PRACTICABLE
Stricter standard
Adsett v K & L Steel Founders and Engineers Ltd (1953)
A worked in a foundry. His job was to shovel various casting sands and compounds through a grate onto a conveyor belt below. A freely breathed in the resulting dust. He contracted pneumoconiosis. The employer had installed a dust extractor near the conveyor as soon as the idea was thought of. This was after the onset of A’s disease and was too late to save him from disablement. The issue in the case was the meaning of the word “practicable”. The ordinary dictionary definition was “possible to be accompanied with known means or resources” or “capable of being carried out in action”.
The High Court found that the word “practicable” on its own connoted a stricter standard than “reasonably practicable” and might mean that issues of cost should be eliminated. But no measure could be “practicable” if it was not within current knowledge and invention. The employer was not in breach of statutory duty.
On appeal to the Court of Appeal it was argued that the technology to install and extractor did exist but the employer had not thought of this particular application. The court rejected this argument, holding that to be “practicable” meant that a measure had to be known for its application by people in the industry, and especially by experts.
Moorcroft v Thomas Powles & Sons Ltd (1962)
M, a plasterer, was working on a flat roof. The roof had an opening of five feet by three feet. The opening had an upward projecting timber edge around its perimeter. M stepped backwards and fell through the opening. He was injured. The employer was prosecuted for breach of the relevant regulations which stated that all such openings should be made safe by the provision of guardrails. If compliance with the regulations was impracticable, then such measures as were “practicable” should be taken.
The High Court found that “practicable” imposes a stricter standard than “reasonably practicable”. “Practicable” excludes considerations of cost. In the present case, it would have been practicable to have put a board over the opening. The simplicity of this measure overrode the necessity for M to work quickly so as to cover the roof before the weather changed.
PROCESS
R v A1 Industrial Products plc (1987)
A1 employed three workers to demolish a large kiln in its factory. Two workers used respirators throughout the operation while the third used a respirator only after the sides of the kiln had been pushed in and a large cloud of asbestos dust was raised. Samples of the dust were found to contain such a concentration of asbestos as to be liable to cause danger to workers’ health. The company was found guilty of failing to provide approved respiratory equipment for use in a factory “process” in which asbestos dust was likely to escape. This decision was reversed by the Court of Appeal which ruled that the demolition of the kiln was not a “process”.
Nurse v Morganite Crucible Ltd (1989)
MC Ltd had demolished two large driers which contained asbestos. It had not provided respiratory equipment, did not store the broken parts in suitable receptacles and failed to keep that part of the factory where the parts were being broken up reasonably clean. The company was convicted by the magistrates’ court of a number of regulatory offences. Its appeal to the Crown Court was dismissed. Its subsequent appeal to the Divisional Court succeeded. The prosecution appealed to the House of Lords.
The Lords decided the following:
The appeal was allowed.
In R v A1 Industrial Products, the Court of Appeal had stated that it was wrong to extend the meaning of “process” beyond some manufacturing process or continuous and regular activity carried on as a normal part of the operation of a factory.
If that was correct, it would limit statutory protection. It was difficult to see how the statutory protection could be applied to normal building operations or to a work of engineering construction.
The word “process” should be used in the broader sense of including any activity of a more than minimal duration involving the use of asbestos.
Obviously, the single act of knocking a nail into an asbestos panel could not be considered a “process”. There had to be some degree of continuity and repetition of a series of acts in order to constitute a “process”.
On the facts of the A1 Industrial Products case and of the present case, the activity went on over a period of days involving materials containing asbestos, and was a “process”.
REASONABLY PRACTICABLE
Quantum of risk test
Edwards v National Coal Board (1949)
Mine owners were required by legislation to take all “reasonably practicable” steps to make sure that all travelling roads in mines were reasonably safe. E was killed when a section of road gave way. The section had no timber supports. About half of the whole length of the road was shored up. The NCB argued that the cost of shoring up all roads in every mine was prohibitive compared with the risk.
The Court of Appeal found that the question at issue was not the cost of shoring up all roads in very mine operated by the NCB. The issue was the cost of making safe the section of road which fell. Some roads were secure and showed no signs of falling. Others might already have fallen and had already been repaired. This particular section was already supported by time over half its length. The cost of making it completely safe was not great compared to the risk of injury and loss of life. The safety measures were entirely practicable and were in common use. It was also reasonable that they be taken when the balance was struck between the quantum of risk and inconvenience of the available safety measures.
Marshall v Gotham Co Ltd (1954)
M, an employee of G Co, was killed by a roof fall while working in the company’s gypsum mine. Before work began, the roof had been inspected by tapping it with a hammer. The roof fall had been caused by an unusual geological condition known as “slickenside” which was undetectable. M’s wife claimed compensation from the employer.
The House of Lords decided that the employer was not liable. M’s death had not been caused by any failure by the employer to take reasonable steps to secure the roof.
Failure to fit seat belts
Chandler v Gatwick Handling Ltd (1997)
C worked as a baggage handler at Gatwick Airport. His employer had not fitted seat belts to the lorries used by C and his colleagues. In January 1994 C was thrown out of a lorry when the door flew open. His shoulder was dislocated. He claimed compensation from the employer on the basis of negligence, in particular:
Failing to inspect or maintain the door
Failing to provide or require employees to use seat belts.
The Crown Court decided the following:
The maintenance system was reasonable
The door had not been defective and had not opened of its own volition
There was no legal requirement for the lorries to be fitted with seat belts
In the circumstances, it would be impracticable for the employer to fit and require the wearing of seat belts
It was not reasonable to expect the employer to fit seat belts or to issue instructions that seat belts should be worn at all times
The employer was not liable.
Slippery floor
Vinnyey v Star Paper Mills Ltd (1965)
V slipped while attempting to move a pallet while cleaning up a floor on which slippery liquid had accidentally been poured. He had been told how to do the work and had been provided with a forklift truck to move pallets and squeegee mops to clean up the mess.
The High Court found that the employer was not liable in negligence. Only basic instructions were needed for such a simple job. These had been given and there was no breach of duty.
Crushing injury
Jenkinson v Brook Motors Ltd (1985)
J was employed as a handyman in a factory. He was asked to make a pair of tongs. This involve riveting which needed the help of a workmate. J attempted to do the work himself, using a hydraulic press. He crushed his thumb and claimed compensation from his employer.
The Court of Appeal found the employer liable in negligence. It had failed to set up a safe system of work. Despite being an experienced worker, J was entitled to be supervised and to have the benefit of a properly thought out system of work. Damages were reduced by one-third for J’s contributory negligence.