The value of a risk assessment and knowing the law
Risk assessments prevent accidents, writes Ben McBride, and the Court of Appeal has confirmed it
In 2003/2004 falls from height caused 67 fatal accidents at work in Britain and nearly 4,000 major injuries. They were the single biggest cause of workplace deaths and one of the main causes of major injury at work.
The Young review of health and safety (see Health and Safety News Autumn 2010) made much of risk assessments being a burden on business. The Health and Safety Executive has already responded by consulting on “simplified” risk assessments for “low risk” workplaces such as offices and shops.
But a recent Court of Appeal ruling in a case involving a fall from a ladder in a shop underlines how simple risk assessments and attention to legal duty go to the heart of the prevention of accidents, no matter what the workplace or perceived level of risk of the task.
In Bhatt -v- Fontain (2010) EWCA Civ 863 CA, the court was asked to decide if the action of an employee, in climbing a ladder when it was not footed, absolved them of liability for the fall that the employee then suffered.
The employer had bought a garage, in part as new premises for his stock. He scoured the workplace for somewhere to store hundreds of lightweight spoilers for Audi bumpers and eventually settled on some loft space.
He appeared to be someone who was very conscientious about health and safety. He regularly contacted the Health and Safety Executive about safe practice and was very aware of the danger of work on ladders.
He had introduced a strict system for accessing the loft, which was restricted to three well-trained workers: one to foot the ladder, one to access the loft and one to receive goods passed down.
The system was spelled out to the workers in great length and included instructions on how to complete each stage, right from how to switch the loft light on. The types of ladder used were carefully considered too.
However, one of the employees went ahead and tried to access the loft on his own without a colleague to foot the ladder. He fell and was injured and pursued a claim for personal injury which was strongly defended by his employer’s insurer.
The injured man freely admitted at trial that, had the ladder been footed, he would probably not have fallen. The defendant effectively argued that was the end of the case.
They said the instructions issued about accessing the loft amounted to a safe working practice and, had the claimant followed them, no accident could have occurred. So the accident was entirely his fault. The claimant argued that this was the wrong way to approach the Work at Height Regulations.
Regulation 6(2) of the Work at Height Regulations  states: “Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height.”
Therefore, the claimant argued, it was no defence to say that the accident would have been avoided if the instructions for use of the ladder had been strictly followed. He should not have been on a ladder in the first place.
His departure from the prescribed practice was precisely the sort of behaviour invited by the lengthy complex and makeshift system and the likelihood of this happening reinforced the need for a safe means of storage or access to have been provided.
This is an important point that runs through health and safety and personal injury law. Devising complex rules and procedures to try to avoid injuries being caused by a risky system of work will not prevent accidents.
Human error does happen. The essence of health and safety law at work is to have a system of risk assessment to avoid the risk in the first place. If an employer cannot reasonably do that, they should minimise the risk by other means.
Work at Height Regulations
The Work at Height Regulations have a simple structure. Carry out a risk assessment to:
- avoid work at height where possible and
- use work equipment or other measures to prevent falling where it is not.
The same principles cover the regulations for manual handling and tripping hazards.
The judge who first heard the Bhatt case ruled he should decide if working at height could, as far as reasonably practicable, have been avoided. He concluded that the bumpers could have been stored elsewhere off premises, or sold off.
To put them in the loft was to make a saving for want of obvious storage space. That was a business decision which, in terms of the regulations, had to be set against the fact it created a need to work at height.
He said: “To say that because [the defendant] had too many goods and that was the only place they could store them and therefore it was not reasonably practicable to carry out the work otherwise than at height seems to me to be a non-starter.”
The defendant appealed on the grounds that this ignored the needs for a small business that had devised a perfectly safe way to access, very occasionally, some dwindling stock for a short time.
The Court of Appeal agreed that the regulations and not the claimant’s conduct should be the starting point. The hierarchy of the regulations were clear that work at height should first be avoided if possible.
The CA also agreed with the first judge that the defendant’s search for other possibilities was far from exhaustive. Indeed the defendant had found ground level space to store the spoilers in after the accident.
So the defendant had not avoided work at height as far as was reasonably practicable and there was a breach of duty of regulation 6(2) of the regulations.
Lord Justice Richards said: “What happened is the very kind of event that the regulations are aimed at preventing. [The defendant’s] failure to follow the prescribed procedure when doing work he should not have been required to do at all ... does not mean that the accident was caused by him alone. It goes only to contributory negligence.”
Inevitably there will be cases where a ladder does reasonably have to be used to access stock stored at height. On that issue, the Court of Appeal also upheld the trial judge’s finding that, if stock were stored in a loft and work at height could not be avoided, then the risk could be reduced at a cost of a few hundred pounds by installing a fixed loft ladder.
The failure to install a safer alternative to a movable ladder, was a breach of Regulation 7(2) of the regulations – provision of work equipment.
In the specific area of working with ladders, the regulations state that a ladder should only be used for work at height if that work cannot be avoided, if a risk assessment under regulation 3 of the Management of Health and Safety at Work regulations 2003 has demonstrated that use of more suitable work equipment is not justified because of the low risk, and either the short duration of its intended use or existing features of the site cannot be altered.
If a workplace inspection reveals any foreseeable risk of injuries, then that implies the risk has not been avoided.
It is not enough for an employer to say that something is an obvious risk that can be avoided if the employee is careful. That applies to leaving a big, bright box in the corridor (Burgess -v- Plymouth CC (2005) EWCA Civ 1659), to telling someone to ask for help if they think a load seems too heavy and to instructing an employer to get someone to foot a ladder if they use it.
The essence of risk assessments and the law is to look for the danger and remove it in the first place.
The judgment should empower safety representatives and injured parties’ lawyers.
It illustrates that a reasonable risk assessment, complying with clearly set out law:
- should prevent an accident in the first place; and, if it does not
- the legal argument should not focus first on the victim’s actions leading up to and allegedly “causing “ the accident but rather the employer’s decision at risk assessment stage and whether that led to the accident; and that
- a well put legal case and well informed Judge should establish judgment for the injured party.