Creating a Safe System of Work
On 27 July 2010 the Court of Appeal published its judgment in the case of Bhatt –v- Fontain Motors Ltd. It’s a significant case – one of the first (if not the first) occasion that the Court of Appeal has considered the Work at Height Regulations 2005 (WHR).
Although the case involves an appeal against a decision in a personal injury action, it is equally applicable to health and safety cases. WHR applies to all work carried out at height. The definition of “at height” is very wide – any distance a person could fall and be liable to be hurt as a result.
Briefly, the facts of the case are these: The employer's premises were a car showroom. Storage space was tight. It was decided to store some car parts (that were only needed occasionally) in the loft space. The Managing Director personally devised a safe system of work (and demonstrated it to the employees) for retrieving the parts. It involved the employee standing on a step-ladder to remove a ceiling panel; then obtaining a long ladder to poke through the hole and using it to climb up and into the loft. Additionally the ladder had to be footed; and the number of people allowed to use the ladders was restricted.
An employee used the long ladder to get into the loft. It wasn't footed and the ladder slipped and he was injured. In evidence at the trial, the employee said he didn't know about the safe system of work but it was found that he had lied about that. It was also found that he had been told to wait a short while until a colleague could foot the ladder. You may be forgiven for thinking that he was totally at fault. However, at the original trial the judge accepted that there was contributory negligence (one-third) but that the employer was primarily liable because it hadn't complied with WHR. The employer appealed.
The case turned on regulations 6 and 7 WHR. Section 6(2) says that employers must ensure that work isn't done at height if it's reasonably practicable to do it safely other than at height; and section 7 says that (if it can't avoid doing the work in question at height) the work equipment the employer utilises must be suitable, taking account of all the conditions in which it is used.
The Court of Appeal agreed with the trial judge that the employer hadn't complied with its duties under sections 6 and 7 WHR. It found that it was reasonably practicable to have avoided the work at height - by storing the parts elsewhere and at floor level, which was what happened after the accident. It also found that a moveable ladder was not suitable given the conditions in which it would be used - a fixed ladder should have been installed. Accordingly, the appeal was dismissed.
The case is obviously important because it shows that the duties under WHR are very high indeed. But it's important for other reasons.
First, it shows that the starting point isn’t for an employer to ask "is it reasonable to do this at/from height?" The starting point is in essence to ask: Realistically is there a way of this work being done other than at height because, if so, that’s how it’s got to be done.
Second, it shows what employers are up against when it comes to selecting the work equipment for use at height. Having a system that should have ensured that the moveable ladder was footed may have sounded reasonable - but a fixed ladder would have been safer and it would have been reasonably practicable for the employer to have installed one.
Third, the Court criticised the Managing Director's self-created safe system of work, which is rather ironic given that the Health and Safety enforcement authorities generally advocate that it isn’t fundamental to get professional advice and assistance to create adequate health and safety systems and procedures.
Our advice to employers? Look again at the work you do from height and check it can’t be done otherwise. If it can’t be done otherwise think carefully whether the equipment is right for the job. And forgive us for putting it in this way but don’t fall down on this - health and safety compliance can be an uphill climb and, irrespective of what the health and safety authorities tell you, professional advice and assistance is – we believe – fundamental
mhl have a team of experienced advisers who are able to offer legally compliant and pragmatic advice about potential hazards and risks. Existing clients can call our support line team on 08453 100 999 quoting your PCN number. If you are not already a client, but are interested in learning more about the Working at Height regulations please call today on 08453 100 600.
