Case Law ExamplesCase Law Examples

NEBOSH Diploma Study GuideNEBOSH Diploma Study GuideComplied by Berni Carey Oct 2009Complied by Berni Carey Oct 2009

Disclaimer – This is my personal list, you may Disclaimer – This is my personal list, you may wish to come up with others. I do not claim this wish to come up with others. I do not claim this to be the only case law examples needed whilst to be the only case law examples needed whilst

studying the diploma.studying the diploma.

““Absolute Duty”Absolute Duty”

Summers (John) & Sons v Frost Summers (John) & Sons v Frost (1955)(1955) Frost injured his thumb on a grinding Frost injured his thumb on a grinding

wheelwheel Court held that Factories Act required Court held that Factories Act required

‘all dangerous part to be fenced’ – ‘all dangerous part to be fenced’ – therefore an therefore an absolute dutyabsolute duty to guard all to guard all parts, even if doing so prevented the parts, even if doing so prevented the machine being used.machine being used.

““Practicable”Practicable”

Adsett v K and L Steelfounders and Adsett v K and L Steelfounders and Engineers (1953)Engineers (1953) Practicability is that of current Practicability is that of current

knowledge and invention – once knowledge and invention – once something is found to be practicable it is something is found to be practicable it is feasible and must be done irrespective feasible and must be done irrespective of cost or inconvenience. of cost or inconvenience.

““Reasonably Practicable”Reasonably Practicable”

Edwards v National Coal Board Edwards v National Coal Board (1949)(1949) Edwards was killed in a coal mine rock Edwards was killed in a coal mine rock

fall. fall. The case established that ‘reasonably The case established that ‘reasonably

practicable’ allowed a risk assessment practicable’ allowed a risk assessment of the benefit v the costs (time, trouble of the benefit v the costs (time, trouble or money).or money).

‘‘Practicable’ or ‘Reasonably Practicable’ or ‘Reasonably So’So’

Marshall v Gotham & Co.Marshall v Gotham & Co. Marshall was killed when the mine roof Marshall was killed when the mine roof

fell in. It would have been ‘practicable’ fell in. It would have been ‘practicable’ to shore up the entire roof system, but to shore up the entire roof system, but not ‘reasonably so’, given that it was not not ‘reasonably so’, given that it was not known there was a fault there. To have known there was a fault there. To have shorn up the entire roof of the mine ‘just shorn up the entire roof of the mine ‘just in case’ would not have been reasonable in case’ would not have been reasonable in the circumstances.in the circumstances.

Helpers' liability in tort Helpers' liability in tort

Baker v. T E Hopkins & Son Ltd (1959)Baker v. T E Hopkins & Son Ltd (1959) A doctor died whilst attempting to give aid to 2 A doctor died whilst attempting to give aid to 2

workers (who also died).workers (who also died). The defendants were liable in respect of the The defendants were liable in respect of the

death of the employees and also of the doctor: death of the employees and also of the doctor: it was a natural and probable consequence of it was a natural and probable consequence of the defendants' negligence towards the the defendants' negligence towards the employees that someone would attempt to employees that someone would attempt to rescue them; the defences of novus actus rescue them; the defences of novus actus interveniens (‘new act intervening’) and interveniens (‘new act intervening’) and volenti non fit injuria (‘to a willing person, no volenti non fit injuria (‘to a willing person, no injury is done’) could not be successfully relied injury is done’) could not be successfully relied upon against the doctor's dependants .upon against the doctor's dependants .

Duty to trespassersDuty to trespassers

British Railways Board v Herrington (1971)British Railways Board v Herrington (1971) Child was injured on the lines after getting Child was injured on the lines after getting

through a broken fence.through a broken fence. The House of Lords held that the occupier of the The House of Lords held that the occupier of the

railway premises owed a duty of common railway premises owed a duty of common humanity to the child. humanity to the child.

Until this case no duty of care was owed to Until this case no duty of care was owed to trespassers. trespassers.

Note - Overruled Addie & Sons v Dumbreck Note - Overruled Addie & Sons v Dumbreck [1929] [1929] an ‘occupier … only liable to a an ‘occupier … only liable to a trespasser… injured… intentionally or recklessly’. trespasser… injured… intentionally or recklessly’.

Self employed regarded as Self employed regarded as ‘employees’‘employees’

Ferguson v John Dawson and Partners Ltd Ferguson v John Dawson and Partners Ltd (1976)(1976) Ferguson fell off a roof while removing Ferguson fell off a roof while removing

some scaffolding boards.some scaffolding boards. both parties labelled Ferguson a "self-both parties labelled Ferguson a "self-

employed labour only subcontractor“.employed labour only subcontractor“. Court held Court held the relationship between the relationship between

them was that of employer and them was that of employer and employee.employee.

Employers duty to maintain Employers duty to maintain equipmentequipment

Barkway v Sth Wales Transport Co Ltd Barkway v Sth Wales Transport Co Ltd (1950)(1950) Man killed in a coach crash due to burst tyre.Man killed in a coach crash due to burst tyre. Company could show a system for inspecting Company could show a system for inspecting

and testing tyres.and testing tyres. However, they did not require drivers to report However, they did not require drivers to report

incidents where tyres could be damaged thus incidents where tyres could be damaged thus held liable for negligence.held liable for negligence.

Employers duty to maintain Employers duty to maintain work equipmentwork equipment

Bradford v Robinson Rentals Ltd Bradford v Robinson Rentals Ltd (1967)(1967) Driver suffered frostbite, driving 400 Driver suffered frostbite, driving 400

miles during a severe cold spell in an miles during a severe cold spell in an unheated van with cracked windows.unheated van with cracked windows.

Employers held liable for failing to Employers held liable for failing to provide suitable plant. provide suitable plant.

Liability does not apply Liability does not apply retrospectively…retrospectively…

Cambridge Water Co v eastern Counties Cambridge Water Co v eastern Counties Leather plc (1994)Leather plc (1994) Tannery which had permitted perchloroethane to Tannery which had permitted perchloroethane to

percolate into the aquifer.percolate into the aquifer. House of Lords unanimously found that Eastern House of Lords unanimously found that Eastern

Counties Leather plc was not liable for the water Counties Leather plc was not liable for the water contamination. contamination.

Lords accepted that Eastern Counties Leather Lords accepted that Eastern Counties Leather would not have foreseen that the solvent would would not have foreseen that the solvent would leak from the tannery floors down into the water leak from the tannery floors down into the water source. source.

Claim of tortClaim of tort

Corn v Weirs Glass (Hanley) Ltd (1960)Corn v Weirs Glass (Hanley) Ltd (1960) A successful claim of tort of breach of A successful claim of tort of breach of

duty requires the loss to be duty requires the loss to be consequential to the breach.consequential to the breach.

A glazier fell from a stairs with no A glazier fell from a stairs with no handrail, while holding a sheet of glass handrail, while holding a sheet of glass with both hands.with both hands.

The fall was not consequential to the The fall was not consequential to the lack of hand rail since he could not have lack of hand rail since he could not have held it if it were there.held it if it were there.

Tort – escape of stored Tort – escape of stored materialsmaterials

Rylands v Fletcher (1868)Rylands v Fletcher (1868) Landmark case.Landmark case. Rylands built a reservoir.Rylands built a reservoir. Disused mine workings had been found during Disused mine workings had been found during

construction but not sealed off.construction but not sealed off. Led to Fletcher’s mines being flooded.Led to Fletcher’s mines being flooded. Ruling “Ruling “the person who for his own purposes the person who for his own purposes

brings on his lands and collects and keeps brings on his lands and collects and keeps there anything likely to do mischief if it there anything likely to do mischief if it escapes, must keep it at his peril...”escapes, must keep it at his peril...”

Tort - duty of care to Tort - duty of care to vulnerable employees vulnerable employees

Paris v Stepney Borough Council (1951)Paris v Stepney Borough Council (1951) Paris was blind in one eye but he concealed Paris was blind in one eye but he concealed

this until examined by a company doctor.this until examined by a company doctor. Was given 2 weeks notice (1950 remember) – Was given 2 weeks notice (1950 remember) –

2 days before leaving was struck in good eye 2 days before leaving was struck in good eye by piece on metal, blinding him.by piece on metal, blinding him.

On Appeal - Council owed a special duty of On Appeal - Council owed a special duty of care to Paris and had been negligent in failing care to Paris and had been negligent in failing to supply him with goggles. to supply him with goggles.

Employer liability for latent Employer liability for latent defects in tools or equipmentdefects in tools or equipment

Davie v New Merton Board Mills Ltd (1958)Davie v New Merton Board Mills Ltd (1958) The claimant lost his claim against his employer The claimant lost his claim against his employer

following an injury from a tool with a hidden defect. It following an injury from a tool with a hidden defect. It was held that the employer was not negligent. was held that the employer was not negligent.

Led to the Led to the Employers' Liability (Defective Equipment) Employers' Liability (Defective Equipment) Act 1969Act 1969. Providing that if an employee is injured in . Providing that if an employee is injured in the course of his employment as a consequence of a the course of his employment as a consequence of a defect in equipment, provided by his employer for defect in equipment, provided by his employer for use in connection with his business, then that defect use in connection with his business, then that defect will be attributable to the negligence of the will be attributable to the negligence of the employer. employer.

However, any damages paid by the employer can However, any damages paid by the employer can then be recovered from the manufacturer or other then be recovered from the manufacturer or other responsible party.responsible party.

Duty to provide safe system of Duty to provide safe system of workwork

General Cleaning Contractors v Christmas General Cleaning Contractors v Christmas (1952)(1952) Window cleaner injured when he fell after Window cleaner injured when he fell after

a sash window he was holding, suddenly a sash window he was holding, suddenly moved.moved.

Company not negligent of failing to provide Company not negligent of failing to provide equipment, e.g. ladders, safety straps etc.equipment, e.g. ladders, safety straps etc.

Company Company werewere negligent of providing a negligent of providing a safe system of work, e.g. instructing safe system of work, e.g. instructing workers to test windows for safety.workers to test windows for safety.

Systems of workSystems of work

Speed v Swift (Thomas) & Co Ltd Speed v Swift (Thomas) & Co Ltd (1943)(1943) Lord Green defined ‘Systems of Work’…Lord Green defined ‘Systems of Work’… It may be the physical layout of the job – It may be the physical layout of the job –

the setting of the stage, so to speak – the setting of the stage, so to speak – the sequence in which the work is to be the sequence in which the work is to be carried out, the provision in proper carried out, the provision in proper cases of warnings and notices, and the cases of warnings and notices, and the issue of special instructions.issue of special instructions.

Non-delegatable duty of Non-delegatable duty of care.care.

Wilsons & Clyde Coal v English (1937)Wilsons & Clyde Coal v English (1937) English was crushed at work and claimed English was crushed at work and claimed

damages. The employer claimed their agent was damages. The employer claimed their agent was responsible for safety at that workplace (a mine).responsible for safety at that workplace (a mine).

Ruling: The employer's duty to his employees is Ruling: The employer's duty to his employees is personal and non-delegable. personal and non-delegable.

He can delegate the performance of the duty to He can delegate the performance of the duty to others, whether employees or independent others, whether employees or independent contractors, but not responsibility for its contractors, but not responsibility for its negligent performance.negligent performance.

Duty of care – Stress (1)…Duty of care – Stress (1)…

Walker v Northumberland County Council Walker v Northumberland County Council (1995)(1995) Plaintiff was a Social Worker Team Leader, who Plaintiff was a Social Worker Team Leader, who

reported stress from workload, eventually reported stress from workload, eventually having a breakdown.having a breakdown.

On return to work the promised assistance was On return to work the promised assistance was inadequate and 2inadequate and 2ndnd breakdown resulted, breakdown resulted, forcing retirement. forcing retirement.

The council was found to have breached its The council was found to have breached its duty in respect of the second nervous duty in respect of the second nervous breakdown, though not the first. breakdown, though not the first.

Note - The first case in legal history where an employee was awarded Note - The first case in legal history where an employee was awarded damages for 'psychiatric injury' suffered a result of work related stress.damages for 'psychiatric injury' suffered a result of work related stress.

Duty of care – Stress (2)…Duty of care – Stress (2)…

Sutherland v Hatton and others (2002)Sutherland v Hatton and others (2002) Court of Appeal heard 4 cases relating to Court of Appeal heard 4 cases relating to

‘Stress’ awards at lower court.‘Stress’ awards at lower court. Overturned 3 of 4 awards, because the Overturned 3 of 4 awards, because the

individuals had not taken any action to individuals had not taken any action to inform their employers of their problems.inform their employers of their problems.

44thth case (Jones v Sandwell MBC) not case (Jones v Sandwell MBC) not revoked as she had informed her employer revoked as she had informed her employer but received no help.but received no help.

Higher Standards expected Higher Standards expected from experienced employee…from experienced employee…

Qualcast (Wolverhampton) Ltd v Hayes Qualcast (Wolverhampton) Ltd v Hayes (1959)(1959) Experienced worker splashed with molten Experienced worker splashed with molten

metal.metal. Spats were available, but not worn and not Spats were available, but not worn and not

enforced by employer.enforced by employer. Employee failed to gain compensation as they Employee failed to gain compensation as they

had chosen not to make use of it at their own had chosen not to make use of it at their own riskrisk..

Contributory negligence Contributory negligence Uddin v. Associated Portland Cement Mfrs. Uddin v. Associated Portland Cement Mfrs.

Ltd., (1965)Ltd., (1965) Uddin was employed in a cement factory.Uddin was employed in a cement factory. He went where he was not authorised to be in He went where he was not authorised to be in

order and climbed up to a position where there order and climbed up to a position where there was unfenced machinery. As a result he was unfenced machinery. As a result he became entangled with a revolving shaft and became entangled with a revolving shaft and lost an arm. lost an arm.

It made no difference that Uddin was in a part It made no difference that Uddin was in a part of the factory where he was not supposed to of the factory where he was not supposed to be or that he was doing something that had be or that he was doing something that had nothing to do with his work. nothing to do with his work.

Responsibility was apportioned on the basis of Responsibility was apportioned on the basis of 20% to the defendants and 80% to the plaintiff. 20% to the defendants and 80% to the plaintiff.

Volenti non fit injuria Volenti non fit injuria

ICI v Shatwell (1964)ICI v Shatwell (1964) 2 employees injured when they ignored 2 employees injured when they ignored

explosive regulations and company explosive regulations and company policy.policy.

Employers could successfully raise Employers could successfully raise ‘Volenti’ as defence.‘Volenti’ as defence.

The defence of ‘volenti non-fit injuria’ The defence of ‘volenti non-fit injuria’ will apply when there is true and free will apply when there is true and free consent to the risk.consent to the risk.

Master/servant relationship Master/servant relationship

Mersey Docks & Harbour Board v. Coggins Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. (1947)& Griffiths (Liverpool) Ltd. (1947) Coggins and Griffiths hired a crane and driver Coggins and Griffiths hired a crane and driver

from the Mersey Docks and Harbour Board. from the Mersey Docks and Harbour Board. Newall, the driver, drove the crane negligently Newall, the driver, drove the crane negligently and injured Mr Mcfarlane. and injured Mr Mcfarlane.

Contract between the Board and the hirers Contract between the Board and the hirers stated that the driver was to become their stated that the driver was to become their employee for the duration of the hire.employee for the duration of the hire.

Judgement - Control over Mr Newall's work had Judgement - Control over Mr Newall's work had notnot passed to the hirers. passed to the hirers.

A safe place of work…A safe place of work…

Paine v Colne Valley Electricity Supply Co Paine v Colne Valley Electricity Supply Co (1938)(1938) Found the employer liable after an Found the employer liable after an

employee was electrocuted because a employee was electrocuted because a kiosk had not been properly insulated. kiosk had not been properly insulated.

Vicarious Liability (1)Vicarious Liability (1)

Smith v Crossley Bros Ltd (1951)Smith v Crossley Bros Ltd (1951) An employer may be held criminally liable or An employer may be held criminally liable or

liable in common law for the negligent or liable in common law for the negligent or unlawful acts of a member of staff, even though unlawful acts of a member of staff, even though the member of staff wilfully disobeyed the the member of staff wilfully disobeyed the express instructions of his/her employer. express instructions of his/her employer.

Apprentices engaged in horseplay injected Apprentices engaged in horseplay injected compressed air into a 3compressed air into a 3rdrd person. person.

The employers were held The employers were held notnot liable. liable. Staff acted negligently “on a frolic of his/her Staff acted negligently “on a frolic of his/her

own” independently of the job. own” independently of the job.

Vicarious Liability (2)Vicarious Liability (2)

Lister v Romford Ice & Cold Storage Co. Lister v Romford Ice & Cold Storage Co. Ltd. (1957)Ltd. (1957) Father and son were employed by the same Father and son were employed by the same

company.company. Son negligently handled a vehicle, causing Son negligently handled a vehicle, causing

injury to his father. injury to his father. Father sued the company for the negligence of Father sued the company for the negligence of

the employee, his son. the employee, his son. Company (their insurance company) Company (their insurance company)

succeeded in obtaining similar damages from succeeded in obtaining similar damages from the son. the son.

Vicarious Liability (3)Vicarious Liability (3)

Rose v Plenty (1976)Rose v Plenty (1976) A milkman (against company orders) took a 13-year-A milkman (against company orders) took a 13-year-

old boy to help him on his round, and the boy was old boy to help him on his round, and the boy was injured through the milkman's negligent driving. injured through the milkman's negligent driving.

The boy sued both the milkman and the dairy.The boy sued both the milkman and the dairy. The trial judge found that the dairy was not liable. The trial judge found that the dairy was not liable. The Court of Appeal found the dairy vicariously liable The Court of Appeal found the dairy vicariously liable

for the boy's injuries. The boy was actually helping to for the boy's injuries. The boy was actually helping to deliver the milk, and so the driver's action was an deliver the milk, and so the driver's action was an unauthorised way of performing his duties. unauthorised way of performing his duties.

Practicability of precautionsPracticability of precautions

Latimer v. AEC Ltd (1953)Latimer v. AEC Ltd (1953) A freak flood left the floor oily.A freak flood left the floor oily. Employer used all available materials to absorb Employer used all available materials to absorb

the hazard.the hazard. Plaintiff came on shift unaware of the problem, Plaintiff came on shift unaware of the problem,

slipped and crushed ankle.slipped and crushed ankle. On Appeal - The employer took every step that On Appeal - The employer took every step that

reasonably could have been taken in the reasonably could have been taken in the circumstances and in so doing had negated circumstances and in so doing had negated any possible allegation of negligence . any possible allegation of negligence .

Neighbour principleNeighbour principle

Donoghue v Stevenson (1932)Donoghue v Stevenson (1932) Established the modern tort of negligence.Established the modern tort of negligence. Donoghue claimed illness after consuming a Donoghue claimed illness after consuming a

drink of ginger beer which contained a ‘snail’.drink of ginger beer which contained a ‘snail’. Eventually settled out of court.Eventually settled out of court. Lord Atkin’s remarks… Lord Atkin’s remarks… Who, then, in law, is my Who, then, in law, is my

neighbour? The answer seems to be - persons neighbour? The answer seems to be - persons who are so closely and directly affected by my who are so closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in contemplation as being so affected when I am contemplation as being so affected when I am directing my mind to the acts or omissions that directing my mind to the acts or omissions that are called in questionare called in question. .

Employment Right Act 1996Employment Right Act 1996

Employee has the right not to be Employee has the right not to be subject to detriment (s44) or subject to detriment (s44) or dismissal (s100) on the grounds that dismissal (s100) on the grounds that as a designated H&S employee they as a designated H&S employee they were doing or proposed to do their were doing or proposed to do their job or were performing their role as a job or were performing their role as a Safety C’ttee member.Safety C’ttee member.

Employment Right Act 1996 Employment Right Act 1996 (s100) (s100)

Protection for Employees Protection for Employees Masiak v City Restaurants LtdMasiak v City Restaurants Ltd

Chef dismissed for refusing to cook Chef dismissed for refusing to cook chicken which he considered unfit for chicken which he considered unfit for consumption.consumption.

On appeal, case upheld as s100 of the On appeal, case upheld as s100 of the ERA could refer to ‘other persons’ other ERA could refer to ‘other persons’ other than other employees, in this case the than other employees, in this case the paying customers.paying customers.

Employment Right Act 1996 Employment Right Act 1996 (s100) (s100)

Protection for Employees Protection for Employees Barton v Wandsworth Council (1995)Barton v Wandsworth Council (1995)

Ambulance driver disciplined for Ambulance driver disciplined for complaining about lack of trained complaining about lack of trained escorts when transporting patients with escorts when transporting patients with disabilities.disabilities.

Tribunal ruled in his favour – the actions Tribunal ruled in his favour – the actions taken against him were a detriment taken against him were a detriment when he voiced genuine concerns for his when he voiced genuine concerns for his own safety and that of the patients. own safety and that of the patients.

Employment Right Act 1996 Employment Right Act 1996 (s100) (s100)

Protection for Employees Protection for Employees Costain Building & Civil Eng v SmithCostain Building & Civil Eng v Smith

Smith was an ‘Independent Consultant’ Smith was an ‘Independent Consultant’ employed through an Agency.employed through an Agency.

Dismissed after writing critical Safety Dismissed after writing critical Safety Reports.Reports.

On appeal, dismissal upheld as s100 On appeal, dismissal upheld as s100 was for employees protection but Smith was for employees protection but Smith was employed by the Agency, not was employed by the Agency, not Costain.Costain.

HSWA s2 and s37HSWA s2 and s37

J Armour v J Skeen J Armour v J Skeen (Procurator Fiscal Glasgow)(Procurator Fiscal Glasgow) (1977)(1977) Armour was Director of Roads for Local Authority – Armour was Director of Roads for Local Authority –

Workman fell to death from a bridge.Workman fell to death from a bridge. Corporate Failure to have ‘safe system of work’ Corporate Failure to have ‘safe system of work’

HSWA s2HSWA s2 Individual Failure – not a ‘Director’ within meaning Individual Failure – not a ‘Director’ within meaning

of s37, of s37, butbut was within scope of ‘manager…or was within scope of ‘manager…or similar officer’. It was his individual failure to similar officer’. It was his individual failure to provide the SSW. HSWA s37provide the SSW. HSWA s37

HSAW s2(1) general dutiesHSAW s2(1) general duties

R v Gateway FoodmarketsR v Gateway Foodmarkets Employee fell through a trapdoor.Employee fell through a trapdoor. Company liable for actions of staff, in Company liable for actions of staff, in

leaving the hatch open, even though leaving the hatch open, even though they had taken all reasonable they had taken all reasonable precautions at a senior management precautions at a senior management level.level.

HSWA s2(1) general dutiesHSWA s2(1) general duties

Bolton Metropolitan Borough Council Bolton Metropolitan Borough Council v Malrod Insulations Ltdv Malrod Insulations Ltd

EHO discovered decontamination EHO discovered decontamination unit available for use by Asbestos unit available for use by Asbestos removal team had electrical faults.removal team had electrical faults.

Successful prosecution for making Successful prosecution for making the equipment available even though the equipment available even though not yet in use. not yet in use.

HSAW s2(1) general dutiesHSAW s2(1) general duties Langridge v Howletts Zoo & Port Lympne Langridge v Howletts Zoo & Port Lympne

Estates LtdEstates Ltd Prohibition Notice issued by local authority Prohibition Notice issued by local authority

preventing keepers entering Tiger enclosure preventing keepers entering Tiger enclosure after death of a keeper.after death of a keeper.

Zoo argued that keepers must enter the Zoo argued that keepers must enter the enclosure to bond with the animals.enclosure to bond with the animals.

On appeal, keepers allowed to enter the On appeal, keepers allowed to enter the enclosure with modified procedures.enclosure with modified procedures.

The Act is not concerned with the working The Act is not concerned with the working being done, but the manner of performing it.being done, but the manner of performing it.

HSWA s3HSWA s3

R v British Steel plc (1995)R v British Steel plc (1995) A sub-contractor working under A sub-contractor working under

supervision of a British Steel supervisor supervision of a British Steel supervisor was killed.was killed.

Under ‘Vicarious Liability’, the Under ‘Vicarious Liability’, the supervisor had failed in his duty, supervisor had failed in his duty, therefore British Steel had failed its therefore British Steel had failed its employers duty under s3.employers duty under s3.

HSAW s3HSAW s3

R v MaraR v Mara Director of a small cleaning company Director of a small cleaning company

contracted to clean a supermarket.contracted to clean a supermarket. Faulty cleaning machine left on supermarket Faulty cleaning machine left on supermarket

premises.premises. Supermarket employee used the machine and Supermarket employee used the machine and

was electrocuted.was electrocuted. Supermarket employees were ‘persons who Supermarket employees were ‘persons who

may be affected by the way the cleaning may be affected by the way the cleaning company carried on its undertaking’.company carried on its undertaking’.

HSAW s3HSAW s3

R v Nelson Group Services (Maintenance) R v Nelson Group Services (Maintenance) LtdLtd A properly trained and competent gas fitter left A properly trained and competent gas fitter left

a fitting in a dangerous condition.a fitting in a dangerous condition. It was held that an isolated act of negligence It was held that an isolated act of negligence

by an otherwise completely competent by an otherwise completely competent employee did not render the employer liable.employee did not render the employer liable.

Note – this defence is effectively closed by MHSWR 1999 Reg Note – this defence is effectively closed by MHSWR 1999 Reg 21 – ‘it will not be a defence for an employer to argue that the 21 – ‘it will not be a defence for an employer to argue that the contravention was due to the act or default of an employee… contravention was due to the act or default of an employee… or an person appointed as a H&S Assistant under Reg7.’or an person appointed as a H&S Assistant under Reg7.’

HSWA s3HSWA s3 R v Swan Hunter Shipbuilders Ltd (1982)R v Swan Hunter Shipbuilders Ltd (1982)

8 workers killed during construction of HMS 8 workers killed during construction of HMS Glasgow due to explosion in an oxygen enriched Glasgow due to explosion in an oxygen enriched environment.environment.

Swan Hunter had known of the potential risk and Swan Hunter had known of the potential risk and informed their own employees.informed their own employees.

Swan Hunter failed to inform other contractors Swan Hunter failed to inform other contractors and sub-contractors.and sub-contractors.

Swan Hunter had a duty to ensure the health and Swan Hunter had a duty to ensure the health and safety of its own employees. If the ignorance of safety of its own employees. If the ignorance of another company’s employees places its own another company’s employees places its own employees at risk then it is the company’s duty to employees at risk then it is the company’s duty to inform the employees of another of any special inform the employees of another of any special risks within its knowledge.risks within its knowledge.   

HSAW s3HSAW s3 R v Associated Octel Co Ltd (1996)R v Associated Octel Co Ltd (1996)

An employee of a contractor badly burned An employee of a contractor badly burned while conducting repairs to a chemical while conducting repairs to a chemical tank.tank.

The Contractor was prosecuted under s2 The Contractor was prosecuted under s2 for the injury to their employee.for the injury to their employee.

Octel were prosecuted under s3 - the Octel were prosecuted under s3 - the maintenance of the tank was part of their maintenance of the tank was part of their undertaking – that it was being carried out undertaking – that it was being carried out by a contractor was irrelevant, as it was on by a contractor was irrelevant, as it was on their site so it was still under their control. their site so it was still under their control.

HSAW s3HSAW s3

R v Board of Trustees of Science Museum R v Board of Trustees of Science Museum (1993)(1993) Alleged that the public put at risk of exposure Alleged that the public put at risk of exposure

to Legionella Pneumophilia (LP) due to failure to Legionella Pneumophilia (LP) due to failure to instigate regular system of cleansing Air Con to instigate regular system of cleansing Air Con system.system.

It was not necessary to show that the public It was not necessary to show that the public had inhaled LP, only that there was a risk of had inhaled LP, only that there was a risk of doing so. doing so.

Court of Appeal upheld conviction.Court of Appeal upheld conviction.

HSWA s4HSWA s4

Westminster City Council v Select Westminster City Council v Select Managements LtdManagements Ltd Improvement Notice relating to lifts and Improvement Notice relating to lifts and

electrical equipment in block of flats.electrical equipment in block of flats. Company appealed on grounds that they were Company appealed on grounds that they were

‘domestic premises’ iaw s4 of HSWA.‘domestic premises’ iaw s4 of HSWA. Court of Appeal upheld that the ‘Common Court of Appeal upheld that the ‘Common

Areas’ were not domestic but available for use Areas’ were not domestic but available for use by others as a place of work or where they may by others as a place of work or where they may use plant, e.g. lifts.use plant, e.g. lifts.

HSWA s4HSWA s4

Moualem v Carlisle City Council Moualem v Carlisle City Council (1994)(1994) Defendant operated a Children’s Play Defendant operated a Children’s Play

Centre and convicted of failure to Centre and convicted of failure to comply with Improvement Notices.comply with Improvement Notices.

Children were using ‘plant’ in a non-Children were using ‘plant’ in a non-domestic premises.domestic premises.

Corporate ManslaughterCorporate Manslaughter Corporate Manslaughter and Corporate Corporate Manslaughter and Corporate

Homicide Act 2007Homicide Act 2007 The offence is concerned with corporate liability The offence is concerned with corporate liability

and does not apply to directors or other and does not apply to directors or other individuals who have a senior role in the company individuals who have a senior role in the company or organisation. or organisation.

The first ever successful UK Corporate The first ever successful UK Corporate Manslaughter prosecution was of the company Manslaughter prosecution was of the company involved in the Lyme Bay kayaking deaths (1993).involved in the Lyme Bay kayaking deaths (1993).

Previously, cases such as the Tebay rail deaths Previously, cases such as the Tebay rail deaths (2004), the Herald of Free Enterprise RORO Ferry (2004), the Herald of Free Enterprise RORO Ferry disaster (1987), Connington South rail crash disaster (1987), Connington South rail crash (1967) had resulted in prosecution of individuals(1967) had resulted in prosecution of individuals.