Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 129
PD193/07	OPINION OF LORD MALCOLM in the cause DOROTHY ELIZABETH MUNRO Pursuer; against ABERDEEN CITY COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: K. Christine, Advocate; Thompsons

Defenders: R. Milligan, Advocate; Ledingham Chalmers

17 September 2009

[1] All the evidence in the proof in this action was agreed between the parties and set out in a joint minute of admissions. The one question in dispute is a short point of statutory interpretation.

[2] On 1 March 2004 the pursuer was employed by the defenders. She slipped on ice in a car park at Mastrick Land, Aberdeen. The car park was part of her workplace in terms of the Workplace (Health, Safety and Welfare) Regulations 1992 (the 1992 Regulations). Weather forecasts for the period were agreed, as were the defenders' winter maintenance plan and certain details of their gritting of the car park over the period. In the event that the pursuer succeeds in recovering damages from her employers, they are agreed at £150,000, which includes a quarter discount for contributory negligence.

The submissions

[3] Both parties agreed that the outcome of the case turns on the proper interpretation of regulation 5(1) of the 1992 Regulations, and in particular whether it applies to transient hazards such as ice on the surface of an otherwise structurally sound car park. So far as relevant, regulation 5(1) provides: "The workplace ... shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair." It was accepted by Mr Milligan on behalf of the defenders that if regulation 5(1) applies, the duty on the defenders is strict. The pursuer would be entitled to compensation without proving negligence, and there would be no reasonable practicability defence open to the defenders.

[4] Mr Milligan submitted that regulation 5(1) does not apply. The relevant regulation in the present case is regulation 12(3), which provides that:

"So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."

However the pursuer's case is not based upon that regulation but on breach of the absolute duty laid down in regulation 5(1). Were that case well founded, it would rob regulation 12(3) of content and deprive employers of the opportunity to avoid liability by proving that no reasonably practicable steps would have prevented the accident. He noted that breach of either regulation carries both civil and criminal liability.

[5] Mr Milligan submitted that a historical review of the cases and the relevant legislation reveals a well recognised distinction between structural defects in a workplace, which attract absolute liability, and transient hazards where the employer's duty is qualified. Reference was made to various cases including Millar v Galashiels Gas Company Limited 1949 SC(HL) 31 and Latimer v AEC Limited [1953] AC 643. Reference was made to Gallagher v Kleinwort Benson 2003 SCLR 384 in respect of European law, and in particular the Framework Directive (89/31) which led to, amongst others, the 1992 Regulations.

[6] Mr Milligan observed that some judges have followed the above distinction, while others have not. Cases in the former category include Lewis v Avidan [2005] EWCA Civ 670 and McEwan v Lothian Buses plc 2006 SCLR 592. Cases in the latter category include Gilmour v East Renfrewshire Council 2004 Rep Lr 40 and Love v North Lanarkshire Council 2007 [CSOH] 10. It was submitted that the decisions in the latter category had been influenced by a misreading of the Framework Directive which, if properly interpreted, does not require any additional protection for employees over and above that afforded by existing UK legislation. Rather it lays down minimum standards. Finally Mr Milligan conceded that there may be circumstances in which a transient hazard falls to be treated as if it were a permanent feature because it occurs regularly and frequently, however the present is not such a case.

[7] Mr Christine for the pursuer confirmed that the action is presented solely on the basis of a breach of regulation 5(1). The cases pled on record under the common law, the Occupier's Liability (Scotland) Act 1960 and regulation 12(1) were not maintained. The ice presented an obvious and real risk to users of the car park. The pursuer slipped on the ice and as a result suffered injury. The defenders accept that the car park was part of the pursuer's place of work. According to Mr Christine it must follow that the defenders were in breach of regulation 5(1) in that they had not maintained the car park in an efficient state. Reference was made to the cases mentioned above and to others, including Stark v The Post Office [2000] ICR 1013 (CA), McLaughlin v East and Midlothian NHS Trust 2002 SLT 387 and Butler v Grampian University Hospital NHS Trust 2002 SLT 985.

[8] Mr Christine recognised that there is an issue concerning an overlap or inconsistency as between regulations 5(1) and 12(3), but he relied on those decisions which point to regulation 5(1) as imposing an absolute duty to secure a safe place of work at all times. He submitted that the decisions against him placed too narrow an interpretation on the term "maintained". Counsel noted the reference to cleaning in regulation 5(1). This might be interpreted as including steps to guard against short lived conditions, such as dust or dirt. I was invited to treat the term "maintained" in regulation 5(1) as synonymous with "secured". The presence of ice on the surface of the car park meant that the defenders had not secured that it was in an efficient state from the point of view of health and safety, and as a result the pursuer is entitled to succeed. If the result is that regulation 12(3) is robbed of any meaning or content, then that is no reason for narrowing the scope of regulation 5(1), which should be interpreted and applied according to the ordinary meaning of the words used.

Discussion of the case law

[9] In Galashiels Gas Company the House of Lords decided that the term "properly maintained" in section 22 of the Factories Act 1937 denoted the continuance of a state of working efficiency. The impossibility of anticipating the failure of the lift in question and the fact that the defenders had taken all reasonable steps to provide a suitable lift provided no defence. The policy of the legislature was "to relieve the injured workmen from the burden of proving that there was some particular step which the employers could have taken and did not take" (Lord Morton of Henryton at 283).

[10] In Latimer v AEC Limited [1953] AC 643 the House of Lords considered a case where a workman slipped on an oily residue left on the factory floor after a flood caused by an unusually heavy rainstorm. Sawdust had been spread but some areas were left untreated. It was held that there was no breach of section 25 of the 1937 Act, which required employers to see that the floors were "of sound construction and properly maintained". The floor was structurally sound, and their Lordships took the view that it would be excessive if all and any temporary problems, such as a piece of orange peel or the like, rendered the employers in breach of the statutory provision. Thus it became a question of the degree of temporary inefficiency as to whether the state of the floor did or did not amount to a breach of duty. Lord Porter expressed the view that the provision was not meant to apply to "a transient and exceptional condition". The Galashiels case was different in that the lift itself was out of order. No "temporary superincumbent danger" had been added to it. Further, given the potential criminal liability, "employers are not lightly to be made criminals unless a clear direction of an Act of Parliament has that effect". Lord Reid observed:

"The requirement of the definition is not that the floor shall be in an efficient state; it is that the floor shall be maintained in an efficient state. 'Maintained' is the dominant word throughout and that throws one back to what is meant by maintaining a floor. I see little difference between maintaining a floor 'properly', as required by section 25, and maintaining it 'in an efficient state' as required by the definition. I have already said that I do not think that maintaining a floor includes keeping dangerous things away from it."

This approach was followed by the First Division of the Inner House in Bruce v Ben Odeco Limited 1996 SC389, a case brought under regulation 5(1) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 which provided that: "All parts of every offshore installation and its equipment shall be so maintained as to ensure the safety of the installation and the safety and health of the persons thereon." A mechanic on a drilling rig slipped because of grease on the floor. The court decided that this was a transient condition which was not the result of a lack of maintenance of the structure of the floor itself. At page 394 Lord Clyde said:

"Within the context of regulation 5 it seems to me that the obligation of maintenance does not extend to the preventing of danger caused by material which has at some unknown time been deposited on a floor and which does not form part of the floor. In my view that risk is adequately covered by regulation 14, on which the pursuer also founds and the relevance of which is not in dispute. It is accepted that the obligation under regulation 5 for the purpose of a civil claim is absolute and it seems to me unlikely that the intention could have been that an absolute civil liability should arise as soon as anything landed on a floor or walkway of the installation causing the surface to be slippery and dangerous. Regulation 14 on the other hand is qualified by considerations of reasonable practicability and provides a sufficient protection for those on the installation against risks of the general kind alleged in the present case. Furthermore even although the criminal liability is not absolute by reason of regulation 34(4), the consideration that a breach of regulation 5 can have penal consequences provides further ground for limiting its scope."

Lord Clyde's analysis provides powerful support for the defenders' submissions in the present case. Reference can also be made to the similar remarks of Lord President Hope at page 392. His Lordship drew attention to Parliament's intention, as reflected in section 28 of the 1961 Act, of distinguishing between, on the one hand, an absolute obligation to maintain the floors and passageways of the workplace, and, on the other hand, a duty to take all reasonably practicable steps to keep them free of obstructions and slippery substances.

[11] The Court of Appeal revisited this general area of the law in Stark v The Post Office, though this time with the added dimension of the Work Equipment Directive (89/655). The case concerned a postman who suffered serious injuries when the front brake stirrup of the bicycle supplied to him broke and he was thrown over the handlebars. The judge at first instance held that there had been no breach of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 which provided that "every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair". In the course of the appeal counsel for the employers relied upon the terms of European law. The Court of Appeal noted that while the Framework Directive provides minimum standards, it recognises that any existing higher standards should be maintained, thus the absolute nature of the obligation as previously determined in Galashiels Gas Company Limited stood unaffected. The appeal against the trial judge's decision was upheld.

[12] In Green v Yorkshire Traction Company Limited [2001] EWCA Civ 1925 the Court of Appeal considered the same regulation. Mr Green was a bus driver who slipped on the step of his bus. It had been raining and passengers had deposited rainwater on the step. Counsel for Mr Green referred to article 5(1) of the Framework Directive which states: "The employer shall have a duty to ensure the safety and health of workers in every aspect related to work." It was submitted that because of the wetness the step had not been maintained in an efficient condition within the meaning of the regulation. After consideration of the relevant terms of the Treaty of Rome and of the Framework and Work Equipment Directives, it was again decided that the duties under European law are not in any sense absolute obligations. It is sufficient if Parliament respects the specified minimum requirements. On the merits of the case, following the general approach set out in Latimer Lord Justice Kay said at paragraph 33:

"I find it impossible to conclude that a bus which is going about its ordinary everyday work, picking up passengers and transporting them in weather which was not in any way out of the ordinary, can be described as not being maintained in an efficient state just because, on a rainy day, some water has got onto the step, either from the wet clothing of the passengers or from their feet. To hold otherwise would be to impose the sort of absolute duty for which Mr Copnall contended but which I reject."

[13] The main case prayed in aid of the pursuer's case was Gilmour v East Renfrewshire Council. A teacher slipped on a chipped potato while walking down a ramp leading from a school canteen. She relied on both regulation 5 and regulation 12 of the Workplace Regulations 1992. The temporary judge, J Gordon Reid QC, concluded that given the nature of the flooring and the slope of the ramp there was a real risk of slipping, which was increased by the presence of the chip. The defenders were in breach of an absolute duty under regulation 5(1). It was held that regulation 12(3) had also been infringed in that the chip presented a real risk of injury, and it would have been reasonably practicable for the defenders to have kept the surface free of such dangerous substances. The temporary judge was not concerned by the overlap between the two regulations, noting that it is "common in personal injury litigation for a set of circumstances to fall within the scope of several parts of the same regulations or even within the scope of several different sets of regulations." Mr Reid also placed emphasis on the European law dimension, commenting that "the implementation of the Workplace Directive emphasises that the whole climate of health and safety has changed significantly in recent years", and thus previous decisions under the Factories Acts may no longer apply. The temporary judge did observe that regulation 5(1) would have been breached even if the pursuer did not step on a chip because the nature of the flooring and the slope of the ramp independently posed a safety risk. Nonetheless his overall approach does appear to acknowledge the presence of the chip as being relevant to the issue of whether there was a breach of regulation 5(1), and in that sense it supports the pursuer's submissions in the present case.

[14] As part of his reasoning in respect of European law Mr Reid referred to the decision of Lord Reed in Gallagher. However I note that at paragraphs 43 and 44 of that opinion his Lordship qualified previous observations made by him in English v North Lanarkshire Council 1999 SCLR 310, and in particular commented: "Where the new regulations adopt the language used in the older regulations under the Factories Acts, or a fortiori where the new regulations refer expressly to provisions of the Factories Acts, authorities on the interpretation of the Factories Acts may continue to be relevant. The observation made in English v North Lanarkshire Council was not intended to suggest the contrary." Further it would appear that in Gilmour the court was not referred to the Court of Appeal decisions in Stark and Green.

[15] In Lewis v Avidan the Court of Appeal again followed the reasoning in Latimer, holding that the mere fact of an entirely unexpected and unpredictable flood does not mean that a floor is not maintained in an efficient state. Lord Justice May added, "There would, of course, be a breach of regulation 12(3) if the employer did not have the flood mopped up properly; but that is not the present case." In two recent cases in the Outer House Lord Brodie has expressed obiter views that regulation 5(1) is not limited to structural integrity but can extend to, for example, the presence of water on a floor. Again emphasis was placed on the underlying European Directive. However counsel for the defenders invited me to prefer contrary reasoning expressed by Lord Emslie in McEwan v Lothian Buses. Mr McEwan was a probationary fitter employed to maintain and repair buses. He slipped on the surface of a board which was wet and slippery because of a spillage of coolant fluid. The Lord Ordinary held that the defenders had failed to prove that it would have been reasonably practicable for them to prevent the breach of regulation 12(3). While it was not necessary for him to decide the other statutory cases, he said the following in respect of regulation 5(1):

"As regards regulation 5(1) I am not persuaded that it was ever intended to impose an absolute duty in exactly the same circumstances as are covered by the qualifying duty under regulation 12(3). At the time when the precursor of regulation 12(3) appeared as the second part of section 28(1) of the Factories Act 1961, the absolute obligation contained in the first part of that section was held not to cover spillages and other transient conditions. Where these matters are now expressly covered under regulation 12(3), it seems to me that, on a proper construction, regulation 5(1) should be confined in scope to the permanent state of the workplace, or at least to longer-term situations. In this regard I find myself in agreement with the approach recently taken by the Court of Appeal in Lewis v Avidan Limited.

It is of course true that, as Lord Brodie observed in Cochrane v Gaughan, the words in parentheses; '... (including cleaned as appropriate)' - which did not appear in previous legislation - bear to extend the scope of the duty under regulation 5 to some degree. In my view, however, sufficient content can be given to these words by construing the regulation as extending, at most, to such non-constructional states as would be removed by appropriate cleaning (my emphasis), and thus still as excluding momentary or transient spillages which no appropriate cleaning regime could practicably have dealt with in the time available. The element of appropriateness must, in other words, be given content as well as the reference to cleaning which does not stand alone. Approaching the matter in this way would have the merit of maintaining the logical distinction, which applied under earlier legislation, between absolute duties applying to the permanent or long-term state of the workplace and means of access, and duties qualified by reasonable practicability applying to short-lived transient conditions. It would also have the advantage of preserving the settled meaning which has, for decades, been accorded to statutory duties expressed in terms of 'maintaining premises in an efficient state'.

For the avoidance of doubt, I should make it clear that I am not suggesting that any relevant distinction should be respected merely because it was established under earlier legislation. Plainly, such an approach would be untenable following repeal of that legislation and implementation of the Workplace Directive, although I note in passing that the latter does not clearly impose on employers any absolute duty to secure the safety of either new or existing workplaces under all possible conditions. The point is rather that, in the 1992 Regulations as in earlier legislation, qualified and unqualified duties have been enacted side by side, and in that context it is surely necessary to construe the unqualified duties, where possible, in such a way as to preserve some semblance of content and application for the qualified. If the absolute duty prescribed under regulation 5 were to be given the wholly unrestricted meaning for which the pursuer contended, then in my view many of the other regulations would become otiose, and the qualification of reasonable practicability in particular defined situations (for example under regulation 12(3)) might as well not be there at all."

[16] I have quoted these observations on regulation 5(1) in full because I am in complete agreement with them. I am aware that Lord Emslie's reasoning was rejected in Love v North Lanarkshire Council, Lord McEwan noting that his comments were necessarily obiter. Lord McEwan preferred the view that regulation 5(1) is designed "to secure the outcome of a continuing state of efficiency". He suggested that Lord Reed's decision in English v North Lanarkshire Council "is now the accepted authority in Scotland for the need to give a wide interpretation to the regulations properly to implement the Directive". However there is no indication that his attention was directed to Lord Reed's subsequent cautionary words about English in his later decision, all as quoted above. As for Lewis v Avidan, Lord McEwan confined himself to the comment that he found the reasoning unattractive and did not propose to follow it.

Decision

[17] There has been a divergence of view in the Outer House of the Court of Session as to the proper approach to regulation 5(1) of the 1992 Regulations in cases involving non-structural dangers. Some of the decisions favouring strict liability have been influenced by the impression, I would respectfully suggest the erroneous impression, that the Framework Directive requires, or at least encourages a preference for absolute duties. That view has been contradicted south of the border by the Court of Appeal, though in defence of the judges concerned, it would appear that those decisions were not cited to them. Further, while Lord Reed's decision in English may well have suggested that older decisions such as Latimer require to be revisited in the light of European developments, again their Lordships would not appear to have been directed to his more qualified remarks in Gallagher. The result is that I am in agreement with Lord Emslie's comment in McEwan that the Workplace Directive "does not clearly impose on employers any absolute duty to secure the safety of either new or existing workplaces under all possible conditions". Any doubt on that point has been dispelled by the recent decision in EC Commission v UK [2007] ICR 1393, in which the European Court of Justice held that article 5(1) of the Framework Directive did not require the imposition of no-fault liability on employers; and that the Commission had not shown how the reasonable practicability defence in section 2(1) of the Health and Safety at Work etc. Act 1974 offended against the requirements of the Directive.

[18] I must simply approach the 1992 Regulations unencumbered by any presumption that European law requires a particular interpretation. Mr Christine accepted that his construction deprives the defenders of the reasonable practicability defence which regulation 12(3) would otherwise provide for accidents of the kind suffered by the pursuer. In this regard I again refer to Lord Emslie's observations in McEwan when he said:

"It is surely necessary to construe the unqualified duties, when possible, in such a way as to preserve some semblance of content and application for the qualified. If the absolute duty prescribed under regulation 5 were to be given the wholly unrestricted meaning for which the pursuer contended, then in my view many of the other regulations would become otiose, and the qualification of reasonable practicability in particular defined situations (for example under regulation 12(3)) might as well not be there at all."

Freed from any superimposing presumptions based on European law, I find this reasoning compelling. In addition it reflects the approach of the First Division in Bruce v Ben Odeco. If the pursuer has a statutory claim in respect of her injury, in my view it lies under regulation 12(3), which would afford the defenders the opportunity to prove that no reasonably practicable steps on their part would have prevented it. In other words, regulations 5(1) and 12(3) of the 1992 Regulations simply reflect the long established dichotomy between absolute duties for long-term dangers and qualified duties for short-lived transient conditions, all as recognised in authoritative cases under the earlier legislation. It can be assumed that Parliament continued the potential for criminal liability in respect of breach of provisions such as regulation 12(3) on the basis of that distinction.

[19] Some of the decisions relied on by Mr Christie in turn relied on certain observations of Lord Macfadyen in Butler v Grampian University Hospital NHS Trust, and in particular his comment that regulation 5(1) seeks to secure "a continuing state of efficiency". However that case did not concern a transient condition such as an obstruction or a slippery substance on a floor. A nurse was injured when attempting to assist a wheelchair bound patient because a toilet cubicle was too small. Lord Macfadyen rejected a submission that the term "maintained" in the regulation should be construed in the sense of maintenance works, thus excluding any remedy where "the lack of efficiency is inherent in the workplace as provided". That is a very different issue from the present case. My approach to regulation 5(1) is not at odds with Lord Macfadyen's decision in Butler, which has no bearing on the interplay between regulations 5(1) and 12(3).

[20] I recognise that there are cases which suggest that a non-structural danger might be such a regular and frequent occurrence that the absolute duty under regulation 5(1) is applicable. The circumstances in the case of Love might be analysed in that way. However there was no suggestion that the present case falls into that category. In cases which do, any supposed difficulty caused by an overlap between the two regulations may be more theoretical than real, since it would seem doubtful that the employer could ever satisfy the onus of proving the defence available under regulation 12(3).

[21] The pursuer's case was perilled upon my accepting Mr Christine's submission that regulation 5(1) applies. Given that I have rejected that submission in favour of the approach outlined by Mr Milligan, it follows that her case fails. I will therefore grant decree of absolvitor and continue the cause on the question of expenses.