimant did not have to prove that the danger which made his place at work unsafe was reasonably foreseeable . Hirst LJ (at p 110) was prepared to hold that the test of safety was a strict one. Agreeing, Peter Gibson J observed (at p. 111) that the words of section 29(1) –
“Contain no express reference to forseeability, reasonable or otherwise. “Safe” is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on it.”
Reference to section 29(1) of the Factories Act is important because it identifies the source of the phrase “so far as is reasonably practicable” as used in both sections 2, 3 and 4 of the 1974 Act. In Austin Rover Group Ltd –v- HM Inspector of Factories [1990] 1AC 619, Lord Goff, at page 625D said:
“I turn next to the second expression in section 4 (2) of the Act of 1974 which I have segregated – “so far as is reasonably practicable.” These words have received authoritive interpretation in previous cases. It is now established that, in cases concerned with a statutory duty which is qualified by those words, the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved. If, for example, the defendant establishes that the risk is small, but that the measures necessary to eliminate it are great, he may be held to be exonerated from taking steps to eliminate the risk on the ground that it was not reasonably practicable for him to do so.”
He then referred to the judgment of Asquith LJ in Edwards –v- National Coal Board [1949] 1KB 704 at page 712, and to the speeches of Lord Oaksey and Lord Reid in Marshall –v- Gotham Company Ltd [1954] AC 360. Lord Goff concluded at page 626H:
” It follows from the passages which I have quoted that, for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.”
As can be seen from the passages that we have cited, this decision was concerned with section 4 of the 1974 Act which by sub-section 2 provides:
“It shall be the duty of each person who has, to any extent, control of premises to which this section applies…. or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises ….. and any plant or substance in the premises or …. provided for use there, is or are safe and without risk to health.”
In the circumstances of the Austin Rover case, Lord Jauncey determined the appeal on the basis of an analysis of the phrase “such measures as it is reasonable for a person in his position to take”, rather than the relevant phrase, “so far as is reasonably practicable”. And the other members of the Judicial Committee expressly agreed with Lord Jauncey, without referring to the speech of Lord Goff. It is suggested that, as a result, the passages in Lord Goff’s speech should not be regarded as setting out the position authoritatively. But it should be noted that Lord Jauncey did not in any way dissent from Lord Goff’s analysis of the relevant phrase; nor did any other member of the House. But perhaps more important, at page 636, Lord Jauncey dealt with the relationship between the phrase which he considered to resolve the case and the relevantphrase. At letter B he says:
“Thus while only one yardstick determines whether premises are safe at any one time the measures to ensure the safety required of each person having a degree of control may vary. Approaching the matter in this way, content may be given to the words “so far as reasonably practicable”. It could, having regard to his degree of control and knowledge of likely use, be reasonable for an individual to take a measure to ensure the safety of premises, but it might not be reasonably practicable for him to do so having regard to the very low degree of riskinvolved and the very high cost of taking the measure.”
It seems to us that, although in short form, that is precisely the meaning ascribed to the relevant phrase by Lord Goff.
In our view, Lord Goff’s analysis of what is the right approach, is the one which, on the authorities, correctly identifies the proper approach to the jury question posed by the relevant phrase. It is to be noted that he expresses the relevance of forseeability in a closely confined way. Forseeability is merely a tool with which to assess the likelihood of a risk eventuating. It is not a means of permitting a defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door; still less does it mean that the phrase “reasonably foreseeable” in itself provides the answer to the jury question. But it seems to us that a defendant to a charge under section 2 or indeed section 3 or 4, in asking the jury to consider whether it has established that it has done all that is reasonably practicable, cannot be prevented from adducing evidence as to the likelihood of the incidence of the relevant risk eventuating in support of its case that it had taken all reasonable means to eliminate it.
This does not mean that we disagree with the analysis of the Court of Appeal in Dugmore as to the nature of the duty in regulation 7(1) of the COSH regulations. The wording of that regulation is significantly different from the wording of section 2 of the 1974 Act. As Hale LJ explained, the primary duty in the regulation is an absolute one. The defendant sought to avoid this by arguing that the phrase “so far as is reasonably practicable” qualified, in effect, the word “ensure”. The court rejected that argument for obvious reasons. Unlike regulation 7(1) however, the phrase does qualify the word “ensure” in section 2 of the 1974 Act.
Turning to the second question, this raises a point of some difficulty arising from the drafting of the regulation. Mr Matthews submits that it was intended to give effect to this country’s obligations under Council Directive 89/391, intended to improve the safety and health of workers. Article 5 of the Directive provides as follows:
“1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
….
3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer …..”
The problem with which regulation 21 was intended to deal, submits Mr Matthews, was created by decisions of this court, in particular in R –v- Nelson Group Services (Maintenance) [1999] 1 WLR 1526. In essence this court, following an earlier decision in Gateway Food Markets Ltd [1997] 2 Cr App R 40, held that the mere fact that an employee has acted carelessly does not preclude an employer from arguing that it had taken all reasonably practicable steps to ensure the safety of employees or those affected by the employer’s undertaking.
Gateway Food Markets Ltd was a decision of this court presided over by Evans LJ in which the appellants had been charged with an offence under section 2(1) of the 1974 Act. In answer to a submission that the company could be liable only for the acts or omissions of those who could be described as directing minds of a company (a concept derived from the decision of the House of Lords in Tesco Supermarkets Ltd –v- Nattrass [1972] AC 153), the court considered the judgment of Steyn LJ in R –v-British Steel [1993] 1 WLR 1025 in which he suggested, obiter, that even passing negligence on the part of an employee could give rise to liability under the 1974 Act. At page 46 in Gateway, Evans LJ said as follows in relation to this aspect of the case:
“The answer lies, we suggest, in the application of the qualification or caveat contained in the statute itself. The duty under each section is broken if the specified consequence occur, but only if “so far as is reasonably practicable” they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning “taken by the company or on its behalf”, in other words the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather the company is liable in the event that there is a failure to ensure the safety, etc , of any employee, unless all reasonable precautions have been taken – as you would add, by the company or on its behalf.
If this is correct, then it follows that the qualification places upon the company the onus of proving that all reasonable precautions were taken both by it and by its servants and agents on its behalf. The concept of the “directing mind” of members of the company has no application here. The further question is whether this includes all those persons for whose negligence the employer is vicariously liable to third parties for the purposes of the law of tort. If it does, then the employer is not able to rely on the statutory defence when any of its employees has been negligent, i.e. failed to take reasonable precautions “in the course of his employment”. That phrase has been widely defined, and if the same test applies here then the statutory defence is limited to the rare case where the individual employee was on a frolic of his own, and where there was no failure to take reasonable precautions at any other level. It is possible that some narrower test should be defined, but as stated above, we do not consider that it is necessary to decide this for the purposes of the present appeal.”
That solution was adopted by Roch LJ in his judgment in Nelson, a case involving inter alia, allegations of a breach of section 3(1) of the 1974 Act. In that context, Roch LJ said at page 1548E:
“We derive considerable assistance from the judgment of this court in the Gateway case. We would summarise the law in this way. First, if persons not in the employment of the employer are exposed to risks to their health or safety the conduct of the employers undertaking, the employer would be in breach of section 3(1) and guilty of an offence under section 33(1)(a) of the Act of 1974 unless the employer can prove on the balance of probabilities that all that was reasonably practicable had been done by the employer or on the employer’s behalf to ensure that such persons were not exposed to such risks. It will be a question of fact for the jury in each case whether it was the conduct of the employer’s undertaking which exposed the third person to risks to their health and safety. The question of what was reasonably practicable is also a question of fact for the jury, depending on the circumstances of each case. The fact that the employee who was carrying out the work, in this case the fitter in installing the appliance, has done the work carelessly or omitted to take a precaution he should have taken, does not of itself preclude the employer from establishing that everything that was reasonably practicable in the conduct of the employers undertaking to ensure that the third persons affected by the employers undertaking were not exposed to risks to their health and safety had been done.”
Subject to the effect of regulation 21, we are bound by those two cases. Their effect is that the defendants will be entitled to put before the jury evidence to show that what happened was purely the fault of one or both of their employees. If the jury were persuaded that everything had been done by or on behalf of the company to prevent that accident from happening, it would be entitled to be acquitted. The question is therefore whether or not the phrase “so far as is reasonably practicable” operates so as to afford the defendant “a defence”. If it does, then regulation 21 prima facie bites, so as to preclude the defendant from relying on what the courts have held to be the meaning of the primary legislation.
A number of interesting arguments have been raised in relation to the interaction of primary and secondary legislation in such circumstances. But one uncontroversial principle clearly applies, namely the principle that secondary legislation can only have the effect of amending primary legislation, assuming all other tests are met, if the wording is clear and unambiguous and the intention to achieve that objective manifestly established.
There is no doubt that in a significant number of the judgments given in the cases to which we have referred, the effect of section 40 of the 1974 Act has resulted in judges referring to the duty under section 2 and 3 as being subject to a defence, or a limited defence, of reasonable practicability. But as Tuckey LJ made plain in Davies in paragraph 8:
“The duty cast on the defendant is a “duty …to ensure as far as is reasonably practicable.” It is a breach of this qualified duty which gives rise to the offence.”
It seems to us that that is the correct analysis. Even though a legal burden of proof in relation to that aspect of the duty is imposed on the defendant, nonetheless the breach is properly described in the indictment in the present case as we have set out in paragraph 1 above. It follows that the phrase “so far as reasonably practicable” is not a defence. Regulation 21 can have no application to it. Regulation 21 would appear to be an attempt to transpose Article 5.3 of the directive into domestic law. Whether it has succeeded in that regard is not a question that we have to decide in this case. All we need to say is that it has not affected the decision of this Court in Nelson.
In our judgment, the Recorder gave the right answer to both questions; the appeal is dismissed.”
Dugmore v Swansea NHS Trust & Anor
[2002] EWCA Civ 1689 [2003] 1 All ER 333
CA Hale LJ
“The claimant appeals against the order of His Honour Judge Masterman, made on 11 April 2002 in the Cardiff county court, dismissing her claim for damages for the consequences of a latex allergy caused by wearing powdered latex gloves during her employment as a nurse. The claim was framed both in negligence and under the Control of Substances Hazardous to Health (‘COSHH’) Regulations 1988 and 1994. It raises an issue of some practical importance, not only for nurses, as to the correct interpretation of those regulations and the extent of the duty they impose.
The claimant is now aged 34. She is atopic, having suffered from eczema and asthma since she was a baby. She has worked in health care since leaving school at 16. From about 1990 until December 1996 she was employed as a nurse at Singleton Hospital, Sketty, Swansea (‘Singleton’). and from January 1997 in the Intensive Therapy Unit (ITU) at Morriston Hospital, Morriston, Swansea (‘Morriston’). During her time at Singleton she developed a Type I allergy to latex protein as a result of using powdered latex gloves in the course of her work. Her own case was that that had happened around July 1993, and the judge found that it had certainly done so by 1994 or 1995. In June 1996 she suffered such a serious reaction while performing a procedure using latex gloves that she attended the Accident and Emergency Department and was off work for three days. Following her return she was supplied with vinyl gloves instead. When she moved to Morriston, she told the occupational health department of her allergy and was supplied with vinyl gloves there as well. However, the extent of her sensitivity was such that, on 18 December 1997, when picking up an empty box which had contained latex gloves, she suffered an anaphylactic attack and has not been able to return to her work as a nurse since then.
There were many issues at trial but on this appeal three remain. (1) What is to be taken as Singleton’s date of knowledge of the risk that wearing latex gloves could cause sensitisation for the purposes of liability in negligence? (2) What is the extent of an employer’s duty under the COSHH regulations and in particular to what extent is their knowledge of the risk relevant to that duty? (3) Was Morriston in breach of duty in failing to ensure that the claimant was not exposed to latex in the ITU?
Date of Knowledge
……
As to when dermatologists might have been expected to have read the literature, Dr White, speaking of the incident in June 1996, said this in re-examination:
” . . . I would suggest, and I use a very general term here, that a majority of UK dermatologists would have been aware of the problem at that time. That is not the same as saying they had a personal hands-on experience of patients with it, but would certainly be aware of latex protein hypersensitivity as a phenomenon.”
The test, of course, is that laid down in the oft-quoted words of Swanwick J in Stokes v Guest Keen and Nettlefold (Nuts and Bolts) Ltd [1968] 1 WLR 1776 at 1783 (quoted with approval by this Court, for example, in Heyes v Pilkington Glass Ltd [1995] PIQR P303 at P308-9):
” . . . the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; . . . where there is developing knowledge he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks he may be thereby obliged to take more than the average or standard precautions . . . “
A health care employer may very well actually have, let alone be expected to have, greater than average knowledge of particular risks to which his employees are exposed. Furthermore, at pp 1788-9, Swanwick J said this:
” . . . [the Ministry of Labour and the Factory Inspectorate] had not yet issued any notices or pamphlets or leaflets about skin cancer of the scrotum. I do not, however, attach great importance to Ministry inaction; . . . The good employer does not merely sit back and wait for official action or regulations.”
There is a case for putting Singleton’s date of knowledge rather earlier than January 1997. There is evidence that staff at Singleton knew very well of the risks resulting from allergy to latex gloves in June 1996 when the claimant suffered her first severe reaction. The records gave the cause of her condition as ‘probably from latex gloves’ and under remarks stated ‘allergy to latex gloves. Given piriton/cream. Needs to avoid using these. To see occupational health.’ The claimant’s evidence was that on her return to work after the incident, she was advised by the occupational health nurse that ‘because I had reacted so badly this time, and as this type of allergy gets worse every time a person comes into contact with it, then the next time I could in fact develop an anaphylactic shock.’ The defendants rely on this piece of evidence for another purpose (see para 29 below) so they cannot have it both ways.
But it is one thing to know of the existence of the allergy and its effects. It is another thing to know that exposure to the gloves can produce the allergy in particularly vulnerable people. The claimant had to show that a reasonably prudent health care employer ought to have known this before the date when she developed the allergy which on her case was in 1993. For this there is only the world literature which led Dr White to form his personal opinion, of which he was unable to persuade the MDA, set against the lack of evidence then that the gloves used in this country were causing a problem. Even accepting, therefore, that health care employers are in a different position from others, and that they may well be expected to take action before any official guidance is offered, it would nevertheless have been difficult on the evidence before the judge for him to conclude that this employer should have known earlier than 1996 that this was a risk against which they should take action for the purposes of the law of negligence.
The COSHH Regulations
The Regulations in force in 1993 were the 1988 Regulations (SI 1988/1657), which were replaced in January 1995 by the 1994 Regulations (SI 1994/3246), since replaced by the 1999 Regulations (SI 1999/437). It is now common ground that latex is a substance hazardous to health within the meaning of subparagraph (e) of the definition in reg 2(1):
“a substance, not being a substance mentioned in subparagraphs (a) to (d) above, which creates a hazard to the health of any person which is comparable with the hazards created by the substances mentioned in those sub-paragraphs.”
We are not therefore directly concerned with whether the creation of a hazard to health has to be foreseeable for the purpose of this definition; Lord Nimmo Smith in Williams v Farne Salmon & Trout Ltd [1998] SLT 1329, discussed at para 21 below, decided that it did not. We are concerned with reg 7(1), which was the same in both 1988 and 1994:
“Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.”
‘Adequate’ was defined in the same way in 1988, reg 7(7) and 1994, reg 7(11):
“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.”
The judge held that it was not practicable to prevent all exposure to latex in the hospital environment. It is used in a wide variety of equipment apart from gloves. Mr Finch had argued that a risk assessment under reg 6 should have been carried out, but it was hard to see how that would have revealed the danger. Having regard to the lack of apparent risk posed by powdered latex gloves and airborne latex particles, he concluded that providing vinyl gloves to the claimant should be construed as adequate control (para 66).
This does not quite address the claimant’s simple and clear argument on the construction of reg 7. Many legislative provisions imposing duties upon employers to protect the health and safety of their employees impose strict liabilities different in kind from their duties at common law. Regulation 7(1) uses the language of strict liability in providing that an employer ‘shall ensure’ that exposure is either prevented or controlled. The primary duty is to prevent exposure altogether, unless this is not reasonably practicable. ‘This’ must refer to ‘prevented’ rather than both limbs of the duty. Where prevention is not reasonably practicable, the secondary duty is adequately to control the exposure. Adequately is restrictively defined, the only relevant factors being the nature of the substance and the nature and degree of exposure generally. Nowhere is there any reference to the reasonable foreseeability of the risk. Nor is the duty dependent upon what a risk assessment would have revealed. It is therefore irrelevant whether or not a reg. 6 assessment would have revealed it.
The relevance of the common law concept of foreseeability in legislative provisions such as these has been the subject of a number of decisions, some going one way and some going the other. Much will depend upon the precise wording of the provision in question. We have been referred in particular to three decisions of this court, one concerned with the nature of the underlying duty and two others with the practicability of precautions.
Larner v British Steel plc [1993] ICR 551, concerned the duty in s 29(1) of the Factories Act 1961 that ‘every place at which any person has at any time to work . . . shall, so far as is reasonably practicable, be made and kept safe for any person working there.’ This court held that the claimant did not have to prove that the danger which had made his place of work unsafe was reasonably foreseeable. Hirst LJ was prepared (at 560C) to hold that the test of safety was a strict one. Agreeing, Peter Gibson J, as he then was, observed (at 562A) that the words of section 29(1)
“contain no express reference to foreseeability, reasonable or otherwise. ‘Safe’ is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on the word.”
It was therefore for the employer to plead and to prove that all reasonably practicable precautions had been taken to make it safe. Both members of the court pointed out that if the defendant’s contention were correct, there would be little if any distinction between the common law duty of care and the duty under the statute. The Inner House of the Court of Session reached the same conclusion for essentially the same reasons in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544. Neither decision was directly concerned with how foreseeability of risk might come into the question of what it was reasonably practicable for the employer to do.
Adsett v K & L Steelfounders & Engineers Ltd [1953] 2 All ER 320 and Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 All ER 205 were concerned with what was ‘practicable’ to protect employees against inhaling dust for the purposes of the duty under s 47(1) of the Factories Act 1937. Both held that a measure which had not yet been invented was not practicable for this purpose. In Richards (at 210) Sir Raymond Evershed MR stated that
“the measures taken must be possible in the light of current knowledge and according to known means and resources . . . the fact that at some later date some method of protection has been discovered which was not dreamed of at the date of the alleged breach . . . will not suffice.”
That deals with the factual practicability of precautions at the time. But there are also dicta to the effect that foreseeability of risk may be relevant to deciding what is practicable for the purpose of such defences. The dictum of Veale J in Jayne v National Coal Board [1963] 2 All ER 220, at 224, is often quoted:
“It is, I would have thought, clearly impracticable to take precautions against a danger which could not be known to be in existence, or to take a precautions which has not yet been invented.”
To like effect are the dicta of Lord Sutherland in the Inner House in Mains v Uniroyal Englebert Tyres Ltd [1995] IRLR 544, at 549, concerning s 29(1) of the Factories Act 1961:
“If [the employers] can establish that no risk or danger could reasonably have been foreseen from the state of the working place, then it might well be arguable that there were no reasonably practicable precautions which they could have taken to prevent the emergence of such risk. That, however, would be a matter for the defenders to raise within the context of reasonable practicability, but it would not in any way impose an onus on the pursuer to establish that the risk of injury was something which was foreseeable from the state of the working place as it was immediately before the accident.”
A small part of the judgment of Simon Brown J (as he then was) in Knox v Cammell Laird Shipbuilders Ltd (30th July 1990, unreported) concerned the duty in Regulation 18(a) of the Shipbuilding Regulations 1931 that ‘adequate ventilation to secure the removal of injurious fumes or gas shall be provided . . . ‘ where various processes were being carried on in an enclosed or confined space. Simon Brown J had already held that the fumes given off during certain processes were injurious. As a matter of fact they were not adequately controlled. He observed (at 83) that ‘In those circumstances the defendants’ duty may be thought to have arisen irrespective of their having acquired, actually or constructively, any knowledge of the danger’. However, the claimants had conceded that the defendants must actually have had or had imputed to them some recognition of the risk. Dicta of two members of the Court of Appeal in Ebbs v James Whitson & Co Ltd (1952) 2 QB 877 had been superseded by those of Bagnall J in Wallhead v Ruston & Hornsby Ltd (1973) 14 KIR 285, Boreham J in Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702, and Rose J in Morrison v Central Electricity Generating Board (unreported, 15 March 1986). Simon Brown J concluded that ‘I am satisfied that the plaintiffs are right to recognise that some degree of risk is likewise pre-supposed by the concept of “adequate” ventilation to remove “injurious fumes” within regulation 18.’
None of these decisions was concerned with the COSHH Regulations. Two decisions of Lord Nimmo Smith in the Outer House of the Court of Session are more directly in point. In Bilton v Fastnet Highlands Ltd 1998 SLT 1323, he applied what we would call the Larner v British Steel approach to regulation 7:
“. . .the pursuer does not require to do more than aver, as she has done, that she has suffered loss, injury and damage as a result of exposure to certain substances in the course of her employment, that these are substances falling within the ambit of the 1988 Regulations, and that her loss, injury and damage were caused by the defenders’ breach of the duties incumbent upon them in terms of these regulations. Regulation 7(1), which is perhaps the most important provisions for present purposes, is comparable with the provisions of s 29(1) of the Factories Act in respect that it imposes an absolute duty, subject to a defence of reasonable practicability.”
In Williams v Farne Salmon & Trout Ltd 1998 SLT 1329 the pursuer alleged that he had developed occupational asthma as a result of exposure to micro-organisms in salmon. The question raised was whether on a proper construction of the COSHH Regulations employers were only bound to comply with them to the extent that they knew or ought reasonably to foresee that a substance to which an employee was exposed was a substance hazardous to health. The judge noted (at 1332F) that the definition was
“couched in factual terms which are unqualified by the existence of any state of knowledge or reasonable foreseeability . . . I see no difference, for present purposes, between a substance being in fact hazardous to health and a place being unsafe, and in my opinion the 1988 Regulations impose the same kind of absolute duty as is imposed by s 29(1). A number of other provisions in the regulations reinforce me in this view . . . The absolute nature of this duty is, in my view, made abundantly clear by the provisions of reg 7(1), which uses the word ‘ensure’ in connection with the employer’s duties, subject to a limited defence of reasonable practicability in respect of the duty to prevent the exposure of his employees to substances hazardous to health. The risk assessment provisions of reg 6(1), the monitoring provisions of reg 10(1) and (3), the surveillance provisions of reg 11(1) and the information, instruction and training provisions of reg 12(1) all seem to me to presuppose the actual or potential existence of an objectively verifiable state of affairs, and to place the onus on the employer to discover this, the better to ensure compliance with his absolute duty to protect his employees from exposure to substances hazardous to health”
In our view, that analysis is correct. The duty in regulation 7(1) is an absolute one: to ensure that exposure is prevented or controlled. Mr Shaw, for the hospitals, sought to persuade us that the words ‘so far as is reasonably practicable’ should be moved from their current position qualifying the duty to prevent exposure so as to qualify the duty to ensure that exposure is either prevented or controlled. There is no warrant for us to rewrite the regulation in this way. Its wording is even stricter than that in s 29(1) of the Factories Act 1961, where the phrase ‘so far as is reasonably practicable’ came between ‘shall’ and ‘be made and kept safe’. If that was an absolute duty, then so must this be.
Furthermore, the defence of reasonable practicability qualifies only the duty of total prevention. Mr Marshall argues that this is a straightforward factual matter. All latex could be removed from the hospital environment. We have more difficulty with this. Irrespective of whether foreseeability of the degree of risk and the magnitude of risk comes into the equation in deciding what is reasonably practicable, latex is so commonly used in so many products that its total elimination can scarcely be thought practicable. The Judge was entitled to accept the evidence of Dr White on this point.
But that does not end the matter. Until the claimant became sensitised to latex protein, the substance hazardous to her health was contained in the powdered latex gloves. As Mr Marshall points out, it would have been a simple matter to replace those gloves with vinyl gloves: this was not rocket science waiting to be invented. It was for the hospital to prove that it was not reasonably practicable for them to do this. With a simple step like this questions of the degree and magnitude of the risk do not arise. But even if they did, the onus was on the employer to go out and find out about them: in this particular case, to say that they could not have done so is contrary to the evidence of Dr White and Mr Finch. The material was there from which an employer with the absolute duty of preventing exposure to health hazards could have discovered what needed to be done. To import into the defence of reasonable practicability the same approach to foreseeability of risk as is contained in the common law of negligence would be to reduce the absolute duty to something much closer to the common law, albeit with a different burden of proof.
If we are wrong about that, there is still the question of whether the claimant’s exposure was adequately controlled. With greatest of respect to Simon Brown J, for the purpose of this regulation at least, it seems to us that his first impression is to be preferred to his later acceptance of the plaintiffs’ concession. Here, the duty is to ensure that exposure is adequately controlled. ‘Adequately’ is defined in regulation 7 without any reference to reasonableness or the foreseeability 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.
These regulations implement European Directives, in particular Council Directive 80/1107/EEC and 88/364/EEC. Neither of these directives has anything to say about the civil liability of employers towards their employees, nor do they impose obligations directly comparable to regulation 7. Their purpose is expressly preventive. According to the 1980 preamble, the measures taken by Member States to protect workers from the risks related to exposure to chemical, physical and biological agents at work were to be approximated and improved; that protection ‘should so far as possible be ensured by measures to prevent exposure or keep it at as low a level as is reasonably practicable’; the sorts of measures involved are limiting or even banning the use of certain agents, suitable working procedures and methods, hygiene, information and warnings for workers, surveillance of their health, keeping updated records of exposure and medical records.
This all reinforces the view taken by Lord Nimmo Smith 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.
We would therefore allow the claimant’s appeal on this point and give judgment against Singleton for their breach of regulation 7(1).
Morriston’s liability
By the time that the claimant got to Morriston, she had already been sensitised. She was provided with vinyl gloves, but she had already fallen off Beachy Head. Her evidence was that she had been told of the risks of wearing latex gloves by the occupational health nurse at Singleton. It is not clear, however, that she was warned of the wider risks of simply being in an environment where latex was used. The 1996 Guidance does not deal with this. Within less than twelve months she suffered an anaphylactic attack simply from touching an empty glove box. Attempts to find work for her in a sufficiently latex free environment have failed.
The judge found that the hospital could not have done more for the claimant than carry out blood tests to confirm the diagnosis, issue her with vinyl gloves, and advise her to transfer to as latex free an environment as possible. There is no duty at common law to sack an employee with a particular sensitivity who wants to take the risk of carrying on working in what is for others a reasonably safe environment: see Withers v Perry Chain Co [1961] 1 WLR 1314. The judge concluded that the claimant was so anxious to continue her nursing career that even if the problem had been better recognised the probability was that she would still have been working in the ITU in December 1997. That last finding is a finding of primary fact based expressly upon the judge’s impression of the claimant in the witness box. It is fatal to a finding of liability in negligence. If no amount of warning would have kept the claimant away until she actually suffered her attack, then the failure to warn her cannot have caused it to happen.
The judge did not deal with Morriston’s liability under the regulations. This is a more difficult question. Total prevention of exposure, for the reasons already given, was not reasonably practicable. It is difficult to say that the exposure was adequately controlled in the circumstances, because there were other less latex laden environments to which she might have been transferred, however unwillingly. The regulations may impose a stricter duty on employers even if the employee is willing to take the risk and may be prejudiced by compliance. The difficulty as we understand it is that the risk of an anaphylactic attack would have remained wherever she had been. In the circumstances, it seems to us difficult to hold that any breach of the regulations was causative of her attack.
We would therefore dismiss the claimant’s appeal against Morriston. They would in any event only be liable for the pain and suffering arising out of that attack. All the claimant’s damage flowed from the sensitisation for which Singleton are responsible. We would allow the appeal against them.”
Daly v. Avonmore Creameries
[1984] I.R. 134
SC Henchy J.
“Avonmore Creameries Ltd. (Avonmore) have a factory at Carrick-on-Suir in the county of Tipperary. In 1979 the roof of the factory was in need of repairs. Avonmore engaged Timothy Emery to do the repairs as an independent contractor. For the sum of £8,533 (plus VAT) he was to weatherproof the roof and cover it with aluminium paint. To help him to carry out the work, Mr. Emery engaged Redmond O’Brien and James Daly (the deceased) as sub-contractors. They were to be paid £125 each for their services.
The work that O’Brien and the deceased were to do was to be done from a forklift. It was to repair the gutters and to apply the aluminium paint to so much of the roof as could be reached from the forklift, using an extended brush. They were not required to go onto the roof at all. Any work that had to be done by going onto the roof was done by Mr. Emery himself. For that purpose he would wear rubber shoes and, as a lifeline, he would have a rope attached to some secure place and tied around his waist. Thus he was protected against serious injury in case he slipped or fell.
One Monday in April, 1980, when the work on the roof was in progress and at a time when Mr. Emery was away, O’Brien and the deceased went onto the roof to repair a damaged skylight which one of the Avonmore workers had pointed out to Mr. Emery on the previous Friday. Unfortunately the deceased, who was not using a lifeline, put his foot on a perspex skylight and fell through to the factory floor below. He was fatally injured.
The plaintiff in these proceedings is the widow of the deceased. She has claimed damages for the loss sustained by herself and the other dependants of the deceased as a result of his death. She has sued Avonmore only; she may have taken that course because Mr. Emery is an undischarged bankrupt and a judgment against him would probably not be of any value. The claim against Avonmore has been laid in both negligence and breach of statutory duty. The breach of statutory duty relied on in the High Court was a breach of the Construction (Safety, Health and Welfare) Regulations, 1975, but it is now clear that those regulations do not apply to the circumstances of this case and that the only breach of statutory duty that could apply would be a breach of s. 37 of the Factories Act, 1955.
In the High Court the case was tried by a judge without a jury. No finding was made by the judge on the issue of breach of statutory duty, but he found that the fatal accident was the result of negligence on the part of Avonmore and contributory negligence on the part of the deceased. He apportioned 80% of
the fault to Avonmore and 20% to the deceased. Avonmore now appeal against the finding of negligence made against them and against the sums awarded to the various dependants.
I am satisfied that the finding of negligence against Avonmore cannot stand. It is clear from what I have said about the basis on which the deceased was engaged by Mr. Emery that the deceased was not an employee of Avonmore. He was a sub-contractor engaged by Mr. Emery to do work that did not require him to go onto the roof. O’Brien gave evidence that the deceased had said that someone had asked him to fix the damaged skylight in the roof, but Avonmore disposed of that evidence (if admissible evidence it was) by calling every employee of theirs who might have requested the deceased to fix the skylight and by showing that no such request was made on their behalf.
However, the trial judge found that the deceased had an implied invitation to go onto the roof to fix the skylight. I do not think that this finding was open on the evidence. I would say that any implied invitation to the deceased was to go to whatever part of the factory it was necessary for him to go to for the purpose of doing the work he was engaged by Mr. Emery to do. For example, if the deceased had been expressly debarred by his contract with Mr. Emery from going onto the roof and had done so nevertheless, the deceased could not be said to have been an invitee of Avonmore when on the roof for, although Avonmore had an interest in having the skylight repaired, an implied invitation to go onto the roof to do the repairs could be inferred only in favour of those whose job it was to do such repairs.
……
The plaintiff’s claim has been alternatively based on breach of statutory duty. As I have already pointed out, the relevant statutory duty is to be found in s. 37 of the Factories Act, 1955, which states:
“(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work.
(2) Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety.”
Before the plaintiff could successfully invoke sub-s. 1 of s. 37, it would have to be shown that the roof of the Avonmore factory was a place where the deceased had to work and, before sub-s. 2 of s. 37 could be relied on, it would have to be shown that the roof was a place where he was to work. In either case it would have to be established by evidence that, at the least, the deceased was expected to work on the roof. Unfortunately, the evidence led to the opposite conclusion. Not alone had neither O’Brien nor the deceased previously gone onto the roof to do any work, or been asked to do so, but it was the declared intention of Mr. Emery that he alone would go onto the roof to do the work which led to the fatal accident. That work was gratuitously undertaken by O’Brien and the deceased and it was unquestionably outside the range of the services they had been engaged to carry out. Accordingly, I think it must be held that, since the roof was not a place where the deceased had to work or was to work, a plea of a breach of statutory duty under s. 37 of the Act of 1955 cannot be successfully made out.
Since, in my view, the evidence at the trial did not support the claim, either as founded on negligence or as a breach of statutory duty, and since I find nothing to support an expectation that the plaintiff’s case would be any stronger after a retrial, I would, with regret, allow the appeal and dismiss the claim.”
McCarthy J.
“Factories Act, 1955
[Having referred to the provisions of s. 37 of the Factories Act, 1955, the judge continued] The plaintiff’s case on the hearing of this appeal has been significantly placed upon the provisions of sub-s. 1 of s. 37 of the Act of 1955, and particular reference was made to the construction placed by English courts upon the like section of the English Factories Act in Whitby v. Burt, Boulton & Hayward Ltd. 13 ; Whincup v. J. Woodhead & Sons 10 and Lavender v. Diamints Ltd. 12 (which cases are conveniently summarised at p. 62 of Shillman’s Factory Legislation of Ireland). The plaintiff also relied on Wigley v. British Vinegars Ltd. 11 which was cited with approval by Mr. Justice Walsh in Roche v. P. Kelly and Co. Ltd. 7 where, at p. 110 of the report, he said:
“This Court in Daly v. Greybridge Co-Operative Creamery Ltd. 6 (and the House of Lords in Wigley v. British Vinegars Ltd. 11 ) held that the provisions of the Factories Act were not of an entirely general application to any person who happened to be in the premises in the course of his duties; the true distinction was between those who were there working for the purpose of the factory, or at work incidental to it, and those who were not. It quite clearly did not exclude independent contractors as such and an independent contractor is ‘a person employed’ or ‘a person working in’ a factory when he is there working for the purpose of the factory or when his work there is incidental to the purpose of the factory: see Wigley v. British Vinegars Ltd. 11 in this context also.”
None of these English cases were referred to at the trial. Whilst Roche’s Case 7 was concerned with the application of the Building (Safety, Health and Welfare) Regulations, 1959, the predecessors of the Regulations of 1975, the principal statement in respect of the Factories Act is isolated from those Regulations.
Quite apart from authority, and based upon the ordinary canon of construction, it seems to me that words are to be given their literal meaning and that the defendants, as the occupiers of the factory premises, were bound, so far as was reasonably practicable, to provide and maintain safe means of access to every place at which any person, including the deceased, had to work at anytime.
Section 100 in Part XI of the Act of 1955 imposes liability for a contravention of the Act in, or in connection with, or in relation to, a factory; generally speaking that liability is imposed on the occupier. It should not be overlooked that the liability is a criminal one as expressed in the statute; the civil liability derives from the statute but is not so expressed. The term”occupier” is not defined in the statute nor, indeed, in either of the corresponding statutes in the United Kingdom the Factories Act, 1937, and the Factories Act, 1961. I mention this because of the number of cases decided in the English courts, to which reference was made during the course of the argument, relevant to the issue of where the liability lies; whereas no decisions of this Court or of the High Court have been cited on that particular question.
In Turner v. Courtaulds Ltd. 14 the complaint was based on a breach of regulations at an electrical switchboard which was being installed by contractors and had not yet been handed over. The respondents were held liable as occupiers of the factory. In McWilliams v. Sir Wm. Arrol & Co. 15 occupiers of a shipyard were held liable for the failure of contractors erecting a crane to provide safety-belts for workmen at a height. Lack of knowledge of the circumstances was no defence.
In Meigh v. Wickenden 16 Viscount Caldecote C.J. said at p. 164 of the report:
“The occupier’s responsibility under the Act does not depend on proof of personal blame or even on knowledge of the contravention.”
In Smith v. Cammell, Laird & Co. 17 Lord Wright commented (p. 264) on the reasons for what might appear to be a very heavy, if not unfair, liability:
“This may appear somewhat out of the course of the common law, but the statute is remedial. It is for the protection of workpeople, and that object can best, perhaps can only, be secured by fixing liability on a single person and by defining the obligation in absolute and mandatory terms.”
In Whitby v. Burt, Boulton & Hayward Ltd. 13 Denning J., as he then was, said at p. 928 of the report:
“I hold, therefore, that, for the safeguarding of people in factories s. 26 applies, and puts the responsibility on the occupier, even though the building operations are being carried out by a contractor.”
In Hosking v. De Havilland Aircraft Co. 18 Louis J. held the occupiers liable for an unsound plank put over a ditch in the factory grounds by contractors.
Such then is the liability of the occupier pursuant to s. 37 of the Act of 1955. The duty in respect of means of access is confined to the access to every place “at which any person has at any time to work” (sub-s. 1) and when “any person is to work at a place from which he will be liable to fall a distance more than ten feet” (sub-s. 2). Both sub-sections presuppose that the “place” is one where any person has or is to work. It is not confined to employees of the occupier; it, manifestly, extends to any case where a person is lawfully at work.
…..
In the light of all the circumstances to which I have referred, I am satisfied that, prima facie, liability under s. 37 of the Act of 1955 was established. It remains to consider, if they arise, questions of what is reasonably practicable, and the effect of the decision in O’Sullivan v. Dwyer. 9
“Reasonably practicable”
On the adjourned hearing, when counsel for both parties were invited to address arguments in respect of the judgment of Mr. Justice Walsh in O’Sullivan v. Dwyer 9 , Mr. Fennelly compared the provisions of s. 37 with regulation 6 of the building regulations which were considered in O’Sullivan v.Dwyer 9 in effect as to whether or not there was a strict duty. On this question, he submitted that, in construing s. 43 of the Civil Liability Act, 1961, the determination of whether or not it was just and equitable to cast any part of the damage upon the person referred to in s. 43 would be, in part at least, determined by the question as to whether or not the precaution necessary to avoid injury was “reasonably practicable”, but then turned his argument, as I have already indicated, to the question of the application of s. 37 of the Act of 1955. Mr. Comyn, for the plaintiff, confined his argument to the issue raised by O’Sullivan v. Dwyer 9 to which I shall advert.
Other than this, no argument was addressed to the Court on the construction of the term “reasonably practicable.” There is a significant body of persuasive authority in the English and Scottish courts in cases under comparable legislation Lee v. Nursery Furnishings Ltd. 19 ; Schwalb v. H. Fass and Son Ltd. 20 ; Street v. British Electricity Authority 21 ; Edwards v. National Coal Board 22 ; Marshall v. Gotham Co. Ltd. 23 ; Coltness Iron Co. Ltd. v.Sharp. 24
More to the point, the observations of Mr. Justice Henchy in Bradley v.Córas Iompair Éireann 25 at pp. 223-4 would appear to be relevant. I am not to be taken as supporting a view that, where lives are at stake, considerations of expense are any more than vaguely material. Where a danger is very rare, such considerations may be irrelevant. There is nothing rare about the danger of a man being killed in falling through, or from, a roof. I should add, further, that, in my view, the term “reasonably practicable” is not necessarily analogous to the use of the word reasonable in considerations of negligence at common law. Lastly, under this heading of the case, I would share the view expressed in Nimmo v. Alexander Cowan & Sons Ltd. 26 that the onus of calling evidence that no safety measures were reasonably practicable is on the defendants. Such an issue can scarcely arise in the instant appeal since the very measure that would have saved the life of the deceased was one which had been taken earlier by Emery in protection of his own life.
O’Sullivan v. Dwyer 9
Section 43 of the Civil Liability Act, 1961, provides: “In determining the amount of contribution or of reduction of damages under sub-section (1) of section 34 for contributory negligence the court may take account of the fact that the negligence or wrong of one person consisted only in a breach of strict statutory or common-law duty without fault, and may accordingly hold that it is not just and equitable to cast any part of the damage upon such person.”
At p. 285 of the report of O’Sullivan v. Dwyer 9 Mr. Justice Walsh, with whose judgment Ó Dálaigh C.J. and FitzGerald J. agreed, said:
“A single wrong on one side may have done far more to bring about the damage than the sum of the wrongs on the other side. This seems to me to indicate that blameworthiness is involved in the sense of a party being more to blame or less to blame, as the case may be, in the normal sense as if one were to say, in respect of somebody’s action, that he ought to have known better or that he could hardly have been expected to know that. That this is so appears to be recognised by the provisions of s. 43 of the Act of 1961 which provide that where the defendant’s wrong is the breach of strict statutory or common-law duty without fault there shall be no apportionment of fault as against him.”
I pause to express my difficulty in understanding this interpretation of s. 43 which appears to me to permit absolution from fault in such a case but not to compel it. As I understood the argument of counsel for the defendants, this was his view.
Mr. Justice Walsh continued at pp. 285-6: “However, it appears to me that in the apportionment of fault this indicates that, where a defendant’s causative contribution to damage has been his breach of such strict duty, there must also be negligence on his part before any apportionment of the fault can be attributed to him. In my view, this indicates that under our law an action for breach of strict duty is not an action for negligence although some breaches of statutory duty may give rise to an action for negligence: see the definition of ‘negligence’ in s. 2 of the Act of 1961. Breach of strict duty is in itself actionable and appears to me to be a cause of action in which foreseeability is not a necessary ingredient. On the other hand the torts of negligence and of public nuisance, as distinct from the tort of breach of strict duty, are based upon personal culpability arising from the failure to avoid the foreseeable. It appears to me that this conclusion necessarily follows from the statutory distinction which the Act of 1961 makes between the wrong of breach of strict duty and the wrongs importing fault. Of course, it is possible to show that in many (if not most) cases of breach of strict duty there has also been culpable wrong or fault on the part of the defendant, but that is a different situation.
The result, however, appears to be somewhat anomalous. Under the terms of the Act of 1961 a person who has caused damage by the commission of a wrong which amounts to a breach of strict duty is liable in damages to the person injured thereby, even though the wrongdoer was not guilty of any fault, provided that the person injured was not guilty of contributory negligence. The position appears to be that, once he has been found guilty of contributory negligence, the person injured will fail to recover anything if the defendant wrongdoer cannot be shown to have been at fault. For example, the occupier of a factory may be under a strict duty not to use a certain piece of equipment unless it is of adequate strength, which is a continuing obligation; if the equipment proves not to be of adequate strength because of a defect which was not patent and which could not have been discovered by reasonable care or inspection (as in Doherty v. Bowaters Irish Wallboard Mills Ltd. 27 ) and this causes injury, the defendant would be liable in full to the injured party if the latter is not shown to have been guilty of any contributory negligence. On the other hand, if the injured party is shown in such case to have been guilty of any degree of contributory negligence amounting to causation, no part of the fault would be attributed to the defendant unless it could be shown that he was at fault in addition to being guilty of breach of strict duty. In such a case, therefore, it would be necessary to prove that the defendant was guilty not merely of breach of strict duty but also of some other causative factor from which fault could be deduced. It is right, however, to add that in a case of breach of strict duty only, a plaintiff could scarcely be found guilty of contributory negligence unless he had knowledge of the breach of strict duty found against the defendant.”
Whilst the judgment does not say so, I cannot so interpret s. 43 of the Civil Liability Act, 1961, unless the word “may” is to be read as “shall”; there is ample precedent for such interpretation but it was not expressly so held in the judgment of Mr. Justice Walsh, whose later observations at p. 286 of the report of O’Sullivan v. Dwyer 9 were quoted in the judgment of Kenny J. at pp. 226-7 of the report of Carroll v. Clare County Council. 28 Whilst Kenny J. (with whose judgment Mr. Justice Henchy and Mr. Justice Griffin agreed) said that he agreed with the principle in the passage quoted from the judgment of Mr. Justice Walsh, there appears to me to be a qualification on that passage contained in the judgment of Kenny J. Be that as it may, since the observations of Mr. Justice Walsh were related to the manner in which the trial judge should have directed the jury. The issue left to the jury in O’Sullivan v. Dwyer 9 arose directly from regulation 6; no other fault was in issue but 60% of the fault was apportioned to the defendant and 40% to the plaintiff. Accordingly, the defendant’s failure to comply strictly with regulation 6 was sufficient, apparently, to take the case outside s. 43 of the Act of 1961; it seems to me that a like result would follow here, but it may well be that the matter was not considered in that light at all.”
Boyle v. Marathon Petroleum (Ireland) Ltd.
[1999] IESC 14; [1999] 2 IR 460
SC O’Flaherty J.
“1. Since 1977 Marathon Petroleum Ireland Limited, the respondents, have produced gas at sea off Kinsale, County Cork. Mr. Timothy Boyle, the appellant, had worked with them from the beginning of their operations on their off-shore platforms.
2. He met with an accident while working on one of these platforms, Platform Alpha, on 24th January, 1990. He banged his head against a girder while finishing certain cleaning work that he was doing in very cramped conditions on the lower floor of the platform in question.
3. The consequences were serious for Mr. Boyle: he was not able to get back to work; he was 57 years of age at the time of the accident and he had worked all his life since leaving school at a young age.
4. To explain further how the accident occurred, I reproduce this account from the reserved judgment of the learned High Court judge (McCracken J.) of 1st November, 1995:-
5. “When the platform was originally constructed, it consisted of two floors with a space of 22 feet between them. The bottom floor was constructed as the base from which to service the machinery at the top of each well head. This machinery consisted of seven fairly large structures called target blocks and which were colloquially known as Christmas trees, which housed the valve system controlling the wells, and possibly other machinery. [More accurately, the cube-shaped target blocks were at the lower level and the “Christmas Trees”, an extension from the target blocks, were at the next, higher level.] Each block contained several valves which were hand operated and also dials showing the pressure, some of which could be read centrally from the control room, but some of which had to be read on the blocks. These had to be inspected several times each day.
6. Some of the valves were located about 5 feet above the bottom floor and others about 8 feet above it. When the platform first came into operation, it was necessary to use a ladder to reach the top valves, and the ladder had to be shifted for each block. The bottom floor was quite congested as it also contained piping in connection with fire fighting equipment and electrical wiring, and it was difficult to use the ladder. There was a further problem in that the top of each block, which was 12 or 13 feet from the bottom floor, had to be removed periodically for maintenance. This required scaffolding to be erected around the block, which
again was very difficult because of the obstacles on the bottom floor.
7. In 1978, shortly after the platform came into operation, the operatives complained to management that they considered this system to be dangerous. It was decided that the best solution was to build a mid-floor so that all the valves and gauges could be reached from a standing position, and ladders would not have to be used. This floor was put in in 1979. Because of the position of the lowest valves, the height of the area between the mid-floor and the bottom floor is only 4 feet 10 inches at the most. The middle floor is supported by girders or rolled steel joists every 2 feet, which protrude downwards so that the headroom under them is only 4 feet 3 inches.
8. At the time of the accident, the plaintiff was tidying up after having done the cleaning of the bottom floor. He was wearing a helmet of standard design with a visor. Because of the’ height restriction, to walk in the area he had to stoop and he claimed that, because of the visor, it was very difficult to see where he was going. He struck his head on one of the girders and jerked his neck backwards, and also twisted his knee when he fell, although the knee cleared up quickly. He continued to suffer considerable pain in his neck, shoulder and arm for several years after the accident and was unfit for work on the platform.”
…..
16. No legal authorities were opened to the trial judge at the conclusion of the evidence in the case, and he was told that it was a matter for him how to decide the case. I take this to be a concession by the plaintiff’s advisors that he was to decide the question of whether the defendants had done everything “reasonably practicable” as regards the safety of the place in the way that a jury would have decided such a point in the days when personal injury claims such as this were decided by a judge sitting with a jury.
18. Before us, however, rather elaborate submissions were addressed based on the single, extant, ground of appeal which was framed as follows:-
“In the absence of any evidence adduced by or on behalf of the defendants to explain what matters were taken into consideration in deciding to erect the intermediate floor or what risks were assessed or what alternative solutions were considered the finding by the learned judge that the intermediate floor was as safe as reasonably practical was not supported by the evidence or by the weight of the evidence or further and in the alternative was an incorrect inference drawn against the weight of the evidence.”
……21. The Court was referred to the following authorities: White, Civil Liability for Industrial Accidents, Vol I, p. 642 et seq; Edwards .v. National Coal Board [1949] 1 All ER 743; Marshall v. Gotham [1954] 1 All ER 937 ; Jayne v. National Coal Board [1963] 2 All ER 220 ; Daly v. Avonmore Creameries [1984] IR 131 and Lardner v. British Steel plc [1993] 4 All ER 102 .
22. I conclude that the learned trial judge reached the correct decision. I have no doubt that the onus of proof does rest on the defendants to show that what they did what was reasonably practicable. I am also of the opinion that this duty is more extensive than the common law duty which devolves on employers to exercise reasonable care in various respects as regards their employees. It is an obligation to take all practicable steps. That seems to me to involve more than that they should respond that they, as employers, did all that was reasonably to be expected of them in a particular situation. An employer might sometimes be able to say that what he did by way of exercising reasonable care was done in the “agony of the moment”, for example, but that might not be enough to discharge his statutory duty under the section in question.
23. However as against the requirement of a higher duty, it must be noted that the statutory duty extends to “every workplace” on the installation; not just the particular place where the accident happened to occur. As far as the facts of this case were concerned, a balance had to be struck. If the middle floor had not been installed, then undoubtedly the low height hazard would have been removed. On the other hand, the men would have had to go to the lower level to reach the valves much oftener and thus run the risk of tripping over the various obstacles that were there so much more frequently.
24. That is why I conclude that the judge reached the correct conclusion in the circumstances of this case, though he has not vouchsafed the very careful submissions and citation of authority that we were privileged to hear.
25. I would dismiss the appeal.”
Commission v United Kingdom
(Social policy) [2007] EUECJ C-127/05 [2007] ICR 1393, [2007] EUECJ C-127/05, [2007] IRLR 720
“By its application, the Commission of the European Communities seeks a declaration from the Court that, by restricting the duty upon employers to ensure the safety and health of workers in all aspects related to work to a duty to do this only ‘so far as is reasonably practicable’, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 5(1) and (4) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).
Legal context
Community legislation
The 10th recital in the preamble to Directive 89/391 provides:
‘… preventive measures must be introduced or improved without delay in order to safeguard the safety and health of workers and ensure a higher degree of protection’.
According to the 13th recital in the preamble to Directive 89/391:
‘… the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’.
Article 1, in Section I, ‘General Provisions’, of Directive 89/391 provides:
‘1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.
2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.
3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.’
Article 4 of Directive 89/391 provides:
‘1. Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive.
2. In particular, Member States shall ensure adequate controls and supervision.’
Article 5, in Section II, ‘Employers’ obligations’, of Directive 89/391 provides:
‘General provision
1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
2. Where, pursuant to Article 7(3), an employer enlists competent external services or persons, this shall not discharge him from his responsibilities in this area.
3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.
4. 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.
Member States need not exercise the option referred to in the first subparagraph.’
Article 6 of Directive 89/391, which sets out the general obligations on employers, is worded as follows:
‘1. Within the context of his responsibilities, the employer shall 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 employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations.
2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided:
(c) combating the risks at source;
(d) adapting the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;
(e) adapting to technical progress;
(f) replacing the dangerous by the non-dangerous or the less dangerous;
(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors related to the working environment;
(h) giving collective protective measures priority over individual protective measures;
(i) giving appropriate instructions to the workers.
3. Without prejudice to the other provisions of this Directive, the employer shall, taking into account the nature of the activities of the enterprise and/or establishment:
(a) evaluate the risks to the safety and health of workers, inter alia in the choice of work equipment, the chemical substances or preparations used, and the fitting-out of work places.
Subsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must:
assure an improvement in the level of protection afforded to workers with regard to safety and health,
e integrated into all the activities of the undertaking and/or establishment and at all hierarchical levels;
…’
Article 16(1) and (3) of Directive 89/391 provides for the adoption of individual directives in certain areas while stating that ‘[t]he provisions of this Directive shall apply in full to all the areas covered by the individual Directives, without prejudice to more stringent and/or specific provisions contained in these individual Directives’.
Article 18(1) of Directive 89/391 requires Member States to bring into force the provisions necessary to comply with the directive by 31 December 1992.
National legislation
Section 2(1) of the Health and Safety at Work etc. Act 1974 (‘the HSW Act’) provides:
‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.’
Failure to discharge a duty imposed on the employer under section 2 of the HSW Act gives rise to criminal sanctions pursuant to section 33(1)(a) of that Act.
……
Findings of the Court
……
The scope of the employer’s liability for the consequences of any event detrimental to workers’ health and safety
The Commission bases its argument on a reading of Article 5(1) of Directive 89/391 primarily from the point of view of the employer’s responsibility for damage to the health and safety of workers. His liability extends to the consequences of any event detrimental to workers’ health and safety, regardless of whether that event or those consequences can be attributed to any form of negligence on the part of the employer in adopting preventive measures.
It follows that the Commission adopts an interpretation of the provisions of Directive 89/391, and in particular of Article 5(1) thereof, whereby the employer is subject to no-fault liability, whether civil or criminal.
The Court must therefore first examine whether Article 5(1) of Directive 89/391 requires Member States, as the Commissionsubmits, to impose no-fault liability on employers for all accidents which occur in the workplace.
In that regard, it should be noted that, under Article 5(1) of Directive 89/391, ‘[t]he employer shall have a duty to ensure the safety and health of workers in every aspect related to the work’.
That provision makes the employer subject to the duty to ensure that workers have a safe working environment, the meaning of which is specified in Articles 6 to 12 of Directive 89/391 and by various individual directives which lay down the preventive measures to be adopted in certain specific industrial sectors.
On the other hand, it cannot be asserted that the employer should be subject to no’fault liability by reason merely of Article 5(1) of Directive 89/391. That provision simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability.
The Commission submits that its suggested interpretation of Article 5 is borne out by the legislative history of Directive 89/391. It maintains that since the request of the United Kingdom and Irish delegations for the disputed clause to be incorporated in the definition of the employer’s responsibilities was expressly rejected in the course of the discussions of the working party set up by the Council of the European Union, it can accordingly be accepted that there is no-fault liability on the part of the employer.
That argument cannot, however, be upheld. It is apparent from the legislative history of Directive 89/391, and in particular from the joint statement by the Council and the Commission recorded in the minutes of the Council meeting of 12 June 1989, that the insertion of such a clause was suggested in order to resolve the problems that formulating the employer’s duty to ensure safety in absolute terms would have raised in the common’law systems, bearing in mind the obligation on the courts concerned to interpret written law literally.
Against that background, the refusal to insert a clause comparable to the disputed clause in Article 5(1) of Directive 89/391 cannot suffice to justify an interpretation of that provision to the effect that the employer is subject to a form of no-fault liability in the event of accident.
Such an interpretation cannot be based on the scheme of Article 5 of Directive 89/391 either.
Article 5(2) and (3) of Directive 89/391 provides that the employer is not discharged from his responsibilities in the area of health and safety at work where he enlists external experts and that he is not discharged from those responsibilities on account of the workers’ obligations in that field either. In that sense, those provisions serve to explain the nature and scope of the duty laid down in Article 5(1) and it cannot be inferred from them that there is any form of liability under Article 5(1) in the event of accident.
The first subparagraph of Article 5(4) of Directive 89/391 allows Member States the option of limiting 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’.
As Advocate General Mengozzi observed at point 82 of his Opinion, it is apparent from the wording of that subparagraph that it is intended to clarify the scope of certain provisions of Directive 89/391 by explaining the margin of manoeuvre available to the Member States in transposing those provisions into national law. On the other hand, it cannot be inferred from that provision, on the basis of an interpretation a contrario, that the Community legislature intended to impose upon Member States a duty to prescribe a no-fault liability regime for employers.
Lastly, it must be held that the Commission has not shown in what respect the objective of Directive 89/391, consisting in ‘the introduction of measures to encourage improvements in the safety and health of workers at work’, cannot be attained by means other than the setting up of a no-fault liability regime for employers.
It follows from the above that the Commission has not established, to the requisite legal standard, that, in excluding a form of no-fault liability, the disputed clause limits, in disregard of Article 5(1) and (4) of Directive 89/391, employers’ responsibility.
The extent of the duty on employers to ensure the safety and health of workers
Secondly, it is necessary to analyse the Commission’s complaint inasmuch as it alleges that the United Kingdom did not correctly transpose Article 5(1) of Directive 89/391 as regards the extent of the general duty on employers to ensure the safety and health of workers.
In that regard, although the Commission submits that the duty on the employer is absolute, it expressly acknowledges that that duty does not imply that the employer is required to ensure a zero-risk working environment. In its reply, the Commission also acknowledges that, as a result of carrying out a risk assessment, the employer may conclude that the risks are so small that no preventive measures are necessary. In those circumstances, the key point, according to the Commission, is that the employer would remain responsible if an accident were to occur.
As is apparent from paragraph 51 of this judgment, the Commission has not established that, in excluding a form of no-fault liability, the disputed clause limits, in disregard of Article 5(1) and (4) of Directive 89/391, employers’ responsibility. Nor has it succeeded in establishing in what respect the disputed clause, which concerns employers’ criminal liability, can affect the extent of the employer’s general duty to ensure safety resulting from those provisions.
Although the disputed clause lays down a proviso to the employer’s duty to ensure the safety and health of workers in every aspect related to the work as regards what is ‘reasonably practicable’, the significance of the proviso depends on the precise content of that duty. With regard to the arguments put forward by the Commission set out in paragraph 53 of this judgment, the Commission has not sufficiently clarified its interpretation of the content of that duty, apart from civil or criminal liability in the event of accident, and irrespective of the obligations stemming from Article 5(2) and (3) and Articles 6 to 12 of Directive 89/391. Consequently, the Commission has not established in what way the disputed clause, considered in the light of the national case-law cited by both parties, infringes Article 5(1) and (4) of Directive 89/391.
Against that background, it must be pointed out that, in an action brought on the basis of Article 226 EC, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see Case C-287/03 Commission v Belgium [2005] ECR I-3761, paragraph 27, and the case-law cited, and Case C-428/04 Commission v Austria [2006] ECR I-3325, paragraph 98).
Consequently, it must be held that the Commission has not established that the disputed clause limits, in disregard of Article 5(1) of Directive 89/391, the duty of employers to ensure the safety and health of workers. It follows that the failure to fulfil obligations has not been made out as regards that second part of the complaint either.
Having regard to all the foregoing considerations, it must be concluded that the Commission has not established to the requisite legal standard that, in qualifying the duty on employers to ensure the safety and health of workers in every aspect related to the work by limiting that duty to what is reasonably practicable, the United Kingdom has failed to fulfil its obligations under Article 5(1) and (4) of Directive 89/391.
The action brought by the Commission must therefore be dismissed.”
Doherty v. Bowaters Irish Wallboard Mills Ltd.
[1968] I.R.280
Supreme Court. WALSH J. :
“On the 18th June, 1964, the plaintiff was employed as a worker by the defendants in their premises at Athy in the County of Kildare. The defendants’ premises were a factory within the meaning of the Factories Act, 1955, and part of the equipment of that factory was an overhead travelling crane. On the date in question the plaintiff, in the course of his work, was struck by a load being carried on the crane when the hook, from which the load was suspended, broke and the load fell upon the plaintiff. No question of negligence on the part of the plaintiff arises. It was alleged that the accident was entirely due to the negligence of the defendants. At the trial it was contended that the defendants were negligent both at common law and because of alleged failure on their part to comply with the requirements of ss. 34 and 35 of the Factories Act, 1955. Ultimately, so far as statutory duty was concerned, the plaintiff took his stand upon the allegation that there was a breach of the provisions of s. 34 of the Act of 1955 and, for the purpose of this appeal, it is unnecessary to consider the allegation of common-law negligence.
It was also admitted that the accident was due to a defect in the hook of the crane, but it was contended on behalf of the defendants that this was a latent defect of which they did not know, and could not have known, and that the breaking of the hook was not due to any negligence or breach of statutory duty on their part. There was no suggestion that the fracture in the hook was due to anything other than a defect in the hook itself. While there was evidence given of periodic inspections of the crane and of the parts and of the different types and methods of inspection which were available for testing the properties and strength of hooks, such as the one in question, during their working lives, and while there was evidence of the appearance of wear on the bearing surface of the hook in question, it was not necessary to consider this evidence in this appeal. On the assumption, which was the assumption of fact most favourable to the defendants, that the failure of the hook was due to a defect which was not a patent defect but was caused by something in the nature of metal fatigue, as was contended by the defendants, the learned trial judge ruled that, as a matter of law, the obligation imposed upon the defendants by s. 34, sub-s. 1(a), of the Act of 1955 was an absolute duty and that, as was agreed upon the evidence, since on the occasion of the accident the hook proved not to be of adequate strength, the defendants had failed in their statutory duty not to use the hook unless it was of adequate strength.
Sect. 34, sub-s. 1(a), of the Act of 1955 provides that “a chain, rope or lifting tackle shall not be used unless it is of good construction, sound material, adequate strength and free from patent defect.” Sub-sect. 3 of s. 34 defines “lifting tackle” for the purpose of that section as meaning “chain slings, rope slings, rings, hooks, shackles and swivels.”
Consequent upon the ruling of the trial judge the case went to the jury on the question of damages only. The defendants’ appeal is upon the grounds that the trial judge was wrong in law in his ruling and that the damages of £72,500, assessed by the jury, were unreasonable and excessive.
In this Court it has been submitted on behalf of the defendants that s. 34, sub-s. 1(a), of the Act of 1955 does not impose an absolute liability because, it is said, in contrast to the provisions of s. 33, sub-s. 1, of the Act which deals with hoists or lifts, there is no obligation created to do anything in the nature of maintaining the hook; and that any obligations of this type created by s. 34 of the Act are confined to those set out in paras. (d), (e) and (f) of sub-s. 1 of s. 34 which requires, at para. (d), that the lifting tackle should be thoroughly examined by a competent person at least once in every period of six months and, at para. (e), that the lifting tackle shall not be taken into use in a factory for the first time unless it has been tested and thoroughly examined by a competent person and a certificate of such a test and examination, specifying the safe working load, has been obtained and, at para. (f), that the lifting tackle shall be annealed at least once in every fourteen months unless a certificate of exemption is granted by the Minister for Industry and Commerce. It was submitted that the words “shall not be used”in para. (a) of s. 34, sub-s. 1, refer only to the first user or the first putting into use of the hook and do not impose a continuing obligation. It was also submitted on behalf of the defendants that the words “and free from patent defect” qualified all the preceding requirements.
……
I do not think that the contrast with s. 33, sub-s. 1, which provides that hoists and lifts “be properly maintained,”really advances the defendants’ case. It is not contested that this duty to maintain is an absolute duty and in s. 2 of the Act of 1955 the word “maintained” is defined as meaning”maintained in an efficient state, in efficient working order, and in good repair.” This obligation is not discharged merely by taking reasonable care and, in some of the cases referred to by the defendants in the course of their argument, a similar provision in Britain has been held to import an absolute duty. If, therefore, the statutory obligation in s. 33, sub-s. 1, of maintaining in good repair is an absolute duty, it is difficult to see by what reasoning an obligation not to use the hook unless it is of adequate strength is not, by its very terms, also absolute.
One must, therefore, look at s. 34 itself to see whether there is anything in the section which qualifies or weakens the absolute nature of the terms of the duty imposed. It is quite clear from a perusal of the different paragraphs of the section, and indeed of other sections of the Act, that the legislature made a distinction between taking something into use in a factory for the first time and the user described in the phrase “shall not be used.” In my view the distinction emphasises the continuing nature of the duty imposed by s. 34, sub-s. 1(a), and, far from weakening its primary meaning, rather strengthens it by contrast. The phrase “free from patent defect” is, in my view, an additional duty and not a qualification of the duty that the lifting tackle should be of good construction, sound material, and adequate strength. The freedom from patent defect is itself an absolute obligation and such a defect is not one which is captured under the headings of good construction, sound material or adequate strength. It appears to me that, if the lifting tackle can be shown not to be of either good construction, sound material or adequate strength, it is not necessary to show that the defect was also a patent one. The existence of the particular obligations imposed by paras. (d), (e) and (f)of sub-s. 1 of s. 34 cannot, of themselves, be held to imply that they are the only obligations imposed once the lifting tackle has been brought into use. The obligations imposed by these particular paragraphs are clearly of a precautionary character. The object of these particular obligations is to compel the occupiers of factory premises to take certain precautionary and preventative measures designed to reduce the possibility of accident, but that is not in the least inconsistent or incompatible with a legislative policy which would impose an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate objects. In my view the primary meaning of para. (a) of s. 34, sub-s. 1, of the Act of 1955 is that lifting tackle shall not be used at any time unless it be of good construction, sound material, and adequate strength; and that, if there is an absence of any of these qualities, whatever be the reason, there is a breach of the obligation. I find nothing in the other paragraphs of the section, or indeed in any of the other sections of the Act, which qualifies or modifies the absolute nature of this obligation, and in my view the learned trial judge was correct in his ruling upon this point. I would disallow this ground of the defendants’ appeal and would, therefore, disallow his appeal on the issue of liability.”
Galashiels Gas Co Ltd v Millar
[1949] UKHL 2 [1949] 1 All ER 319 [1949] AC 275]
HL LORD MORTON OF HENRYTON .
“Section 22 (1) of the Factories Act, 1937, is in the following terms:—
“Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.”
The statutory duty which, it is alleged, the appellants have failed to discharge is contained in the words, “Every hoist or lift shall be properly maintained” in section 22 (1) read in conjunction with the definition of “maintained” in section 152 (1):
“‘Maintained’ means maintained in an efficient state, in efficient working order, and in good repair.”
I think there can be no doubt that this subsection imposes a continuous obligation on the appellants. I shall shortly consider the precise nature of that obligation. Equally there can be no doubt, in view of the Lord Ordinary’s findings of fact, that the brake of the lift in question was not in efficient working order at the time when the accident happened, though it would appear to have worked efficiently during the periods before and after the accident.
The contention of the respondent, which has so far succeeded, is that she has established a breach of statutory duty by the appellants simply by proving that the brake was not in efficient working order at that time. If this contention is sound, the appeal must fail, for contributory negligence by the deceased workman has been negatived, and there can be no doubt that the failure of the brake to operate efficiently caused the death of the deceased.
The appellants contend that no breach of statutory duty has been proved. They contend that their statutory duty is to take such active steps as will ensure that the lift is in efficient working order, and that the respondent cannot succeed unless she can point to some particular step which the appellants omitted to take and which would have prevented the accident. They say truly that the respondent cannot point to any such step, and failed to prove any specific cause for the failure of the brake to operate. They rely strongly upon the following passages in the judgment of the Lord Ordinary (1948 S. C. at p. 195):
“I am satisfied that the defenders took every practical step to ensure that the lift mechanism worked properly and was safe to use. I am equally satisfied that the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain.… That the defenders took all reasonable steps to provide a suitable lift and to maintain it properly is to my mind established beyond doubt.”
In my view, the Lord Ordinary supplied the correct answer to the whole of this argument when he said:
“In my opinion … there is imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order, and in good repair.”
The words of the subsection are imperative “shall be properly maintained” and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. It is quite true that the subsection, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the subsection must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take. This would often be a difficult matter, more especially if the cause of the failure of the mechanism to operate could not be ascertained. The statute renders the task of the injured workman easier by saying, “You need only prove that the mechanism failed to work efficiently and that this failure caused the accident.”
Counsel for the appellants contended that a decision against his clients “Would go further than any decided case.” I do not agree, but, even if I did agree, I should not be unduly perturbed. Your Lordships were not referred to any decision on this particular subsection, but there are other statutory provisions for the protection of workmen which have been held to impose an absolute and continuing obligation upon employers. See for instance, Smith v. Cammell Laird & Co .; Riddell v. Reid; Carroll v. Andrew Barclay & Sons [1948] AC 477 . In the lastmentioned case this House had to decide a question as to the nature of the fencing which was required under section 13 (1) of the Factories Act, 1937, but no member of the House doubted that the obligation as to fencing was absolute and continuous. Lord Normand observed:
“The subsection imposes an absolute obligation in the sense that the obligation, whatever its meaning and effect, must be actually fulfilled and not merely that the occupier of the factory must do his best to fulfil it.”
Counsel for the appellants relied upon the word “properly” in section 22 (1), and contended that the presence of this word indicates that the obligation of the employers is limited. I cannot agree. If the word “maintain” alone imposes upon the employers the absolute obligation, I cannot see that the addition of the word “properly” can lessen their obligation. In the case of Cole v. Blackstone & Co. [1943] KB 615, Macnaghten, J., had to consider section 25 (4) of the same Act which provides, “all ladders shall be soundly constructed and properly maintained.” The facts were that, when a workman named Cole was ascending a ladder, a rung gave way, with the result that he fell to the ground and received injuries from which he died. The ladder was subsequently taken to pieces and examined. The strings were made of deal and the rungs of coppice oak, and both the strings and all the rungs, including that which had given way, were found to be in perfect condition. The rungs were screwed to the strings with three-inch steel screws, and it was found that the screws holding the rung which had given way had broken in half at a point between the rung and the string and that the fractures were due to corrosion. All the other screws were in perfect condition. A few weeks before the accident happened the ladder had been inspected by a “safety first” committee appointed by the defendants, to which the workmen elected their own representatives, and nothing had been found requiring attention. Cole, who used the ladder several times a day, had never made any complaint about it. Cole’s widow was successful in an action alleging breach of the statutory obligation imposed by section 25 (4), and Macnaghten, J., said, in regard to the words “properly maintained”:
“Mr Marshall, for the defendants, submitted that the statutory duty to keep the ladder in an efficient state and in good repair is not an absolute duty, and that the words of the Act must be qualified to this extent that, if the employer took all reasonable steps to see that the ladder was in an efficient state and in good repair, he would have discharged his duty. In support of this contention he relied on the observations of Lord Wright in English v. Wilsons and Clyde Coal Co., while Mr Dixon, on the other hand, relied on the observations made in Riddell v. Reid . I see no ground for qualifying the words of section 25 (4) of the Factories Act, 1937. The duty to keep all ladders in an efficient state and in good repair appears to me to be as absolute as the duty imposed by the Act to fence all dangerous parts of machinery. It is true that the defendants took great care for the safety of their men, and that this particular failure was one which, apparently, nobody could have anticipated.”
Later, the learned Judge added:
“The ladder was not in fact in an efficient state or in good repair on the morning of the accident. The plaintiff, therefore, is entitled to recover compensation.”
I agree with the reasoning and with the conclusion of Macnaghten, J., and, in my view, a similar construction should be placed on the same phrase “properly maintained” where it appears in section 22 (1). I have carefully considered all the other sections of the Act which were mentioned in the course of the argument on the present appeal, but I can find nothing in them which throws doubts upon this view.
Counsel sought to rely upon the observation of Lord Atkin in Caswell v. Powell Duffryn Associated Collieries, Limited :
“The statute does not in terms create a statutory cause of action. It does not, for instance, make the employer an insurer.”
That observation of does not assist the appellants, when read in its context. Lord Atkin went on to say:
“The person who is injured, as in all cases where damage is the gist of the action, must show not only a breach of duty but that his hurt was due to the breach.”
So in the present case the respondent would have failed in her action if the Lord Ordinary had held that there was a breach of duty, but that such breach of duty was not the cause of the fatal accident.
Finally, counsel sought to derive assistance from certain observations of the Lord President in the case of Reilly v. William Beardmore & Co. In that case the First Division had to consider section 23 (1) (a) of the Act, which provides, “No chain, rope or lifting tackle shall be used unless it is of good construction, sound material, adequate strength and free from patent defect.” The last five words are not present in the section now under consideration, and, in my view, the Lord President’s observations, properly construed, contain nothing which is inconsistent with the views which I have already expressed as to the absolute duty imposed by section 22 (1).”
LORD MACDERMOTT
“But two questions remain for determination in this appeal. The first is as to the nature of the duty imposed by subsection (1) of section 22 of the Factories Act, 1937; the second is whether the respondent has proved a breach of the duty arising under that subsection. Section 22 (1) of the Act of 1937 reads thus:—
“Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.”
To this must be added the following definition from section 152 (1):—
“‘Maintained’ means maintained in an efficient state, in efficient working order, and in good repair.”
Leaving out of these provisions the words which are not immediately material, the terms of the obligation are:
“Every … lift shall … be properly maintained … in efficient working order.…”
If this means that every lift shall be kept continuously—or at least while it is available for use as a lift—in efficient working order the nature of the obligation is clear. It then falls into a category long recognised and firmly established by authority; it is a strict or absolute duty and neither intention nor lack of care need be shown in order to prove a breach of it. This was not, indeed, disputed, but Mr Guest, on behalf of the appellants, submitted that on the true construction of the subsection such was not its meaning. He contended that, in this context, “maintained” did not connote the continuance of a state, and he relied upon the adverb “properly” as introducing something less than an absolute standard. If, he said, the appellants had done all that was reasonable and proper to “maintain” the lift and its mechanism, they had not fallen short of what the statute requires.
The word “maintain” when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition, as when one says of someone that “he maintains his buildings just as they were.” But on occasion it takes colour from the work of maintenance and is used in reference to the acts done or requisite to be done in the course of maintenance, as when one says of another that “he maintains his buildings methodically.” This latter use gives the word “maintained” in relation to machinery rather the meaning of “serviced” or “looked after” or “attended to”—I doubt if there is an exact synonym—and it was in this sense, according to the appellants’ argument, that the word ought to be read in section 22 (1). If that argument prevails the appeal should succeed, as the Lord Ordinary has found that the appellants took “every practical step to ensure that the lift mechanism worked properly and was safe to use,” and, again, that “the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain.”
Had the Legislature thought fit not to define “maintained” Mr Guest’s submission on this aspect of the case would have encountered less difficulty. But, when the terms of the definition are regarded, the meaning for which he has contended is, in my opinion, at once displaced. To my mind they indicate conclusively that in section 22 (1) “maintained” is employed to denote the continuanceof a state of working efficiency. In the ordinary use of language one cannot be said to maintain a piece of machinery in efficient working order over a given period if, on occasion within that period, the machinery, whatever the reason, is not in efficient working order. In short, the definition describes a result to be achieved rather than the means of achieving it. I do not think the use of the word “properly” weakens or detracts from the compelling effect of this definition. Why exactly “properly” was inserted is perhaps a matter of speculation, as the Act does not appear to furnish any very obvious explanation. But, however this may be, the word is certainly not incompatible with the duty in question being absolute in character. There may be more than one way of discharging such a duty, and I do not see that the quality of the duty need be affected by an additional obligation to discharge it in a proper manner.”
LORD REID
“I am satisfied that the defenders took every practical step to ensure that the lift mechanism worked properly and was safe to use. I am equally satisfied that the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain.”
The question at issue in this case is the nature and extent of the duty imposed on employers by section 22 (1) of the Factories Act, 1937. That subsection requires that “every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.” The word “maintained” is defined in section 152 as meaning “maintained in an efficient state, in efficient working order, and in good repair.” It has been held by the Lord Ordinary and by the learned Judges of the Second Division, Lord Mackay dissenting, that this section imposed upon the appellants an absolute duty to have the lift in efficient working order, that the accident was caused by its not being in efficient working order, and that therefore the respondent is entitled to damages.
The appellants’ case is that section 22 (1) of the Act does not impose an absolute duty to keep lifts in efficient working order and that a pursuer cannot succeed without averring and proving the nature of the defect which prevented the lift from being in efficient working order. It was argued that the requirement is, not that the lift shall be in efficient working order, but that the employer shall take all necessary steps to ensure that it is so, and therefore that a pursuer must show what it was that the employer could have done to prevent the accident but did not do. But it is clear, as the appellants’ counsel properly admitted, that the employer’s duty under the section goes beyond a duty to take care. It was admitted that the employer is liable in damages where the defect could not have been discovered before the accident by any examination which any reasonable man would have undertaken, and even where the defect was a latent defect which could not have been discovered by examination before the accident of the defective part of the mechanism. In such cases it would have been physically possible to prevent the accident. In the present case, as no one has discovered the cause of the defect, the respondent cannot show whether or how the accident could have been prevented, and therefore, it is said, cannot establish any breach of duty by the appellants.
I can understand a duty to exercise a high degree of care and I can understand an absolute duty under which the mere fact that a machine is not in efficient working order entails liability if that is the cause of injury to a workman, but I find it hard to understand the nature of a duty which falls short of an absolute duty but yet cannot be discharged even by the highest degree of care, and equally hard to understand what practical object could be achieved by enacting a duty of this character. The result would be that the pursuer would have to undertake an investigation of the precise nature of the defect which would often be difficult and expensive. Where this investigation was successful, it would be no defence for the employer to show that he could not by any exercise of care have prevented the accident. But where this investigation failed, as it did in this case, the employer would be under no liability. I think that clear words would be necessary before it could be held that such was the intention of the Legislature.
Much stress was laid by the appellants’ counsel on the word “properly” in section 22 (1). It was argued that the introduction of this word must be held to have some effect; that, if the section without this word would have imposed an absolute duty, the insertion of the word could not increase the obligation on the employer, so it must have been intended to reduce that obligation. “Properly” must refer to the conduct of the employer so that the section requires, not that the mechanism shall always be in efficient working order, but that the employer shall take such active steps as are necessary to ensure that it is in efficient working order. It follows that, if a pursuer cannot specify any step which could have been taken by the employer to avoid the accident, he cannot show that the employer was in breach of the statutory duty; as the present respondent has not proved the cause of the accident, she cannot point to any particular step which could have been taken to avoid it. I cannot attribute any such effect to the use of this word. I think that there may be a much simpler explanation of its use. If the definition of “maintained” in section 152 (1) had been written into section 22 (1), there would have been no need to insert the word “properly.” The relevant part of the subsection would then have read:—
“Every hoist or lift shall … be maintained in an efficient state, in efficient working order, and in good repair.”
But if the definition were not written in and the word “properly” omitted, the result—”every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be maintained”—would have been so bald as to be misleading. I doubt whether the word “properly” was inserted for any purpose beyond rounding off the sentence. In any event it does not appear to me to alter the sense of the sentence. If the duty is proper maintenance and maintenance is defined as maintenance in efficient working order, then, once it is established that the duty goes beyond a duty to exercise care, the fact that on a particular occasion the mechanism was not in efficient working order shows that there had not been proper maintenance. Reference was made to a number of sections of the Act where the word “maintained” occurs, and particularly to sections 24 and 25 where the phrase “properly maintained” is used, but I do not think that a comparison of these sections with section 22 assists materially the decision of the present case.
A number of previous decisions were canvassed in argument. In Cole v. Blackstone & Co., the accident was caused by the rung of a ladder giving way. The rungs were held in place by steel screws. It was found after the accident that the screws which had held the rung which had given way had broken owing to corrosion, but that all the other screws were in perfect condition. The corroded screws broke when the injured workman stepped on the rung which it held. The case was laid on a breach of section 25 (1) of the Factories Act, 1937, which provides that “all ladders shall be soundly constructed and properly maintained.” Macnaghten, J., having held that the ladder was soundly constructed said:
“On the question whether the ladder was in an ‘efficient state’ and in ‘good repair’ on the morning of the accident, the fact that the rung gave way establishes, to my mind, beyond question, that the ladder was not in an efficient state and was not in good repair at that time. Mr Marshall, for the defendants, submitted that the statutory duty to keep the ladder in an efficient state and in good repair at that time. Mr Marshall, for the defendants, submitted that the statutory duty to keep the ladder in an efficient state and in good repair is not an absolute duty, and that the words of the Act must be qualified to this extent that, if the employer took all reasonable steps to see that the ladder was in an efficient state and in good repair, he would have discharged his duty. In support of this contention he relied on the observations of Lord Wright in Wilson and Clyde Coal Co. v. English, while Mr Dixon, on the other hand, relied on the observations made in Riddell v. Reid . I see no ground for qualifying the words of section 25 (4) of the Factories Act, 1937. The duty to keep all ladders in an efficient state and in good repair appears to me to be as absolute as the duty imposed by the Act to fence all dangerous parts of machinery.”
The appellants’ counsel sought to displace this interpretation by referring to a number of dicta; he was unable to cite any decision which was inconsistent with it. In Lewis v. Denye, Viscount Simon, L.C., quoting from a speech of Lord Atkin in an earlier case—Caswell v. Powell Duffryn Associated Collieries, Limited —said:
“The statute does not in terms create a statutory cause of action. It does not, for instance, make the employer an insurer. The person who is injured, as in all cases where damage is the gist of the action, must show not only a breach of duty but that his hurt was due to the breach.”
That does not appear to me to help the appellants; it is entirely consistent with the existence of an absolute duty. However absolute the duty may be, a pursuer cannot succeed unless he proves that his injury was caused by a breach of that duty. In Lewis v. Denye there had been a breach of absolute duty, but the plaintiff’s action failed because the cause of his injury was held to be, not that breach of duty, but his own negligence in failing to use a safety device with which he had been furnished. It was accordingly appropriate to restate that such a duty does not make the employer an insurer. If, in the present case, the appellants had proved that George Millar’s death was due to his own negligence and not to their breach of duty they would have succeeded. In Smith v. Cammell Laird & Co., Lord Atkin said:
“It is precisely in the absolute obligation imposed by statute to perform or forbear from performing a specified activity that a breach of statutory duty differs from the obligation imposed by common law, which is to take reasonable care to avoid injuring another.”
It was argued that Lord Atkin’s reference to “a specified activity” means that the pursuer must specify the act, the doing or neglect of which led to the plant not being safe. I do not so read the words. In that case shipbuilding regulations made under the Factory and Workshop Act had provided that all staging should be securely constructed of sound and substantial material and should be maintained in such condition as to ensure the safety of all persons employed. A workman fell and received injuries as a result of there being a defect in staging, but no point was made in the case about the precise nature of the defect. I think that Lord Atkin was referring to an activity specified in the statute or regulation; he cannot have meant that there was an absolute obligation to perform or forbear from performing some activity not so specified. Reference was also made to a passage in the speech of Lord Warrington of Clyffe in M’Mullan v. Lochgelly Iron and Coal Co., quoted by Lord Thankerton in Riddell v. Reid, beginning with the words “If the obligation is to do or abstain from doing “a particular thing” and it was argued that the particular thing which it was the obligation of the appellants to do in the present case to avoid the accident has not been discovered. I do not agree. The obligation of the appellants was that which is expressed in the Act—to maintain the hoist in efficient working order. That is the particular thing which they were under a duty to do. How they did it or how they failed to do it was their concern. It was not the concern of the workman and is not the concern of the respondent. None of the other authorities cited appears to me to have any direct bearing on the present case or to aid in its decision. 1 agree with the opinions of the majority of the Judges of the Second Division and I would dismiss this appeal.”
Everitt v. Thorsman Ireland Ltd.
[1999] IEHC 7; [2000] 1 IR 256
Kearns J
“1. The Plaintiff who is from Drogheda was born on the 3rd of October 1947 and until June 1993 was employed as a general assistant by the first named Defendants who make plastic fixings for the building industry. At the time of his accident on the 24th of June 1993 the Plaintiff had been in the employment of the first named Defendants for some seventeen years.
2. On the morning of his accident the Plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose when the lever snapped and broke, causing the Plaintiff to fall backwards onto the ground thereby sustaining an injury in respect of which these proceedings are brought.
3. The evidence establishes that the bin and lever with which he was working on the day of his accident had been supplied to his employers some months previously by the second named Defendants to whom the first named Defendants wrote a letter on the 25th of June 1993 advising them of the fact of the accident and indicating that Messrs.Thorsman were accepting no liability for what had occurred. A follow up letter on the 24th of August 1993 sought full indemnity from Jumbo Bins on the basis that the accident had occurred while one of their employees was operating a jumbo bin, which had remained the property of the second named Defendant.
4. Two years passed before Jumbo Bins sought to involve the third named Defendants in the proceedings, proceedings to which they were eventually joined on the 16th of June 1997, on the basis that they in turn had supplied the jumbo bin and lever to the second named Defendants.
….
22. Accordingly, a question falls for determination as to the responsibility, if any, of an employer for an injury sustained by an employee in circumstances where a tool supplied by a third party contains a latent defect which results in an injury to the employee.
As McMahon and Binchy (1990 Ed.) points out at p. 327:-
“The employer has the duty to take ‘reasonable care’ to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”
23. The authors point out at p. 328:-
“It should, however, be pointed out that an employer is not an insurer of the safety of the equipment supplied to his employees. As Kingsmill Moore J. stated in the Supreme Court decision of Dowling -v- C.I.E.,
‘This duty is not a warranty but only a duty to exercise all reasonable care’.
Thus, where an employer buys from a supplier a standard tool, whose latent defect he has no means of discovering, he may be relieved of liability in negligence in the event of injury to an employee.”
24. In this regard, the first named Defendants relied on the decision of the House of Lords in Davie -v- New Merton Board Mills Limited and Anor. (1959 AC 604).
25. In that case a maintenance fitter was knocking out a metal key by means of a drift and hammer when, at the second blow of the hammer, a particle of metal flew off the head of the drift and into his eye, causing injuries. The drift, which had been provided for his use by his employers, although apparently in good condition, was of excessive hardness, and was, in thecircumstances, a dangerous tool. It had been negligently manufactured by reputable makers, who had sold it to a reputable firm of suppliers who, in turn, had sold it to the employers, whose system of maintenance and inspection was not at fault. The fitter claimed damages for negligence against his employers on the ground that they had supplied him with a defective tool.
26. The House of Lords held that the employers being under a duty to take reasonable care to provide a reasonably safe tool, had discharged that duty by buying from a reputable source a tool whose latent defect they had no means of discovering.
27. This unanimous view of the House of Lords is in accord with the Irish judgments in Bissett -v- Heiton & Co. (1930 I.R. 17) and Bissett -v- Heiton & Co. (No. 2) (1933 I.R. 242).
28. The Plaintiff for his part relied upon a decision of the Supreme Court delivered on the 18th November 1992 in Connolly -v-Dundalk Urban District Council and in particular to the passage of the judgment of O’Flaherty J. as follows:-
“The common law duties to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property, which is the instant case – are such that they cannot be delegated to independent contractors so as to avoid the primary liability that devolves on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee. That is not to say, of course, but that the employer on occasion is entitled to and very often should get the best expert help that he can from an independent contractor to perform these duties. If he does so and the contractor is negligent causing injury to an employee, the employer retains a primary liability for the damage sufferedthough if he is not himself negligent he may obtain from the contractor a contribution to the damages and costs which he has to pay which will amount to an indemnity.”
29. Careful reading of this passage, which was obiter, certainly conveys to me that the learned Judge recognised that the actual common law duty is “to take reasonable steps to provide safe plant and a safe place of work”, and in the particular case (which concerned premises and not a tool) the employers were in any event found to be in default in two respects.
30. What further steps could the employers have taken in the instant case? Short of having the lever assessed by an expert in metallurgy or breaking the lever with a view to determining its maximum stress resistance it is difficult to see what they could have done. It was a newly purchased tool which appeared strong enough for the job and had been purchased from a reputable supplier and there is no suggestion to the contrary.
31. I therefore hold that the claim in common law against the employer in this instance fails.
32. That leaves open the question of statutory duty. The only breach of statutory duty upon which the Plaintiff relies (and in this regard no details of breach of statutory duty appear either in the original civil bill or amended statement of claim) is the suggestion that under Section 34 (1) (a) of the Factories Acts, 1955, the Defendants failed to provide “lifting tackle” which was of good construction, sound material, adequate strength and free from patent defect. I do not believe the lever in question can be regarded as “lifting tackle” and as the decision inDoherty -v- Bowaters Irish Wool Board Limited [1968] IR 277 related to a hook which was carrying a load which was suspended from a travelling crane, that case does not seem to me to be a binding authority in the present instance.
33. What does, however, seem to me to cover the situation is regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (SI No 44 of 1993) which imposes virtually an absoute duty on employers in respect of the safety of equipment provided for the use of their employees.
34. Article 19 provides:-
“It shall be the duty of every employer, to ensure that –
(a) The necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”
35. Article 20 requires employers to comply with the requirements of the fifth schedule which includes the following requirement at Requirement 7:-
“Where there is a risk of rupture or disintegration of parts of work equipment, likely to pose significant danger to the safety and health of employees, appropriate protection measures shall be taken.”
36. Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employers in this case, these regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. AsO’Flaherty J. pointed out an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.
37. Accordingly, I find there has been breach of statutory duty on the part of the first named Defendant in this case.”
Director of Public Prosecutions -v- Kilsaran Concrete Limited
[2017] IECA 112
Judgment of the Court delivered by Mr Justice Edwards on 6th April 2017
Introduction
1. On the 18th of February 2016 the respondent, having pleaded guilty to a count of failing to manage and conduct work activities in such a way as to ensure, so far as was reasonably practicable, the safety, health and welfare at work of the employees of an undertaking, resulting in personal injury to an employee, contrary to Section 8(2)(a) as it relates to Section 8(1) of the Safety, Health and Welfare at Work Act, 2005 and Section 77(9)(a) of the Safety, Health and Welfare at Work Act 2005, was ordered to pay a fine of €125,000 with six months to pay, and distress in default. The charge arose out of an industrial accident which resulted in the death of Barry Gargan on the 6th of September 2011.
2. The director now seeks a review of the sentence imposed on the grounds that it was unduly lenient.
The Circumstances of the Case
3. The respondent is a limited liability company engaged in the business of manufacturing concrete products such as building blocks and paving stones. It operates from premises at Piercetown, Dunboyne, County Meath, incorporating a quarry and manufacturing facility, and employs approximately 400 people.
4. About 16 months prior to the incident, the respondent purchased a fully automated piece of machinery ( the “wet cast production line”) for the manufacture of pre-cast and standardised concrete products. The machine uses standardised moulds. The process starts with an empty mould. While moving along a conveyor the mould is filled with liquid concrete and then levelled off. It is then put onto a drying rack until the product hardens. It is later retrieved from the drying rack, a suction device removes the dried product from the mould, the finished concrete product is removed, the empty mould is then lifted by a mechanical arm and moved on to an adjacent vibrating table where any dried concrete remnants are shaken from the mould in a cleaning process, the cleaned mould is then removed and ultimately returns by conveyor to the filling line, where the process starts all over again.
5. When this machine is in use for the purpose for which it was designed, at no point in the manufacturing process is manual intervention necessary and the process is controlled externally by an operative using a control panel and a second individual carrying out a visual examination of the finished product.
6. The wet cast production line is enclosed within a safety cage to prevent access to the unguarded moving parts, and access to the caged area is controlled by a safety gate, the opening of which cuts off power to the machine.
7. A decision was made to use the wet-cast production line in an unorthodox manner to make bespoke products, ie., so-called Ballymun and Limerick kerbs, which were too big to be produced with the machine in automatic mode and which required the use of custom made wooden moulds, which could not be shaken or automatically cleaned.
8. The use of the wet cast production line for the manufacture of “Ballymun kerbs” or “Limerick kerbs” developed over a number of distinct phases.
9. The respondent received an order for Limerick kerbs in August 2010 and these were initially manufactured entirely by hand, using a custom made mould filled by bucket with wet concrete.
10. Due to the labour intensive and slow nature of this process, it was decided to use the wet cast production line in the manufacturing process as follows:
a) The door of the safety cage would be opened and left open.
b) The moulds would be individually brought into the safety cage and placed on the conveyor belt immediately before the dosing station.
c) The operative would leave the safety cage, closing the door behind him. The mould would be filled and taken to the drying area.
d) The process would be repeated.
11. The process would continue to completion.
12. The following day the process would be reversed as follows:
a) The mould is delivered from the drying area.
b) Two operatives would enter, leaving the safety door open and manually remove and disassemble the mould.
c) The two operatives would exit, with the disassembled mould, closing the door behind them.
d) The process would re-start.
13. In May/June of 2011, the respondent received a large order for Ballymun kerbs, and at some point a decision was made to leave the operatives inside the safety cage during the de-moulding process, with the broken down moulds being passed over the safety cage for reassembly. While this lead to an improvement in production speed, it remained slow as the moulds were being reassembled outside and therefore could not be fed back into the production line on a constant basis.
14. To address this shortcoming a decision was made to reassemble the moulds inside the safety cage. As there were no workstations inside the safety cage, the cleaning or vibrating table was used to re-assemble the mould, as it was the only flat surface available. In the normal way, a mechanical arm placed moulds onto the vibrating table for cleaning on a continuous basis and consequently this had to be overridden and shut off to allow the vibrating table to be used to re-assemble the moulds.
15. As the wet cast production line was only used to make Ballymun kerbs in the morning and had to be left in automatic mode at the end of the shift in the evening to complete the cleaning cycle, the operator at the control panel was required to disable the cleaning arm before commencing work in the morning.
16. On the morning of the 6th of September 2011, the operator at the control panel forgot to disable the cleaning arm. The deceased, Mr.. Barry Gargan, and a colleague entered the safety cage as normal and when the deceased commenced reassembling the mould on the vibrating table, the cleaning arm descended, crushing him and killing him instantly.
17. A statement from Mr.. Phelim Tierney, a student who had been working at the plant over the summer, told the court that he had earlier been involved in a “near miss” incident involving the same procedure, in which he was almost killed.
18. Christ Bagnall, the most experienced operative at the plant, said in a statement which was read to the Court that he had previously expressed concerns over the safety of this particular procedure, stating:
“The old process of manually pouring kerbs was deemed too slow. Carl asked my opinion about using the wet cast plant to manufacture the kerbs but I told him, ‘It’s nothing to do with me. You’re the boss.’ When Carl explained the proposed procedure to me, which included having two men inside the safety zone to de mould the kerb, I told him I wasn’t happy with this as it was not the safest way of doing it.”
19. The “Carl” referred to was Mr.. Carl Griffin, a production engineer employed by the respondent at the time, and the person within the respondent’s company who had instigated the unorthodox procedure just described. Mr.. Bagnall indicated that notwithstanding the concerns that he had raised with Mr. Griffin concerning the safety of the proposed procedure, Mr. Griffin insisted that that procedure should nonetheless be used.
20. Mr. Griffin was co-accused with the respondent company. He also pleaded guilty and received a fine of €10,000. The applicant has not sought a review of that sentence.
21. The court was told that the Health and Safety Authority (HSA) accepted that the nature of the respondent’s business, and particularly quarrying, was comparatively high risk. Despite this the respondent was considered by the HSA to have a relatively good safety record.
22. The respondent has one previous conviction recorded in 2006 for an offence under the Safety, Health and Welfare at Work Act 2005 arising out of a serious accident in a quarry operated by it, where an operator fell off a working platform resulting in the operator receiving serious injuries. The respondent was fined €100,000.
23. The sentencing court was provided with certain financial information concerning the respondent company. While some of this information may be commercially sensitive, and for that reason will not be specifically alluded to save to the extent necessary, it can be stated that the respondent is a substantial entity with very significant assets and turnover. While in common with other businesses involved with the construction industry it had seen a significant downturn in its business for a number of years from 2008, resulting in trading losses in that year and for a number of years thereafter, by the date of sentencing it was well on the road to recovering the ground lost and indeed had achieved a breakeven trading situation, with a forecast for an early return to trading profits.
24. The evidence before the sentencing court was that the respondent had been co-operative with the HSA’s investigation into the accident, admitting that it was in the wrong and accepting blame for the tragedy. The plea had been entered at the earliest opportunity. The company had apologised to the Gargan family, and its directors had expressed remorse for what had occurred. It was acknowledged that the late Mr. Gargan had been an excellent employee.
Victim Impact Evidence
25. The sentencing court heard evidence from the deceased man’s father, Brian Gargan, who speaking on behalf of the Gargan family, read a pre-prepared victim impact statement into the record. The court also heard in a similar way from Ms Shauna Clutterbuck, the deceased man’s partner, who spoke on her own behalf and on behalf of her son Oliver. A further victim impact statement prepared personally by Oliver was also read by Ms Clutterbuck. All three statements spoke poignantly of the loss and heartbreak of those concerned at Barry Gargan’s death.
26. The sentencing court also heard evidence that a fatal injury claim had been brought against the respondent on behalf of the relatives and dependents of Mr. Gargan, and that this had been settled and the settlement amount paid promptly by the respondent in circumstances where, by reason of a substantial insurance policy excess, the respondent was effectively self insured.
27. A number of other employees who witnessed the accident suffered nervous shock, and sought compensation from the company on that account. These claims were also settled and paid promptly in similar circumstances.
The Judge’s Remarks at Sentencing.
28. After rehearsing at some length the circumstances of the accident and the effect on the victims of the death of Mr. Gargan, the sentencing judge continued:
“In respect of the investigation of the offence, there’s no doubt at all both the accused, Mr. Griffin and Kilsaran Concrete, fully co operated with the investigation and that this was extremely helpful. In addition to the pleas, which I will deal with specific mitigation in bringing the matter to a successful conclusion, this would certainly have been an extraordinarily long trial and it would not have been uncomplicated though it was explained extremely well by Mr. Madigan and of course understandably so because there’s no restrictions, very correctly, by both counsel for the from Mr. Griffin’s counsel, Mr. Kenneally, and likewise Mr. Hartnett, there was no impediment or obstructions put in respect of any evidence. It was opened out as wide and as fairly as possible, which I believe is very helpful to the families, the Gargan family and to Ms Clutterbuck, but I’m satisfied that the plea of guilty was the early plea by very early plea by Kilsaran Concrete and also the plea by Mr. Griffin was of substantial benefit in this case. It has saved the Gargan family, Ms Clutterbuck and indeed her son Oliver great trauma and distress if they were in a court for it could be weeks listening to the evidence, coming every day. Where I’m not in any way diminishing the trauma and stress but this would have been additional trauma and stress every day in court and in respect of the evidence that would have to be told and proven in respect of the case.”
29. The sentencing judge then went on to deal specifically with some aspects of the case against Mr. Griffin, before continuing as follows:
“Then, in respect of Kilsaran Concrete as to count number 8, I must have regard to the maximum custodial prison sentence the maximum custodial penalties are a two year custodial prison sentence or the maximum fine of €3 million. Then, I must decide where does this come in respect of the maximum sentence. I’m satisfied it would be in the middle range and one must also be realistic in respect of fines in that category, which I propose to be. Then, I must have regard to the mitigating the personal circumstances. The company employs currently employs 400 people. It’s involved it’s a private company. It’s involved in quarrying, the manufacture of various concrete products, it’s heavy vehicles and it is a substantial business. In mitigation, there was a plea of guilty, fully co operated with the investigation. Again, the pleas of guilty were of substantial benefit to the Gargan family and to the prosecution but more importantly and in particular to the Gargan family and to Ms Shaun Clutterbuck, Barry Gargan’s partner and her son Oliver. It has saved the family great trauma and distress. Had the case proceeded it would have been a lengthy, prolonged case and having to sit in court every day listening to the evidence unfold or being given in addition to the tremendous stress and trauma that they have suffered, it would have been compounded if the case had proceeded to trial and if they had to listen to the evidence every day. They have been saved great stress and trauma in the circumstances. I’m satisfied that there’s a genuine expression of remorse by the company. There was an effective policy of insurance at the time, though there was a previous conviction back in 2008, other than this conviction they have not come they have not been prosecuted and there has not been other convictions. Otherwise their work record was a good work record except for the two occasions, 2006 and of course on this on the occasion in respect of the death of Barry Gargan on the 6th of September 2011. The aggravating factors in the case is that this is a serious offence. These were the employers of Barry Gargan. They had a very, very substantial responsibility to Barry Gargan in respect of his health and safety when working at the particular location at the particular workplace. The failure of Kilsaran Concrete in respect of the safety of Barry Gargan when working in the manufacturing area that was the wet cast production or casting line where he was working inside in the guarded area he was working Barry Gargan was working at the vibration area inside the safety guard area putting back wooden moulds when the lift arm which was sensor controlled, it was an automatic control, made contact with Barry Gargan causing serious injuries being fatal injuries resulting in his death. Barry Gargan should not have been allowed or permitted to work inside this guarded area in the area of the wet cast production area which was operational. Also, where the lift arm was operational and automatic and sensor controlled, it exposed him to high risk of injury and in this instance he was exposed to such a risk that resulted in his death. The effect of the death on Barry Gargan on his family, which was outlined by Brian Gargan, and then by his partner, Shauna Clutterbuck and his son Oliver, and what I would simply adopt it’s the same as I have said in respect of the effect and the loss which I referred to in Carl Griffin’s Mr. Carl Griffin’s case. It is just an extraordinary loss which the Gargan family have had to carry, will have to carry, that his partner Ms Shauna Clutterbuck has carried, will carry and this will be carried into the future, indeed most likely for a very and of course I’m not forgetting his son Oliver who must now grow up without a father, a person to guide him, to just have the benefit of having a father or a Dad. This is an enormous, gigantic loss which really cannot be described in words. It is very difficult to describe in words even how careful and how measured or indeed how this tragic and untimely death of Barry Gargan has cost to his own family, the Gargan family, and of course to his partner Shaun and to his young son Oliver. There are serious aggravating factors in the case.
In respect first then I’m going to deal with Kilsaran Concrete. I must have regard to the seriousness of the offence and to the serious aggravating factors and balance them against the mitigating and the personal circumstances and I will have regard to the mitigating and the personal circumstances. Also, in respect of any penalty that I would impose which will be a financial penalty, I am required to have regard to the financial situation. So, in other words it should be proportionate. Indeed, I also believe I’m satisfied I should be I should and I will take into account in respect of the settlement which I have seen the figures and I would not I think perspicacity to all the parties concerned I will not mention them but I have noted them and that’s a matter that I should take into account having regard to the fact that at least 98% of the amount, to their credit, it’s a substantial mitigating factor, I would have regard to that in respect of the fine that I will impose. In respect of count number 8, then I’m imposing a fine of €125,000.”
The Applicant’s Submissions
30. In seeking a review of the fine, the applicant relies on the English case of R v. Howe and Son (Engineers) Ltd. [1999] 2 All ER 249, wherein Scott Baker J. identified a number of principles applicable to prosecutions in health and safety matters. They are as follows:
“In assessing the gravity of the breach it is often helpful to look at how far short of the appropriate standard the defendant fell in failing to meet the reasonably practicable test.
Next, it is often a matter of chance whether death or serious injury results from even a serious breach. Generally where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalty should reflect public disquiet at the unnecessary loss of life.
Financial profit can often be made at the expense of proper action to protect employees and the public. Cost cutting is a crucial tool in achieving a competitive edge. A deliberate breach of the health and safety legislation with a view to profit seriously aggravates the offence.
Other matters that may be relevant to sentence are the degree of risk and extent of the danger created by the offence; the extent of the breach or breaches, for example whether it was an isolated incident or continued over a period and, importantly, the defendant’s resources and the effect of the fine on its business.
Particular aggravating features will include (1) a failure to heed warnings and (2) where the defendant has deliberately profited financially from a failure to take necessary health and safety steps or specifically run a risk to save money.
Particular mitigating features will include (1) prompt admission of responsibility and a timely plea of guilty, (2) steps to remedy deficiencies after they are drawn to the defendants’ attention and (3) a good safety record.
Any fine should reflect not only the gravity of the offence but also the means of the offender…
The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.”
31. These principles have previously been approved and applied in a number of cases in this jurisdiction. See The People (Director of Public Prosecutions) v. Rosebery Construction Ltd [2003] 4 I.R. 338 and The People (Director of Public Prosecutions) v. Oran Pre-Cast Concrete Ltd [2003] JILL-CCA 121601 (Court of Criminal Appeal, ex tempore, 16th December 2003).
32. Counsel for the applicant submits that insufficient account was taken of a number of aggravating features in the case. He points to the inherent and obvious danger presented by the system of work and the particular work practice adopted in this case, and submits that there is a clear distinction between a system which presents inherent and obvious danger and an accident occurring due to an isolated instance of human error.
33. In R v. Balfour Beatty Rail Infrastructure Services Ltd. [2006] EWCA Crim 1586 Lord Phillips CJ held that where a breach of health and safety laws occurs due to “negligence or inadvertence on the part of an individual, which reflects no fault on the part of the management or the system that they have put in place or the training they have provided … a deterrent sentence on the company is neither appropriate nor possible.”
34. The applicant submits that a number of features of the present case are indicative of an inherently dangerous system of work, involving the deliberate and conscious taking of an unjustified risk as opposed to an omission through negligence or inadvertence, namely: operatives being placed inside a safety cage; operatives being required to work in close proximity to dangerous moving machinery; operatives being required to work on an unsuitable surface and at an unsuitable platform; and reliance being placed on another operative to disable part of the machine at the start of the shift to remove the risk. Evidence was given at the sentencing hearing by a Mr. Mark Madigan, an Inspector from the HSA, who told the court that the accident was “wholly foreseeable”. When it was put to him that the inside of the safety cage was “a fundamentally unsafe place to have operators” he agreed. Counsel for the applicant submits that the evidence establishes that the breaches in this case were entirely deliberate and conscious. It was not a case of unsafe practices merely being condoned. Participation in these unsafe practices was actively encouraged and, in circumstances where Mr. Bagnall’s expressed concerns were discounted and overruled, was in fact required of employees by management of the respondent company.
35. A further aggravating feature of the case, the Director submits, is the fact that the practice developed over a period of approximately 12 months. It was therefore not a “once off”, or a response to an unexpected occurrence. Accordingly the accident resulting in the death of Mr. Gargan was the culmination of continuous and deliberate breaches of safety requirements over a prolonged period. It is disconcerting to say the least of it that the dangerous practices being engaged in were seemingly not identified and countermanded by the company’s safety officer throughout this time.
36. Further, the applicant submits that the dangerous practices engaged in were motivated by commercial expediency and in pursuit of greater efficiency with a view to greater profit. The evidence clearly showed that the practice was adopted to speed up production and the applicant submits that a breach resulting from an intentional decision to engage in dangerous practices for commercial reasons is a significant aggravating feature relevant in assessing the appropriate level of the fine.
37. In The People (Director of Public Prosecutions) v. South East Recycling Limited [2011] 3 I.R. 35, a case involving a breach of a waste disposal licence, O’Donnell J identified deliberate breach of the law for profit motives as being a significant aggravating feature. He said:
“… the court considers that it is a valid and appropriate and perhaps even essential approach to sentencing in a matter such as this that even in the absence of direct environmental damage, if activities are engaged in which are economically beneficial and if it appears that it is done deliberately and in a sense as part of an economic calculation, then it may be necessary to fix the fine at a level that does not simply ensure that profit is not made or benefit not obtained, but provides a significant disincentive to a breach of the law.”
38. The applicant further contends that insufficient attention was paid to the aggravating features that concerns as to safety expressly raised by an experienced employee were disregarded, and the fact that no heed was paid to, or lesson learned from, the “near miss” experienced and reported by another employee.
39. The applicant also contends that too much credit was given for alleged mitigation in this case, and that a number of factors were taken into account as mitigation which were not in fact mitigating.
40. Counsel for the applicant accepts that the respondent was entitled to credit for the early plea of guilty and its cooperation with the investigation. However, the applicant contends that the sentencing judge erred in taking into account the compensation paid in the fatal injury claim and the personal injuries actions. The respondent paid at least 98% of the compensation, with the insurer covering the remainder and this fact was referred to by the sentencing Judge. However, the applicant makes the point that the substantial insurance policy excess would have had the effect of reducing the premium to be paid by the respondent, and thus says it must be assumed that the respondent has derived a substantial benefit from carrying a large excess and it ought not to have been considered a mitigating factor.
41. The significance for the sentencing process of civil liability to pay compensation arising out of conduct that was also criminal was addressed in The People (Director of Public Prosecutions) v. Anthony Lyons [2014] IECCA 27. In that case, the payment of compensation for civil liability arising from a sexual assault was held not to be a mitigating factor in circumstances where it had not imposed a special burden or significant financial strain on the respondent. The Court of Criminal Appeal stated (at paras 63 to 66):
“63. It is almost axiomatic that a person who, through criminal wrongdoing, inflicts injury or loss on another person, that he or she is separately and distinctly liable to pay full compensation in civil proceedings. It represents a civil liability independent of the criminal liability of the convicted person. While there are no statistics or objective information as to the degree to which civil claims are brought following or arising from criminal convictions, it would appear to be a relatively uncommon occurrence, largely because, it would seem, the range of persons which come before the criminal courts are so often persons of little or no means, thus rendering the bringing of civil proceedings futile. It does, however, occur. In this case the resolution of the civil proceedings has occurred by agreement before the full scope of the criminal proceedings had been completed. More often, when it does occur, it will occur after conviction and sentence. The fact that a person is exposed, on conviction, to a potential civil claim, is not a factor which is taken into account in sentencing. It is a separate civil liability. It is also self-evident that where a person who has been convicted has to pay compensation as a result of a successful civil claim subsequent to conviction, the compensation award can have no bearing on the original sentence imposed. In principle, therefore, the Court does not see any reason why the payment of compensation and settlement of a civil action prior to the completion of the criminal proceedings should automatically be a factor, even a marginal factor, in mitigation.
64. Counsel for the DPP argued that compensation, and in particular compensation pursuant to s.6 of the Act of 1993, could be a mitigating factor, although marginal, in certain circumstances. (Of course, a compensation order under the Act is, by virtue of s.2, relate to the amount which a victim could recover by way of civil action. It may not exceed such an amount).
65. In this context, counsel for the DPP relied on the case of The People (DPP) v. McCabe [2005] IECCA 90. That was a case in which the convicted person had to sell his entire herd of cattle in order to pay compensation awarded in that case at the time of sentencing. It was submitted by the DPP that compensation in the particular circumstances of the McCabe case represented a special hardship on the accused and was something which could be taken into account as a mitigating factor as part of the totality of hardship or consequence of a conviction on the accused in that case.
66. The Court considers that the application of the criteria of special hardship, according to the circumstances of an accused, irrespective of the amount of compensation, avoids any special treatment for an accused who happens to be particularly well off and can therefore be made pay a high level of compensation by reference to his means as required by s.6 of the Act of 1993.”
42. The Court of Criminal Appeal added, with reference to s. 6 of the Criminal Justice Act, 1993 (at para 68) that:
“…where serious indictable offences are concerned it would seem that, in principle, if a compensation order is being made it should be made only in addition to the appropriate sentence, including imprisonment, that meets the gravity of the case. Of course, the making of a compensation order may arise also in a case where a court, for reasons wholly independent of a compensation order, considers that a non-custodial sentence, such as a suspended sentence, should apply. As stated, it may nonetheless be a marginal factor in mitigation, where the payment creates a special burden or hardship on the accused.”
43. Counsel for the applicant draws our attention to the fact that at the time of sentencing, the respondent in the present case had a very high turnover and a balance sheet exhibiting very sizeable net current assets. There was no evidence that the payment of compensation had imposed special hardship or particular financial strain on the respondent company.
44. It was also argued on behalf of the applicant that the sentencing judge had erred in law in imposing a fine which either had no regard to, or alternatively paid insufficient regard to, the financial position of the respondent company and its ability to pay. The essence of the argument under this heading was that, by any yardstick, this was a case that required emphasis on the penal objective of deterrence, both general and specific. For a penalty to have a specific deterrent effect it must be meaningful, and it must be pitched at a level capable of having deterrent effect on the actual offender with respect to that offender’s future conduct. It is contended that this can only be done, in the case of a proposed fine, by taking into account the resources available to the offender in determining the level of the appropriate fine. See the judgment of Murray C.J., on behalf of the Court of Criminal Appeal, to that effect in The People (Director of Public Prosecutions) v. O’Flynn Construction Co Ltd [2007] 4 I.R. 500, at para 22. It was submitted that in the present case this was not done, or sufficiently done.
45. The applicant accepts that any fine must nevertheless be proportionate and acknowledges the law in that regard concerning the sentencing of corporate offenders as set forth by this Court in The People (Director of Public Prosecutions) v. Cavan County Council and Oxigen Environmental Limited [2015] IECA 130.
46. There is a further specific complaint that the sentencing judge failed to attach any or any sufficient weight to the need to provide general deterrence in determining upon the level of the fine in this case. In support of this contention we were referred to R v Palmer & Harvey McLane Ltd [2013] 1 Cr App Rep (S) 34 where Stanley Burnton L.J stated:
“However, the purposes of a fine go beyond that purpose. In our judgment, they include the marking by the court of society’s condemnation of the company’s breaches. The size of the fine marks the importance of the breach, both in terms of the gravity of the offending and the importance of the safety of employees and members of the public who may be affected by the operations of any business. There is punishment as a proper purpose and deterrence, not only of the appellant itself, the company whose breach of the statutory duty is in question, but of others who have in their hands care for their employees or members of the public or both.”
47. Our attention was drawn to a number of comparators, although it has to be said immediately that none of these are very close comparators. Moreover, while some represent reported or unreported judgments of the superior appellate courts, a number of them represent case notes of decisions of the District Court or Circuit Court that are recorded either on the website of the HSA (See www.hsa.ie /eng /Topics /enforcement/Prosecutions/ ), or in that organisation’s annual reports. While such case notes are useful up to a point, they do not record a full account of the evidence or the ipsissima verba of the sentencing judge, and therefore must be treated with some caution. The comparators drawn to our attention include The People (Director of Public Prosecutions) v. Roadteam Logistic Solutions [2016] IECA 38; The People (Director of Public Prosecutions) v. The Health Service Executive (HSE) (HSA Casenote, Dublin Circuit Criminal Court, 25th October 2013); The People (Director of Public Prosecutions) v. Smurfit Newspress Ltd (HSA Casenote, Trim Circuit Criminal Court, 29th October 2004) and The People (Director of Public Prosecutions) v. Oran Pre-Cast Concrete Ltd [2003] JILL-CCA 121601 (Court of Criminal Appeal, ex tempore, 16th December 2003).
48. It is suggested that the closest comparator is the Roadteam case. It is not contended that the facts were in any way similar. That case had involved inadequate securing of cargo by a haulier, leading to the death of two persons and injuries being caused to four others. However, it is put forward as the closest comparator on the basis that it exhibited not mere negligence or oversight but deliberate breaches of health and safety requirements for commercial gain. This Court regarded the particular breaches in that case as “omissions …of a high order” and agreed with the comment of the sentencing judge in the court below that they amounted to “a gross dereliction of the defendant’s statutory duty”. This Court also remarked that “it was all the more serious because they related to a core activity of the appellant’s business”. A fine of €1,000,000 was upheld by this court. The applicant contends that the breaches in the present case were just as egregious.
49. The Smurfit case, which is also advanced as a comparator, is referred to in some detail in the Roadteam case. A fine of €1,000,000 was imposed in respect of two accidents in which one worker lost a leg and the second suffered a injury to his hand. The case note records that in imposing the fine, the sentencing judge noted what he described as a cavalier attitude to health and safety in the pursuit of profit.
50. In the HSE case, which is also put forward as a comparator, the defendant pleaded guilty to two charges, one involving a failure to have a written risk assessment and the other involving a failure to provide information, instruction and training to their employees in relation to the use by their employees of rear-hinged side doors on ambulances. The case had involved a fatality as a result of a person falling out of an ambulance. Cumulative fines of €500,000 were imposed. However it bears commenting upon that the case note is sparse in the details that it records and the usefulness of this case as a comparator is therefore very limited.
51. The case of Oran Pre-Cast Concrete Ltd is drawn to our attention in this context, not for the purpose of suggesting its similarity to the present case, but rather for the purpose of distinguishing it. That case had involved a prosecution arising out of an accident in which an employee fell to his death from a roof. A fine of €100,000 was imposed. However, the point is made that there was no deliberate disregard of health and safety requirements in that case, unlike in the present case. Rather, the defendant’s culpability arose from the failure to prevent the occurrence of an accident. The circumstances were that two employees were tasked to fit a gutter while positioned on a mobile scaffolding tower. They unexpectedly found that they needed to step onto a roof due to the fault of a third party in failing to do adequate preparatory work. They did so in circumstances where they were insufficiently harnessed and one man fell thirty feet to his death. It was specifically noted in the judgment in Oran Pre-Cast Concrete Ltd that there was no element of risks being run specifically to save money in that case. The applicant emphasises that, on the contrary, that was indeed the situation case in the present case.
The Respondent’s Submissions
52. The respondent has sought to emphasise the jurisprudence on the exercise by this Court of its jurisdiction to review a sentence on the grounds that it is unduly lenient pursuant to s.2 of the Criminal Justice Act 2003. We were referred to the line of cases, with which we are already very familiar, comprising The People (Director of Public Prosecutions) v. Byrne [1995] 1 ILRM 279; The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 356 and The People (Director of Public Prosecutions) v. Stronge [2011] IECCA 79.
53. The Byrne case indicated, inter alia, that “nothing but a substantial departure from what would be regarded as the appropriate sentence” could justify intervention by a reviewing court, while the McCormack case stated that “undue leniency connotes a clear divergence … from the norm”. The Stronge case had spoken of “a substantial or gross departure from what would be the appropriate sentence in the circumstances.” The Byrne case had also stressed the need for great weight to be afforded to the sentencing judge’s reasons for imposing the sentence.
54. Some significance is attached by counsel for the respondent to the suggestion in Stronge that “it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified”. We would comment in that regard that while we do not disagree with that as a statement of principle, it may be trite to observe, as indeed Barron J did in McCormack, that any sentence that involves a clear divergence from the norm “would, save perhaps in exceptional circumstances, have been caused by an obvious error of principle.” Indeed, we consider that the very fact that a sentence is regarded as being unduly lenient means a fortiori that there was an error of principle on the part of the sentencing judge; although frequently other discrete errors of principle leading to, or contributing to, the imposition of the unduly lenient sentence will also have been identified.
55. In addition the respondent has sought to remind us of some of our own more recent jurisprudence, namely that in The People (Director of Public Prosecutions) v. C.McC [2016] IECA 351 and The People (Director of Public Prosecutions) v. Prenderville [2015] IECA 33. In both of the latter cases this Court indicated that a sentencing judge enjoys “a wide discretion” as to the sentence to be imposed in any particular matter.
56. The respondent contends that the sentencing judge acted within the scope of his acknowledged wide discretion in characterising the offence as falling within the middle range of offending.
57. The respondent further contends that the sentencing judge was fully alive to the various aggravating features of the case highlighted on behalf of the applicant, and took them into account. It is suggested that the sentence imposed was therefore balanced, fair and just.
58. With respect to the mitigating factors in the case, the respondent contends that the sentencing judge engaged in a balanced consideration of all the relevant factors.
59. Dealing specifically with the contention that compensation paid was wrongly taken into account as a mitigating factor, it was submitted that payment of a civil award is a matter of relevance in terms of ascertaining the ability of a company to pay a fine imposed in a criminal prosecution and was correctly taken into account the sentencing judge. Various passages from The People (Director of Public Prosecutions) v. Anthony Lyons [2014] IECCA 27; The People (Director of Public Prosecutions) v. Rosebery Construction Ltd [2003] 4 IR 338 and The People (Director of Public Prosecutions) v. Cavan County Council and Oxigen Environmental Limited [2015] IECA 130, are advanced in the respondent’s written submissions as providing some support for this submission.
60. It has been further submitted on behalf of the respondent that the sentencing judge was also entitled to take into account the financial difficulties that had been faced by the respondent (and indeed other building material firms) as a result of the financial collapse in 2008 and the resultant effect on the construction industry. The court was provided with details of the respondent’s financial situation which showed that it operated at a loss for many years and was obliged to dispose of certain assets to secure the future of the company. It was submitted that this situation was also a matter that the sentencing judge was entitled to take into account in measuring the appropriate fine.
61. We were referred to the following passage from O’Malley, Sentencing Law and Practice (3rd Edition, 2016) at para 2.12:
“A penalty motivated by a policy of general deterrence aims to demonstrate to potential offenders and to society at large the painful consequences of engaging in the conduct constituting the relevant offence.”
It is suggested that the sentencing remarks of the judge at first instance fully reflect this principle, particularly in the way in which he highlighted the aggravating features and the harm done. It was submitted that in constructing the sentence the sentencing judge was guided by the principles of proportionality and deterrence, and in doing so took account of the gravity of the offences as well as the respondent’s circumstances.
62. In response to the comparators put forward by the applicant counsel for the respondent advocates that caution should be exercised in relation to these in circumstances where the facts are not comparable to those in the present case. It is emphasised that the appropriate sentence in a given case is contingent on the facts of the case.
63. The respondent says in response to the applicant’s emphasis on the remarks of this Court in The People (Director of Public Prosecutions) v. Roadteam Logistic Solutions [2016] IECA 38 that while a breach of a core activity is a serious aggravating factor, it is but one of a number of factors to which the sentencing court should have regard. It does not in and of itself dictate the level of fine to be imposed.
64. A number of other comparators are advanced in illustration of this, i.e The People (Director of Public Prosecutions) v. Irish Ferries (no citation provided), a case in which it is said there was a prosecution relating to a core activity of the company. The defendant company pleaded guilty to failing insofar as reasonably practicable to ensure that persons not in its employment were not exposed to risk to their safety, health and welfare in circumstances where a rubber tyre which fell from a 90 metre high crane and fatally injured a worker. The sentencing judge is said to have imposed a fine of €125,000.
65. Similarly, in The People (Director of Public Prosecutions) v. Kelly’s of Fantane (Concrete) Ltd (Nenagh Circuit Criminal Court, 11th July 2004) the death of the deceased resulted from the performance of a core activity of the defendant company. The defendant company pleaded guilty to failing to manage and conduct work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of its employees. The defendant company was involved in construction work and was laying road-surfacing materials and using six 40-tonne dump trucks to transport the materials. While one of the dump trucks was being reversed it collided with and fatally injured an employee of the defendant company. The sentencing judge imposed a fine of €20,000 on the defendant company.
66. The respondent contends that there were aggravating factors present in Roadteam Logistic Solutions not present in the instant case rendering it of limited comparative value. In Roadteam Logistic Solutions the breach of statutory duty resulted in the deaths of two individuals and personal injuries to four additional persons. The respondent does not seek to assert that the consequences of the breach in the instant case were anything other than extremely serious. However, the lesser number of fatalities and injured parties ought to be noted.
67. In relation to The People (Director of Public Prosecutions) v. The Health Service Executive (HSE) (HSA Casenote, Dublin Circuit Criminal Court, 25th October 2013) we are asked to note that the fines amount of €500,000 was an aggregate figure and that the break down between the two counts to which the defendant pleaded guilty was a fine of €350,000 in respect of the failure to conduct a risk assessment and €150,00o in respect of the failure to provide information, instruction and training to their employees in relation to the use by their employees of rear-hinged side doors on ambulances.
68. In relation to The People (Director of Public Prosecutions) v. Smurfit Newspress Ltd (HSA Casenote, Trim Circuit Criminal Court, 29th October 2004) the respondent asks us to note that the case involved two separate incidents, and that the defendant company had pleaded to a total of six charges.
69. In conclusion the respondent has submitted that the sentence imposed in this case was not unduly lenient, but rather was balanced fair and just.
The Court’s Analysis and Decision
70. Having regard to the criticisms of the sentence imposed by the court below voiced by the applicant we will consider the case in the first instance under four main headings before then indicating our conclusions. Those headings are: (i) the assessment of the gravity of the case; (ii) the allowance made for mitigation; (iii) proportionality in the overall sentencing process; and (iv) sentencing policy issues.
The assessment of the gravity of the case
71. The sentencing judge was required in the first instance to assess the gravity of offence. It is well established that this is to be done with reference to the available range of penalties, and by seeking to locate on that range where the case falls to be located having regard to the culpability of the offender and the harm done. In a case of this sort, involving as it does a corporate offender and serious circumstances, the only viable penalty is likely to be a monetary fine. In the instant case the range of available fines runs from zero up to €3,000,000.
72. In this case the respondent’s culpability was very high indeed. The offence involving an egregious failure to maintain or enforce safety standards, resulting in a fatality. There were numerous highly aggravating features of the offence. Harm was caused not just to the late Mr. Gargan, who lost his life, but also to the deceased man’s parents and siblings, to his partner Ms Clutterbuck and her son Oliver, and also to Mr. Gargan’s co-workers who witnessed the accident and suffered nervous shock as a result.
73. There was a deliberate breach of the law in order to maximise profits. There was a conscious and deliberate discounting of safety concerns raised by an experienced employee. A previous near-miss was disregarded and ignored. The practices which culminated in the accident were adopted incrementally over a period of in excess of a year and created a very high level of risk and significant danger. This was not a case of passive neglect or omission giving rise to a one off incident, or where a momentary lapse of attention by an operative gives rise to tragic consequences. On the contrary, there as a willful neglect of the duty to ensure, as far as practicable, the safety of the respondent’s employees and a calculated decision to take unjustified risks. The impugned practices were not merely condoned, they were actively encouraged and, indeed, participation in them was required by a member of senior management in the respondent company. While there is no suggestion that there was actual knowledge of the practices in question at board level, it is a matter of concern that in an entity the size of the respondent these practices do not appear to have been picked up on any safety audit, or brought to the attention of the board by the company’s safety officer. That these things did not occur raises legitimate questions concerning the safety culture in this division of the respondent’s business at the material time. While the manufacture of concrete kerbing is only one facet of the respondent’s business, the manufacture of pre-cast concrete products is undoubtedly a core activity of their business.
74. Ignoring for the moment the respondent’s financial resources and ability to pay, and assessing gravity with reference to the full spectrum of potential fines, we consider that this case would merit a headline sentence towards the top end of mid range or towards the bottom end of the high range on that spectrum, where the available scale is divided three ways to give a low range (involving fines from zero to €1,000,000), a mid range (involving fines from €1,000,001 to €2,000,000) and an high range (involving fines from €2,000,001 to €3,000,000). In our view therefore an appropriate headline sentence would have been a fine of between €1,750,000 and €2,250,000.
75. The sentencing judge did not nominate any particular headline sentence. However, he did express the view that the case “would be in the middle range”, but he immediately qualified this statement by adding that “one must also be realistic in respect of fines in that category.” We will consider that qualification in more detail under the heading of Proportionality, and also consider in that context the relevance, if any, in this case of the respondent’s financial resources and ability to pay. It is sufficient to state at this stage that we agree with the applicant that the sentencing judge failed to adequately reflect the gravity of the offending conduct in his sentence, and that was an error of principle.
The allowance made for mitigation
76. On the mitigation side of the equation, the applicant suggests that it was inappropriate for the trial judge to have treated payments made by way of compensation as a mitigating factor in the circumstances of this case. The current law on this is well covered in the applicant’s submissions summarised earlier in this judgment. In general such payments are not to be treated as mitigation, though some account may be taken of them if there is evidence that they will give rise to particular hardship for the offender.
77. We would add the following remarks. The situation with respect to compensation is not wholly black or white. Notwithstanding that a legal liability to pay compensation on foot of a civil claim may arise where somebody has been injured due to a clear breach of statutory duty in the health and safety sphere by a defendant, an early facing up to such a claim or claims, and the payment of financial restitution, can be evidence of genuine remorse.
78. In addition, the payment of compensation by a so-called man of straw, e.g., a person who is unemployed or in low level employment, and who has no assets, and who has borrowed from friends or relatives, or perhaps his local credit union, in order to do so, may be treated as mitigation for several reasons. Firstly, because it can again be evidence of remorse and of the taking of responsibility, secondly, it may provide some financial restitution for the injured party in a situation where, even if he or she secured a judgment, there would otherwise be little likelihood of being able to execute it, and thirdly because the taking on of such debts may represent a hardship for the offender.
79. In this case, however, there was little basis for the taking into account of the payment of compensation beyond regarding the manner in which the claims were speedily addressed as an earnest of remorse. However, remorse was separately taken into account by the sentencing judge. The actual payments did not impose significant hardship on the respondent having regard to its resources, and the point is well made by the applicant that the existence of a policy excess was irrelevant. The decision to insure subject to a substantial excess was a commercial decision taken by the respondent, for which it would have received benefits, and in particular would have been liable to pay a lower premium.
80. It is a problem in this case that it is unclear from the sentencing judge’s judgment how much discount he gave for mitigation overall, much less the extent to which discount was allowed for the compensation factor. However, although it cannot be quantified, it is clear from the judgment that some allowance was made for the payment of compensation and we agree with the applicant that that was an error of principle.
81. We are satisfied that it was proper to have made due allowance for the plea of guilty, the offender’s co-operation, remorse, remedial steps taken, and the respondent’s generally good safety record apart from the circumstances giving rise to this case. The sentencing judge does not appear to have regarded the previous conviction in this case, which was some time ago and related to a completely different aspect of the respondent’s business, as reducing the mitigation to which the respondent was entitled on account of a generally good safety record. We consider that he was correct in that regard.
82. We do not know the exact amount of discount actually afforded in this case, and would merely remark that anything above a 50% discount could not have been legitimately contemplated in the circumstances of this case. Indeed a discount at that level, if applied, would be regarded as generous.
Proportionality
83. As we stated in The People (Director of Public Prosecutions) v. Cavan County Council and Oxigen Environmental Limited [2015] IECA 130, in certain circumstances the penalty range provided by a statute may be “a less than reliable tool for accurately gauging the seriousness of any particular offence arising under [the Act in question], and certainly not one to be relied upon in isolation.” This remark is apposite to a situation where a regulatory statute creates a myriad of offences for which it provides a single penalty range. That was true in the case of the Waste Management Act 1996 which featured in the Cavan County Council and Oxigen Environmental Ltd case, and it is also true in this case.
84. In this case the respondent has pleaded guilty to an offence under the Safety, Health and Welfare at Work Act 2005 (the Act of 2005). The greater part of the Act of 2005 is concerned with specifying the duties imposed on employers, employees and others to ensure safety in the workplace, and the procedures to be put in place for that purpose. The Act makes the failure to comply with almost any obligation created in that regard a criminal offence. There are therefore a myriad of potential offences. Despite this there is only one penalty section, s.78, and identical penalties are provided for all potential offences whether they involve venial or mortal sins. The potential penalty that might be imposed in the case of a corporate offender involves a fine of up to a maximum of €5,000 in the case of an offence prosecuted summarily, and in the case of an offence prosecuted on indictment a fine of up to a maximum of €3,000,000. However, as many of the offences created by the Act of 2005 may only involve non compliance with a regulation and not a morally culpable failure to maintain or enforce safety standards, were such a case to be prosecuted on indictment the maximum fine could never realistically be contemplated; nor indeed could any fine other than one towards the lower end of the notional spectrum. It would simply not be realistic to assess seriousness in such cases with reference to the vast range available, and a court is understandably likely to approach the task with reference to what it considers to be the realistic range.
85. We would suggest that experience and precedent indicates that cases involving moderate culpability and resulting in moderate harm would rarely attract a fine in excess of a six figure sum today, with the result that the first one third of the available range may represent the realistic spectrum of fines that is in fact applied in such cases. The fact that the fines applied are at the low end (in the first one third) of the actual available range is not reflective of their actual gravity. A low fine relative to the range that the Oireachtas has set will not necessarily be indicative of the culpability involved and the harm done in such cases.
86. Even in the case of offences such as the present involving a highly culpable failure to maintain or enforce safety standards, and resulting in serious harm, the requirement to impose a proportionate sentence may in some cases militate against benchmarking gravity with reference to the full range of potential fines, and again in that situation a court would be justified in approaching the task with reference to a lesser more realistic range taking into account the offender’s resources and ability to pay.
87. However, in an appropriate case gravity should be assessed with reference to the full available range.
88. In this case while the sentencing judge noted that the available range involved a fine of up to a maximum of €3,000,000, and expressed the view that the case fell to be located in the middle range, he also stated that “one must be realistic in respect of fines in that category” which suggests that he intending adjudging the case with reference to what he considered to be the realistic range rather than with respect to the full range. We have already indicated that in certain cases that may be an appropriate approach. It begs the question: was it the appropriate approach in the circumstances of this case?
89. A major problem with the sentencing judge’s approach is that he gives no indication in his judgment as to what he considers the realistic range to be, or as to the criteria by means of which he has determined upon that range. The most potentially relevant considerations in that regard would be the financial resources available to the respondent, and the respondent’s ability to pay, but the only reference the sentencing judge makes to such considerations is where he states: “Also, in respect of any penalty that I would impose which will be a financial penalty, I am required to have regard to the financial situation. So, in other words it should be proportionate.”
90. It is acknowledged that the sentencing court was provided with some financial information which it was entitled to have regard to. Precise figures will not be given in this judgment for reasons of commercial sensitivity. However, the information before the sentencing judge indicated that following the economic downturn that began in 2008 the respondent had incurred serial losses in subsequent years and that this had continued until 2014. Further, the court was told that it had had to dispose of some assets to fund continuing operations in the teeth of the losses that it had accumulated. However, the evidence was that as of the date of sentencing the company was experiencing a recovery, and a break-even trading situation had been achieved in 2015 with the forecast of a return to profitability in 2016. The company’s current turnover is very substantial (in the nine digit range) and despite the disposal of some assets it retains a very strong balance sheet comprising assets valued at many millions of euro.
91. We do not consider that the circumstances of the present case justified the sentencing judge in disregarding the full available range of fines in favor of an unspecified, but manifestly lesser, range of fines that he considered to be realistic. In doing so he fell into error. While this approach might be justified in some cases in the interests of proportionality, it was not called for in the circumstances of this case where the circumstances were truly egregious and this respondent has adequate resources and ability to meet any fine imposed. That is not to say that having to meet a very substantial fine would not be painful for the respondent company and its shareholders. It is very likely to be so, and indeed it is desirable that it should be so in the interests of meaningful deterrence, both general and specific. However there is simply no evidence that the imposition of a very substantial fine in this case would threaten the viability of the company or precipitate its dissolution.
Sentencing policy issues
92. In The People (Director of Public Prosecutions) v. Cavan County Council and Oxigen Environmental Limited we stated:
“In the case of a corporate offender, while there is no constitutional requirement of proportionality in terms of interference with personal rights and personal liberty, sentencing must nevertheless be fair to the corporate offender and be in accordance with the constitutional guarantee of due process. Accordingly, the process of sentencing a corporate offender must still take account of the gravity of the offence, including the culpability of the offender, and relevant circumstances of the entity concerned should be taken into account in mitigation. A sentencing court must still have regard to the sentencing objectives of retribution, deterrence (both specific and general), and rehabilitation but there will frequently be more emphasis on deterrence than on the other objectives”
93. In this case the applicant complains that the sentence imposed by the court below failed to adequately address the need for deterrence, both general and specific. We agree. The law breached in this case was designed to protect and promote public welfare and particularly the welfare of employees in their place of work. The respondent’s reckless disregard for safety in the pursuit of profit drove a coach and four through the policy of the legislature, and requires to be punished and future conduct of that sort requires to be deterred. The ultimate sentence was one of €125,000 and it was entirely inadequate in the circumstances of this case to communicate the appropriate messages. Even assuming a generous but appropriate discount of 50% for mitigation, that would have meant the sentencing judge’s starting point was €250,000 which was simply too low by far, both in terms of adequately punishing the offence, but also and more importantly in terms of deterring the respondent, and others, from engaging in similar breaches and disregarding safety requirements in the future.
Conclusions
94. We are satisfied that the sentence in this case was unduly lenient as being a clear departure from the norm, and one caused by the several errors of principle that we have identified. In the circumstances we will quash the sentence imposed in the court below and proceed to resentence the respondent.
Resentencing
95. In accordance with established practice in this Court we invited the parties to submit, on a contingent basis, any additional materials that they would wish to have taken into account in the event of the Court having to proceed to a resentencing. We were informed on behalf of the respondent that the trend towards improved trading conditions and a likely return to profitability in the short to medium term indicated in the earlier data provided to the sentencing court continues.
96. We consider that the gravity of this case, considered with reference to the range of punishments set by the Oireachtas, and having regard to the respondents very significant culpability and the substantial harm done, merited a headline sentence involving a fine of €2,000,000. We will allow a 50% discount for the mitigating factors in the case. The final sentence therefore will be a fine of €1,000,000.
Costs
97. We will hear submissions from counsel on both sides concerning the costs of the prosecution. However we draw to the parties attention s. 78(4) of the Act of 2005 which provides:
“Where a person is convicted of an offence under the relevant statutory provisions in proceedings brought by the Authority or a prescribed person under section 33 , the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Authority or the prescribed person under section 33 the costs and expenses measured by the court, incurred by the Authority or the prescribed person under section 33 in relation to the investigation, detection and prosecution of the offence including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees of or consultants and advisers engaged by the Authority or the prescribed person under section 33 , as the case may be.”