Donaldson v Hays Distribution Services Limited - The Limits of Regulation
Donaldson v Hays Distribution Services Limited - The Limits of Regulation
The Scottish Court of Session has recently addressed a question which has been taxing courts in all parts of the United Kingdom ever since the Workplace (Health, Safety and Welfare) Regulations 1992 came into force. That question is whether non-workers can take advantage of the use of terms such as “any person”, “a person” or “pedestrians” in certain of the Workplace Regulations so as to successfully argue that it was not necessary to show that an injured person was working in the particular workplace in order for them to have the protection of the particular regulation. Donaldson v Hays Distribution Services Limited [2005CSIH48] suggests that the answer to the question is that only workers can claim the benefit of the Workplace Regulations, however loose the language in a particular regulation may be.
The question had been addressed previously by no less than five Sheriff Courts in Scotland. The first case was Banna v Delicato 1999 SLT (Sh Ct) 84, in which the use of the words “a person” in Regulation 12(3) (duty to keep floors free from obstructions and from articles or substances which may cause a person to slip, trip or fall) was held to be wide enough to enable a customer in a shop to rely upon the statutory duty. The Sheriff appears to have been particularly influenced by the fact that other provisions (e.g. Regulation 11(1) – workstations shall be so arranged that it is suitable for any person at work) did expressly limit their application to workers. The decision in Banna was followed by 3 of the 4 other Sheriff Court decisions.
However in, Layden v Aldi GmbH & Co. KG 2002 SLT (Sh Ct) 71, another case involving Regulation 12(3), the Sheriff concluded that the reference to “a person” was not intended to define the class of people entitled to the benefit of the regulation, but to define the extent of the risk i.e. those persons at work who might slip, trip or fall as a result of the presence of the obstruction, article or substance in question. In contrast to Banna, a detailed analysis of the historical and statutory context of the Workplace Regulations was undertaken.
In Northern Ireland Shiel J. cited Banna with approval in McCully v Farrans Limited [2003] NIQB 6 although it is to be noted that the plaintiff was a self-employed worker, not a non-worker visitor.
In England, Recorder Simon Levene rejected the argument that a visitor to a public car park (where parking attendants worked) could rely upon Regulations 5 and 12 and cited with approval the decision in Layden. This decision was the subject of an application for permission to appeal by the claimant in Ricketts v Torbay Council [2003] EWCA Civ 613. In rejecting the application, the Court of Appeal dealt for the first time with the question. Auld L.J. rejected an argument that, because the Workplace Regulations were made under the Health and Safety at Work etc. Act 1974, and one of the general purposes of that statute (Section 1(1)(b)) was to protect “persons other than persons at work”, it should be inferred that the Workplace Regulations were intended to protect that wider class of persons. The Court of Appeal made particular reference to the fact that the Workplace Regulations were intended to give effect to the Workplace Directive, which was itself clearly only intended to protect workers. In that context, in the absence of any direct indication that Parliament intended to protect a wide class of persons than worker, Auld LJ agreed with Recorder Levene and with the reasoning in Layden. He went on to point out that, if the claimant was correct, a much stricter liability would be imposed upon many occupiers than was imposed under the Occupiers Liability Act 1957 and he said that he believed that that cannot have been the intention of the draftsman of the Workplace Regulations.
Lord Drummond Young in McCondichie v Mains Medical Centre [2004] RepLR 4 also decided that Regulation 12(3) only protected workers and found that the words of that regulation defined the nature of the risk rather than the class of person protected. He too pointed out that a decision to the contrary would represent a major extension of the scope of liability to visitors to commercial premises of all kinds (strict liability with only the defence of reasonable practicability) and he did not accept that this would have been done without that being stated expressly in the UK legislation.
So the Court of Session was faced with authorities going in different directions when they came to consider the case of Mrs Anderson. She was a customer who was directed to the loading bay of a shop to collect her purchases. She was crushed between a reversing lorry and the loading bay. She had no case at common law against one of the defendants and there was a trial of the preliminary issue as to whether she could rely upon the Workplace Regulations. In contrast to most of the cases, this case dealt with Regulations 17(1) and (2) rather than regulation 12(3). However the arguments were similar. The pursuer argued that she was a “pedestrian” for the purposes of Regulation 17(1) and a “person” for the purposes of Regulation 17(2).
The Court of Session helpfully set out the history of the various decisions and the reasons given. The reasons for their decision that non-workers could not rely upon Regulation 17 were summarised as follows:
“i. the fact that the Workplace Regulatoins were enacted to give effect in the United Kingdom to the Workplace Directive, which applies exclusively for the protection of wokers;
ii. the absence of any positive indication in the legislation that it was intended that the Workplace Regulations should afford protection to those coming onto the premises as visitors; and
iii. the extreme improbability that the legislative intention was to supersede much of the law of occupiers’ liability tacitly by the mere use of general language which might be said in the abstract to be capable of having that effect.”
Whilst it was accepted that Parliament could enact legislation or regulations which went further than a particular directive required (see e.g. Stark v Post Office [2000] ICR 1013 re the Work Equipment Directive), the Court of Session accepted that there was no sufficient indication that that was in fact Parliament’s intention when enacting the Workplace Regulations. The decision in Donaldson emphasised the importance of not interpreting individual words such as “person” or “pedestrian” in isolation – the words had to be interpreted in context. Once that was done, the inevitable result was a conclusion that only workers are protected by the Workplace Regulations.
It is perhaps noteworthy that, in a case decided just 3 months before Donaldson, the claimant abandoned an attempt to suggest that a guest at a hotel, who was staying there whilst attending a course in connection with his work, but was not in fact working at or in the hotel, was entitled to the benefit of Regulation 15(2) of the Workplace Regulations. The judge in that case (Lewis v Six Continents plc (formerly Bass plc) [2005] EWHC 316 (QB)), Roger Ter Haar Q.C., described the abandonment of that suggestion as wise. However, presumably, had the course which Mr Lewis was attending actually been arranged at the hotel, as opposed to at a separate location, then he could legitimately have claimed that he was entitled to the protection of the Workplace Regulations if the accident happened during the course. Would the answer be the same if he took some paperwork to his room and worked on it there during the evening?
Lewis was in fact advanced on the basis that, although the claimant himself could not rely directly on the Workplace Regulations, the fact that the defendants were obliged to comply with the provisions of Regulation 15(1) in relation to their own (and other) workers meant that taking reasonable care under the Occupiers’ Liability Act 1957 involved ensuring compliance with that Regulation even though the person in fact injured was not someone for whom the Workplace Regulations were enacted. On the facts of that case that submission was rejected. However, there is no reason why, in an appropriate case, the standard of care at common law or under the 1957 Act should not be judged against the standard which a defendant was in any event under a duty to meet in relation to workers within the premises in question.
The decisions in Donaldson in Scotland and in Ricketts in England and Wales appear to have put an end to arguments that pure visitors (e.g. customers in shops, hotel guests, drivers in car parks) can get around difficulties in proving negligence by relying upon the more onerous duties imposed on those who control workplaces by the Workplace (Health, Safety and Welfare) Regulations 1992. However it seems likely that there will continue to be debates about whether a particular person is to be classed as a worker for the purpose of the regulations (e.g. what about a solicitor parking his car in the court car park who falls in a pothole?) and as to the extent to which the standards laid down by the Workplace Regulations can be used by non-workers to show the standard of care which the occupiers were required to meet.