el pl claims handling course - employers' liability

EL/PL claims handlers course – An introduction to claims handling employers’ liability claims

Speaker

Steven Conway | 0207 337 1037 | steven.conway@brownejacobson.com

Programme

• handling defective work equipment claims• handling manual handling claims• handling personal protective equipment claims• handling tripping / slipping claims• handling health & safety prosecutions• investigations and evidence• the cases you need to know

Duties

• Common law duties

• Statutory duties

Common Law duties

• To take reasonable care for the safety of employees

4 main elements:

• Provision of safe plant/equipment• Provision of competent staff• Safe place of work • Safe system of work

Statutory duties – the 6 pack

Health & Safety at Work Act 1974

• Management of Health and Safety at Work Regulations 1999• Workplace (Health, Safety and Welfare) Regulations 1992• Manual Handling Operation Regulations 1992• Personal Protective Equipment at Work Regulations 1992• Provision & Use of Work Equipment Regulations 1998• Health & Safety Display Screen Equipments Regulations

1992

• s.69 Enterprise & Regulatory Reform Act 2013

''Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide”.

• No civil liability for breach of health & safety regulations after 1 October 2013

Effect of Enterprise & Regulatory Reform Act 2013?

• Removal of strict liability – claims more defendable• Claims will be brought in negligence• Reversal of burden of proof • Cost of investigations will increase• Increased use of expert evidence• Reliance on Regulations as evidence of negligence?• Reliance on HSE guidance and Codes of Practice?

Emanations of the State

• Provision of a public service – e.g. local authorities

• Direct effect of European Directives

Two-tier system

• Accidents occurring before 1 October 2013

• Primarily considered under health & safety regulations

• Accidents occurring on or after 1 October 2013

• Primarily considered in negligence• Unless you are an “emanation of the state”

Management of Health and Safety at Work Regulations 1999 Reg. 3Every 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) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.

Myth: Risk assessment is too complicated for me to do!

Risk assessments

• HSE: carrying out a risk assessment should be straightforward. It's about focusing on real risks and hazards that cause real harm and, more importantly, taking action to control them.

• '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” - per LJ Smith in Allison v London Underground Ltd [2008] EWCA Civ 71

Handling defective work equipment claims

• Common law

• Provision & Use of Work Equipment Regulations 1998

• Work Equipment Directive 89/655/EEC

Who do the regulations apply to? – Reg. 3(2) The requirements imposed by these Regulations on an

employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.

(3) (b) to a person who has control to any extent of—

(i) work equipment;(ii) a person at work who uses or supervises or manages the use of work equipment; or(iii) the way in which work equipment is used at work,and to the extent of his control.

“work equipment”

means “any machinery, appliance, apparatus, tool or

installation for use at work (whether exclusively ornot)”

Regulation 2(1)

“use” of work equipment

means “any activity involving work equipment andincludes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining,servicing and cleaning”

used by an employee “at work”• a person is at work the whole time when he or

she is in the course of employment

- Robb v Salamis (M & I) Ltd [2005] Rep LR 42

• still at work when leaving work at the end of the day using the lift in the common parts of the building

- Reid v PRP Architects [2006] EWCA Civ 1119

Suitability of work equipment – Reg 4Regulation 4 states

“ every employer shall ensure work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided”

Suitable – Regulation 4(4)

“in any respect which it is reasonably foreseeable will affect

the health and safety of any person”

Maintenance – Reg 5

• Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair

• Strict liability if injury caused by malfunctioning equipment, irrespective of the system of maintenance and repair

Common law claims - negligence

• Case law is very old – await new decisions

• Cases will turn on the manufacture, maintenance and inspection of work equipment

• Greater need for expert evidence

• Also liability under Employer’s Liability (Defective Equipment) Act 1969

• HSE guidance on “Using work equipment safely” (INDG229) etc

Handling manual handling claims

• Manual Handling Operation Regulations 1992

• Manual Handling of Heavy Loads Directive 90/269/EEC

Myth: this is a good example of manual handling!

Duties of employers – Reg 4(1)

Each employer shall—

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

“manual handling operations”

means “any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force”

Regulation 2(1)

“a risk of their being injured”

• Regulations are not limited to injuries arising from excessive loads but cover all injuries sustained whilst in the act of supporting of transporting a load

• “ a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability” Koonjul v Thameslink Healthcare (2003)

where you can’t avoid the manual handling operation…4(1)(b) where it is not reasonably practicable to avoid the

need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—(i) make a suitable and sufficient assessment of all such

manual handling operations to be undertaken by them,(ii) take appropriate steps to reduce the risk of injury to

the lowest level reasonably practicable, and(iii) provide those employees with information on the weight of each load, and the heaviest side of any load.

Common law claims - negligence• Claims will still consider the Regulations

• The need for a suitable and sufficient risk assessment will still be taken into account

• The Court will still account for steps taken to reduce the risk of injury from manual handling tasks

• HSE guidance - http://www.hse.gov.uk/pubns/indg143.pdf

Handling personal protective equipment claims

• Personal Protective Equipment at Work Regulations 1992

• Personal Protective Equipment Directive 89/656/EEC

Myth: New regulations would require trapeze artists to wear hard hats

What is PPE? Reg 2(1)

means “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and whichprotects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective”

Provision of personal protective equipment – Reg 4Every employer shall ensure that suitable personal

protective equipment is provided to his employees

who may be exposed to a risk to their health or

safety while at work except where and to the extent

that such risk has been adequately controlled by

other means which are equally or more effective.

What is “suitable” PPE? – Reg 4(3)• be appropriate for the risk(s) involved, the conditions at

the place where exposure to the risk may occur and, the period for which it is worn

• take account of ergonomic requirements and the health of the person(s) who may wear it

• fit the wearer correctly • so far as is practicable, be effective to prevent or

adequately control the risk(s) without increasing the overall risk

• comply with any enactment with respect to health or safety

Common law claims - negligence• Claims will still consider the effectiveness/suitability of

PPE provided

• The need for a suitable and sufficient risk assessment will still be taken into account

• Need for expert evidence – was the PPE effective/suitable?

• HSE guidance - http://www.hse.gov.uk/pubns/indg174.pdf

Handling tripping / slipping claims• Workplace (Health, Safety and Welfare)

Regulations 1992

• Workplace Directive 9/654/EEC

• Occupier’s Liability Act 1957

Myth: here's nothing you can do about slips and trips and they don't really hurt anyone anyway

Condition of floors and traffic routes 12 (1) Every floor in a workplace and the surface of every traffic

route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that—

(a)the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and

(b) every such floor shall have effective means of drainage where necessary.

Reg 12(1) cases

• “floor” – bus garage yard: King v RCO Support Services (2001)

• “workplace” – car park: Pettie v Southampton University Hospitals NHS

Trust (2003)– away day at country park: Reynolds v Strutt & Parker

(2011)

• “traffic route”– route from car park: Caerphilly County Borough Council v

Button (2010)

Reg 12(1) & (2) cases

• “construction”– weather strip: Palmer v Marks & Spencer (2001)

• “suitable”- gap between floor and Portacabin: Taylor v Wincanton

Group Limited (2009)

• “uneven” – protruding paving slab: Craner v Dorset County Council

(2008)

Reg 12(3)

12(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.

Reg 12(3) cases

• “obstructions”– feet of a blackboard: Anderson v Newham College (2002)– a library stool: Robinson v Midland Bank (2000)

• “article”- container to contain lunch boxes: Burgess v Plymouth City

Council (2005)

• “substance”– food debris: Harper v Staffordshire County Council (2003)

• “slip”– urine: Ellis v Bristol City Council [2007]

Common law claims - negligence• Claims relating to construction of floors and traffic

routes – look at maintenance and inspection regimes

• Claims in relation to articles and substances – look at maintenance and inspection regimes

• Need for expert evidence

• HSE guidance on “Preventing slips and trips at work” INDG225

speakers

talk to us…Steven Conway | 020 7337 1037 | steven.conway@brownejacobson.com