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Workplace regulations: policing the overlap between regulations and curtailing the impact of Hide v Steeplechase

Heeds v The Chief Constable of the Cleveland Police (1) Tascor Services Limited (2) High Court 18.4.18

The Chief Constable, and the company responsible for maintaining a police station, were not liable for injuries caused when a police officer trapped her thumb in an electronically operated door when exiting a custody suite. Lucy Williams examines the High Court's consideration of the interaction between the Workplace (Health, Safety and Welfare) Regulations 1992 (the "Workplace Regulations") and the Provision and Use of Work Equipment Regulations 1998 (the "Equipment Regulations").

Introduction

The Chief Constable, and the company responsible for maintaining a police station, were not liable for injuries caused when a police officer trapped her thumb in an electronically operated door when exiting a custody suite. Lucy Williams examines the High Court's consideration of the interaction between the Workplace (Health, Safety and Welfare) Regulations 1992 (the "Workplace Regulations") and the Provision and Use of Work Equipment Regulations 1998 (the "Equipment Regulations").

Facts

On 1 February 2011 the appellant, a police officer, attended Middlesbrough Police Station with colleagues to collect three prisoners. The appellant and her colleague entered the custody suite through a secure door which was unlocked for them. The door had a locking mechanism which was designed to be electronically operated. There was a latch within the mechanism which pivoted forward to allow the door to be opened when the locking mechanism was released. There was a small gap to the side of the latch and door frame on the custody side of the door.

The appellant and her colleague collected a prisoner and exited the custody suite through the same door to take the prisoner to a van. The appellant then returned to the custody suite to collect another prisoner. As she attempted to leave the custody suite for the second time she waited for the automatic locking mechanism to be operated. She was told by her colleague to "push it first". The appellant placed her left thumb in the gap between the side of the latch and the door frame and used her right hand to pull the door towards her. The appellant's thumb became trapped between the latch and the door frame.

The police station had been built as a private finance project, so that at the time of the accident the first respondent was responsible for the operations carried out within the police station while the second respondent had contractual obligations to maintain the building.

The trial

This was heard by HHJ Belcher. The appellant brought a claim against the respondents for negligence and breach of the Occupiers' Liability Act 1957, the Workplace Regulations and the Equipment Regulations. She claimed that the door was defective.

Both respondents denied that the door was defective and/or that it was possible to guard against the accident occurring. Breach of the Workplace Regulations was also denied. The second respondent denied that the door was work equipment under the Equipment Regulations.

At the trial both respondents relied on Mason v Satelcom Limited & East Potential Limited [2008] EWCA 494 which provides that the court should construe different sets of regulations so that they do not overlap, as far as possible. The judge agreed with that contention.

The appellant argued that the door was work equipment and thus the Equipment Regulations should apply. The respondents noted that Regulation 18 of the Workplace Regulations deals expressly with doors and on that basis they argued that the Workplace Regulations, rather than the Equipment Regulations, applied.

The judge found that whilst the door was a "specialist door serving a particular function within the undertaking, it was nevertheless a door." She concluded that the door was governed by the Workplace Regulations and it followed that the Equipment Regulations must be construed as excluding doors.

The judge accepted expert evidence that the door was not defective, the gap between the latch and the door frame was part of the design of the door, a guard would be impractical and there was no obvious risk of injury. Given that the door was not defective, it was suitable in accordance with regulation 18 (1) of the Workplace Regulations. The claim against the respondents was dismissed.

The judge considered obiter whether any breaches would have arisen had the Equipment Regulations applied. With regards to regulation 8 (1), as they were dealing with a door, and there was evidence that the appellant knew how to use the door, there was no requirement to provide information or instructions.

In respect of regulation 24(1) the respondents argued that there was no requirement to provide warnings as the risk of injury was so remote. However, the judge found that Hide v Steeplechase Company (Cheltenham) Ltd [2013] CA applied. Once the appellant had shown that she had been injured by contact with work equipment, the burden of proof rested on the respondents to show that the accident was due to unforeseeable circumstances beyond their control or that it was due to exceptional events which could not have been avoided despite the exercise of due care.

It was accepted that the accident occurred due to unforeseeable circumstances beyond the second respondent's control. However, the instruction by the appellant's colleague to "push it first" meant that the use of the door was within the first respondent's control. It was not unforeseeable that the appellant would seek to push the latch, rather than the door, and insert her thumb into the gap. The judge found that if the Equipment Regulations had applied the first respondent would have been liable.

The appeals

Appeals were started by both the appellant and the first respondent.

The appellant appealed on the basis that the judge had erred in finding that she was bound by Mason v Satelcom and instead should have found that the Work Equipment Regulations applied. The appellant also argued that the stricter test in Hide v Steeplechase applied to both sets of regulations. The first respondent cross-appealed and sought a finding that the second respondent would also be liable if the claimant succeeded with her claim.

By the time of the appeal hearing the first respondent had settled the claim against it and the court was asked to approve a consent order providing judgment for the appellant against the first respondent in the sum of £175,000. The hearing went ahead before a High Court judge in respect of the cross-appeal involving consideration of the issues between both respondents.

Mr Justice Baker was satisfied that the judge had been correct to find that different regulations should be interpreted so that, as far as possible, they do not overlap. The trial judge was correct to find that the Workplace Regulations, rather than the Equipment Regulations, applied in this case given that the Workplace Regulations deal expressly with doors.

In considering suitability under regulation 18(1) of the Workplace Regulations, foreseeability was relevant. The case of Marks and Spencer PLC v Palmer CA [2001] was followed which provides that there must be an assessment of all the circumstances including the seriousness of the potential injury and the extent of the alleged unsuitability.

Mr Justice Baker found that the trial judge was correct to find that there was no breach of regulation 18(1) by either respondent. Whilst the door had the potential to cause injury, an assessment had been carried out which considered the degree of risk including the fact that the door was used regularly and there had been no other reported injuries. Mr Justice Baker found that the judge had correctly found that the door was suitable.

Mr Justice Baker approved the request for judgment for the appellant against the first respondent but dismissed the first respondent's cross-appeal against the second respondent.

Comment

The accident in this case occurred prior to October 2013 and the introduction of the Enterprise and Regulatory Reform Act 2013. However, although the regulations considered in this case no longer confer any civil liability on defendants, breaches of the regulations are often still cited as evidence of negligence.

This case confirms the finding in Mason v Satelcom that the court should interpret regulations so that they do not overlap, as far as possible. Further, it confirms that the stricter test in Hide v Steeplechase which applies to the Equipment Regulations does not also extend to the Workplace Regulations.

The decision in this case will hopefully dissuade claimants from pleading a plethora of regulations to which defendants are then forced to respond. It is also a useful reminder that, when defending claims against employers, if insurers can successfully argue that the Workplace Regulations apply, then there should be no overlap with other regulations and specifically the Equipment Regulations (and the stricter test under Hide v Steeplechase) should not apply.

Contact

For further information please contact: Lucy Williams, Associate D +44(0)1616035197, lucy.williams@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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