Regulation 15 of The Management Of Health And Safety At Work Regulations 1999 (MHSWR) states that employees must inform their employer of dangerous occurrences/situations in the employer’s H&S arrangements. If the employee informed the management about the poorly stacked equipment then the company should have requested that he re-stack them properly or delegate the task to another member of staff if for whatever reason he was unable to do the task properly, if the employee did not inform the company of the poorly stacked equipment he would be in breach of regulation 14 of MHSWR.
Regulation 13 of Workplace (Health, Safety and welfare) Regulations 1992 states that so far as reasonably practicable measures should be taken to prevent any person being struck by a falling object likely to cause personal injury. (Smith et al., 1993). The company therefore will have to try to convince the authorities that enough action had taken place to avoid the injury happening as the regulation stated that “so far as reasonably practical” to avoid the accidents happening. Regulation 13 (3a) states employers have to take capabilities as regards H&S into account when assigning tasks, adequate training should be given to all staff and that training must be repeated where appropriate to take into account new or changed tasks to the employee concerned. As the employee has previously been warned about carelessness and ignoring proper procedures the company should have retrained the employee so he was able to do the job adequately.
The company also has to comply with the occupiers Liability Act (1957). Section 2(2) states that a common duty of care is a duty to take care to see that visitors will be reasonably safe while using the premises for the purposes for which he is permitted by the occupier to be there. (Scott, 1993).
The MHSWR require a suitable and sufficient assessment of the risks to health and safety. The company, who owes a duty under these regulations, should have carried out an assessment. If the assessment does not measure up to the standard set in the regulations it is evidence of negligence and is a breach of statutory duty which is actionable if it caused the member’s injury. (Smith et al., 1993).
Relevant Torts
The incident that occurred may have breached Tort Law. A tort is a wrongful act, damage or injury done wilfully, negligently or ion circumstances involving strict liability.
The actions that occurred could have breached the following torts: tort of negligence, tort of breach of statutory duty or the tort of vicarious liability. Under tort law the negligence of the company or the employee may have been unintentional but it is still a tort.
For the tort of negligence proof of negligence must be shown and the duty of care by the plaintiff must be defined. Section 47 (2) states “Breach of duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”. (Smith et al., 1993. p 25).
In a claim for negligence it is necessary for the member to show:
1). The company owed him a duty of care,
2). That the company was in breach of that duty,
3). That as a result of the breach the member suffered damage. (Goodman, 1988).
In a claim for negligence it must be considered whether a duty of care existed. Once the existence has been established, the question of breach turns to whether the defendant exercised the degree of skill and care in the performance of the tortious duty. If the defendant’s duty was only to protect the plaintiff against personal injury or physical damage, then that kind of damage must be inflicted in order to complete the tort of negligence. (Jackson & Powell, 1992).
Closely related to negligence is res ispa loquitur, which means, “the matter speaks for itself”, under this principle the plaintiff shows that he has suffered injury or other damage which has bee caused by some event or thing:
1). Which at all material times was under the sole control of the defendants, and
2). Which would not normally occur without negligence on the part of the person in control, then the plaintiff would succeed unless the defendant can show that there was no negligence. (Goodman, 1988).
The tort of vicarious liability is where an employer is liable for the act of another. An employer is liable for the acts of his servants acting in the course of their employment. (Goodman, 1988). This is a liability related to this case as the management of the company did not personally but the equipment away but allowed the employee through his job requirements to stack the equipment up so they could be liable for his mistake.
Arguments in a Civil Action
The plaintiff will only be able to sue the company by reliance upon the regulations, as interpreted by reference to the directives. Where the regulation fails to implement the terms of as directive an action may well lie against the Member State for this failure. (Smith et al., 1993).
If the member may wish to sue the company he worked or the employee, who was responsible for piling up the boxes, in this case he may approach the subject as a breach of civil law. In civil law the claimant (member) must show that he was owed a duty of care and that this duty was breached.
The company could state that they adhered to section 2 (2) c) of the act and that the employee had been given the proper instructions and had the knowledge but chose not too stack the boxes properly through no fault of their own.
If the evidence fails to explain or leaves in doubt how the accident happened, the plaintiff will find it difficult to establish liability. In one case (Youngman v. Pirelli, 1940) a lineman going up an electrical pole was electrocuted on reaching the tie bar. The crucial question was to how his body had come into contact with the current, and as the evidence failed to explain this, the claim failed. (Goodman, 1988. p 20). If the member could prove that the accident happened by reason of some defect that would normally not happen and providing there is some evidence to show that the defect was within the responsibility of the company, it would be for the defendant (company)to show that the defect arose in circumstances not amounting to negligence. (Goodman, 1988).
Case Law
A similar offence occurred in May 1995 when London Borough of Havering were involved in a case where a 6 year old was injured while playing on a park gate, where there was no maintenance of the heavily corroded gates. This case was tried at the magistrates courts and dealt with the HASAWA 3 (1). (HSE-Databases.co.uk, 2002a).
Another offence in this area was a breach of HASAWA 3 (1) and MHSWR 13 (3a) by Caledonia Community Leisure Ltd where the case arose from the death of a 4 year old who drowned whilst swimming in the aquadome.
The company had failed to supervise the swimming pool properly, operate an appropriate admissions policy and provide ongoing training for its lifeguards. (HSE-Databases.co.uk, 2002b).
In the first case the defendant had been negligent which led to the child having the accident, whereas it was the employee’s negligence caused the accident in the leisure company rather than the management. In the second case it was a lack of supervision, which led to the death of the child. Had the management of the company been better supervising the employee or the injured member the accident may not have occurred.
Conclusion
This essay has shown that a many number of acts and regulations have been broken. With more information on the case the court would either find the company and / or guilty of not meeting the said regulations set out in the acts. The company could be made liable through the health and Safety executive for criminal and / or the member for civil action for the injuries sustained.
If the company was made liable for the act of the employee (under vicarious liability) they would be able to claim from that such other contribution which could be found by the court to be just and equitable having regarded the extent of the employee’s responsibility for the damage in question, from the Civil Liability (Contribution) Act, 1978 sections 1&2. (Goodman, 1988). This means the company could claim that the employee knew how to do his job properly and he ignored proper procedures, which then led to the accident taking place. So if the court agreed with this claim the employee would be required to pay the company the money they had to pay out to the injured member.
References
Goodman, M. (1988) Health and Safety at Work, Law and Practice. London: U.K.
Sweet & Maxwell
Health and Safety Executive (2002 a). HSE Public Register Of Convictions. Website. [online]. Available from: http:www.hse-databases.co.uk/prosecutions/case/case_details.asp?SF=CN&SV=F050000135 [Accessed 22nd November 2002].
Health and Safety Executive (2002 b). HSE Public Register Of Convictions. Website. [online]. Available from: http:www.hse-databases.co.uk/prosecutions/case/case_details.asp?SF=CN&SV=F200000417 [Accessed 22nd November 2002].
Jackson, R. & Powell, J. (1992) Professional Negligence. 3rd ed. London: U.K.
Sweet & Maxwell.
Scott, M. (1993) Leisure Services Law. London: U.K. Sweet & Maxwell.
Smith, J. Goddard, C. & Randall, N. (1993) Health and Safety, The New Legal Framework. Wiltshire: U.K. Butterworths.
