Risk assessments (health and safety regulations)

The Schuman 2000: European law in the new Millennium series of seminars organised by the Society and the Faculty of Advocates recently concluded.  Over the last two years, seminars on the effect of Community legislation on different areas of Scots law, from intellectual property to employment law, gave practitioners an opportunity to share in the expertise of speakers working in the areas concerned. One area of law on which Community legislation has had a considerable impact is personal injury litigation and on 30 May Robert Milligan, Advocate considered the attitude of UK courts towards European law in the context of personal injury cases with particular reference to the use of risk assessments. We are pleased to be able to reproduce the text of that talk.

The Framework

If there is one aspect of the Six Pack Regulations which the courts appear to have struggled with, it is the role which risk assessments (or more often, the lack of risk assessments) play in establishing liability. This is, perhaps, surprising given that risk assessments feature so prominently in the Framework Directive 89/391/EEC and are required by inter alia the Workplace (Health, Safety and Welfare) Regulations 1992, the Provision and Use of Work Equipment Regulations 1992 and 1998, the Personal Protective Equipment at Work Regulations 1992, the Manual Handling Operations Regulations 1992, Health and Safety (Display Screen Equipment) Regulations 1992, the Noise at Work Regulations 1989 and the various COSHH Regulations.

The Six Pack Regulations are of course based on the Framework Directive 89/391/EEC. Article 6 of the Directive provides for a regime based on prevention rather than cure, and sets out a hierarchy of measures to be taken to protect the health and safety of workers. This hierarchy is, to some extent at least, reflected in the Regulations.

A typical example is found in Regulation 4 of the Manual Handling Operations Regulations 1992, which provides as follows:

“4. Each employer shall – so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured.

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured-

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them...

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable.

(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on-

(aa) the weight of each load...etc.”

The old fashioned approach

In an early English Court of Appeal judgement on Regulation 4, Hawkes v London Borough of Southwark (18th February 1998, unreported) Sir Christopher Staunton made the following statement:

“An assessment, including the questionnaire in Schedule 1 of the Regulations, would not have provided [the plaintiff] with any information which he did not have already. If the employers complied with their duty to reduce the risk of injury to the lowest level practicable, it was immaterial whether they made any assessment; and if they did not discharge the duty under (b)(ii), no amount of assessment would save them from liability. So at least in the circumstances of the present case, I would regard paragraph (b)(i) as merely an exhortation with no sanction attached, although it is no doubt a very wise precaution in many manual handling operations.”

The European approach

The difficulties which the courts have found in providing some content to the duty to carry out risk assessments are probably based in the fact that such assessments are a new concept which sit uncomfortably with the traditional structure of Health and Safety legislation, for example under the Factories Acts. As Lord Reed noted in English v North Lanarkshire Council 1999 SCLR 310 at page 319B-E:

“As a preliminary matter, however, I would observe that the 1992 Regulations are intended to give effect to Council Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work, which was itself made under the “Framework Directive”, 89/391/EEC. The interpretation of the Regulations has to be approached in that context, and therefore in the light of the general guidance given by the European Court of Justice (in such cases as Von Colson v Land Nordheim-Westfalen [1984] E.C.R. 1891) and by national courts, both in the United Kingdom (e.g. by the House of Lords in Litster v Forth Dry Dock & Engineering Co Ltd 1989 S.C.(H.L.) 96) and in other jurisdictions within the European Union, and also of course in the light of any specific guidance available from any of these sources as to the interpretation of these particular directives. An approach based on the Factories Acts is fundamentally misconceived. It is also potentially misleading, since the European directives on health and safety at work differ materially from the Factories Acts in important respects. For example, obligations under the Factories Acts tend to be qualified by reference to what is reasonably practicable, whereas the directives generally impose obligations which are expressed in unqualified terms; and the structure of the directives tends to follow a sequential analysis of any hazard and the ways in which it may cause an injury, so that some obligations may be secondary to others. Finally, it is important to bear in mind in a case such as the present (where the defender is a local authority, and hence an emanation of the State: Fratelli Costanzo SpA v Commune di Milano [1989] E.C.R. 1839) that directives can be relied upon directly against the State in the event that they are capable of direct effect.”

Recognition of the European context in which the Manual Handling Operations Regulations are set is to be found in the decision of the Second Division in Cullen v North Lanarkshire Council 1998 SC 451, per Lord Cullen at page 455G-456A:

“First, it appears to us that the Lord Ordinary, in saying that the statutory case added little to the common law case, overstated what required to be established in order to show a risk of injury which would satisfy regulation 4(1). As Lord Macfadyen said in Anderson v Lothian Health Board, 1996 Rep LR at page 89, in dealing with a case under the same regulation, “for there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability”. Secondly, if the Lord Ordinary was wrong in concluding that the pursuer’s case under the regulation was irrelevant, it would not necessarily have followed that a duty to make an assessment under subparagraph (b) (i) would have arisen. It would only have done so if the defenders had demonstrated that it was not reasonably practicable for them to avoid the need for the pursuer to undertake the manual handling operation. That does not appear to have been an issue before the Lord Ordinary and in any event he did not find it established that it was not reasonably practicable. Accordingly, it would have followed that the defenders were under a duty to avoid that need. Thirdly, if there had been a duty on the part of the defenders to make an assessment in accordance with subparagraph (b) (i) it could not be correct to say that the risk of injury was not such as to require the issue of handling of loads to be addressed, since ex hypothesi the duty to make the assessment was generated by the required risk.”

The compromise approach

Lord Macfadyen has suggested an answer which retains consistency with the traditional Factories Acts approach whilst placing greater emphasis on the role of risk assessments. In Hall v City of Edinburgh Council 1999 SLT 744:

“Counsel for the defenders’ examination and cross examination of witnesses on the question of reasonable practicability concentrated on the alternative methods of work mentioned in the pleadings. He did not seek to elicit from any of the witnesses evidence that there was no reasonably practicable method of loading the bag of cement onto the truck other than by manual handling in the way deployed by the pursuer and Darren Smith.

“In the result I am not satisfied that the defenders have discharged the onus incumbent on them of showing that it was not reasonably practicable to avoid the need for the pursuer to undertake a manual handling operation which involved a risk of injury. It may well be that there would have been economic or practical objections to equipping every pickup truck with an onboard hoist. It may well be that in organisational terms there would be very great difficulty in making a forklift truck available whenever a bag of cement required to be loaded onto a pickup. There may have been difficulties in manoeuvring the conveyor into the shed where the bags were kept. Some of the methods suggested might not have eliminated manual handling completely. None of the defenders’ witnesses, however, appeared to have applied his mind in a comprehensive way to the question of how the manual handling operation on which the pursuer was engaged might have been avoided. In the absence of proper consideration having been given to the matter, and in the absence of any evidence expressed in terms of the absence of any reasonably practicable alternative, I am not prepared to hold that the random objections to individual proposals expressed in the evidence properly support the conclusion that the avoidance of the need for the pursuer to undertake the operation in question was not reasonably practicable. I would be slow to conclude that human ingenuity could not devise a relatively simple and reasonably practicable mechanical aid to lift the bag from the pallet and convey it to the platform of the truck. The evidence led does not lead me to that conclusion.”

Put another way, where the defenders have not carried out a risk assessment, it will be very difficult for them to show that they have put their minds to the question of whether they had taken all reasonably practicable precautions.

A more radical interpretation of the compromise approach

The approach in Hall can be used to give even greater content to the duty to carry out risk assessments, by re-examining the concept of reasonable practicability. This qualification is, arguably, itself contrary to European Law and the Framework Directive. It is a concept peculiar to UK law, although heavily entrenched in the Factories Acts. Taking the Lord Reed approach and ignoring the previous case law in favour of looking to the Directive, it could be argued that the qualification is far more restricted in the European context. Certainly the Directive only allows for liability to be avoided where “occurrences are due to unusual or unforeseeable consequences beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care” (Art. 5(4)). This in turn has to be read in the context of the Preamble, which states that ìimprovements in workers’ health and safety at work should not be subordinated to purely economic considerations.”

Adopting the “purposive” approach to interpretation, it can be argued that the qualification of reasonable practicability should not be invoked where the only obstacle is a financial one. In other words, the basic cost/benefit analysis is no longer of use (see Munkman on Employer’s Liability 12th Edition at pp. 152-3).

What is required of a risk assessment

There has been surprisingly little jurisprudence on what amounts to a sufficient risk assessment, although this may be explained by the lack of emphasis placed on such assessments. For a more detailed discussion of what is required in practice, see The Law and Practice of Risk Assessment 1996 by Jeremy Stranks. Lord Nimmo Smith in Brown v East & Midlothian NHS Trust (unreported, 3/12/99) pointed out that risk assessments may take various forms:

“Assessment may be undertaken in two ways, the general and the particular. So far as general assessment is concerned, I am satisfied that the training course attended by the pursuer constituted a suitable and sufficient assessment of the manual handling operations to be undertaken by her. I have already discussed the question of training in the context of the common law case, and in my opinion the same considerations are applicable in the context of regulation 4. So far as particular assessment is concerned, this, in order to be suitable and sufficient, must be related to the manual handling operations which may require to be performed in caring for each individual patient. It was foreseeable that if JS were to walk without being escorted by two persons he might fall and cause injury, and it was accordingly necessary to make a particular assessment relating to him. Counsel for the pursuer submitted, with the support of evidence to this effect given by Mrs Hamilton, that the care plan for JS did not amount to an assessment within the meaning of the Regulations. I do not accept this. There is no need for the assessment to take any particular form so long as it is suitable and sufficient and those who may be affected by it are aware of it.”

Compare this with Article 6.2(d) and 6.3(b).

See also the Management of Health and Safety at Work Regulations 1999 and the relevant HSC Approved Code of Practice, both of which make plain that the purpose of the risk assessment is to guide the judgement of the employer as to the measures they ought to take to fulfil their statutory duties.

However, a word of caution should be sounded in respect of the extent of the duty to assess. In Koonjul v Thameslink Healthcare Services NHS Trust (Court of Appeal, The Times, 19th May 2000), Lord Justice Hale held that the duty to assess and the duty to take appropriate precautions in the light of that assessment must be placed in the general context of the plaintiff’s employment. Thus it was held that it was impracticable to carry out an assessment of every task carried out by an experienced care assistant at a small residential home for children, including the making of an unusually low bed.