| Health and Safety — Employer’s Liability — Council home for elderly and mentally infirm — Carer’s injury due to slipping in urine on wet floor — Correct test to be applied to the construction of safety regulation in conjunction with Code of Practice — Whether employers failing to comply with regulatory requirement — Health and Safety at Work etc Act 1974, s 16; Workplace (Health, Safety and Welfare) Regulations 1992, reg 12
Ellis v Bristol City Council [2007] EWCA Civ 685
CA: (Smith, Lloyd and Wilson LJJ): 5 July 2007
The Code of Practice issued by the Health and Safety Commission was aimed to give guidance to the construction of health and safety regulations; a judge in construing the meaning of a regulation, should have regard to its meaning and purpose, any relevant judicial authority and also the Code of Practice when considering whether a place of work was unsafe for the employees working there.
The Court of Appeal so stated when allowing the appeal of the claimant, Susan Ellis, from the decision of Judge Stuart-Brown, sitting in the Bristol County, who on 10 November 2006 determined liability against her as a preliminary issue in her personal injury claim against the defendant, Bristol City Council, the operator of the home.
SMITH LJ said that the Code of Practice issued by the Health and Safety Commission pursuant to the Act and the Regulations advised that “Surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which did not become unduly slippery. A slip-resistant coating should be applied where necessary”. A Code of Practice which was designed to give practical guidance to employers as to how to comply with their duties under statutory regulations could be taken as providing some assistance as to interpretation. But such guidance always had to be treated with caution. It might be wrong. It did not carry the authority of a judicial decision. Here, in construing the meaning of the regulation, the judge should have considered its meaning and purpose, any relevant judicial authority and also the Code of Practice. Reg 12(1) and (2) required the court to consider suitability in the context of the circumstances of use, including temporary circumstances where they arose with sufficient frequency and regularity. The purpose was to promote the safety of workers. It could have been the legislative intention to restrict that requirement to permanent states of slipperiness. It could also have been intended to apply to states of slipperiness which occurred with sufficient frequency and regularity. If a smooth floor was frequently and regularly slippery, because of a substance lying on it, albeit temporarily, the surface might properly be said to be unsuitable if the slipperiness was such as to give rise to a health and safety risk to those employees using it. The Code of Practice supported that construction. It suggested that regularly and frequently occurring conditions should be taken into account when deciding whether a floor was suitable for its use within reg 12(1) and (2). Guidance from a Code of Practice suggested that, of the two possible constructions contended for, the one providing the greater protection for employees was correct. Reg 12(1) (as explained by way of example in reg 12(2)), was intended to cover permanent features of the floor and also regularly and frequently occurring hazardous conditions of which a slipping hazard was an obvious example.
LLOYD LJ gave concurring judgment and WILSON LJ agreed. |
