IAIN HENRY SKINNER v. SCOTTISH AMBULANCE SERVICE
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Marnoch Lord Macfadyen Sir David Edward | A324/03 OPINION OF LORD MARNOCH in RECLAIMING MOTION in the cause IAIN HENRY SKINNER Pursuer and Reclaimer; against SCOTTISH AMBULANCE SERVICE Defenders and Respondents: _______ |
Act: Dorrian, Q.C., Cherry; Thompsons (Pursuer and Reclaimer)
Alt: Peoples, Q.C., Stuart; R.F. Macdonald (Defenders and Respondents)
8 July 2004
[1]This is a reclaiming motion from an interlocutor pronounced by the Temporary Judge whereby he declined to exclude from probation the defenders' averments anent the relative costs of two different types of canula, the position being that the pursuer and reclaimer suffered a "needlestick" injury to his left thumb which, he avers, would have been avoided if what is said to have been the safer and more expensive type had been employed. Although, however, the pursuer does aver that the particular accident which befell him would have been avoided, his more general averment regarding the use of what is referred to as the "alternative type of canula" is that it would "greatly reduce the risk of injury of the type which happened to the pursuer". The defenders, for their part, aver that any alternative would still present a risk to employees and would lead to "substantially higher costs".
[2]It is agreed that the averments in question relate only to the pursuer's statutory case which is based on Regulation 4 of the Provision and Use of Work Equipment Regulations 1998. That Regulation provides, inter alia, that:
"(1)Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
(2)In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3)Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.
(4)In this regulation 'suitable' ... means suitable in any respect which it is reasonably foreseeable will affect the health or safety or any person."
[3]While regarding the point as a narrow one the Temporary Judge in the end decided that under the Regulation there was what he described as a "margin of appreciation" not only with regard to risks, but also with regard to the suitability of equipment and that even if one piece of equipment were safer than another, that might not make the other "unsuitable" having regard to all the circumstances, including the possible significance of cost.
[4]The argument for the reclaimer was that in so viewing Regulation 4 the Temporary Judge misdirected himself and that, on a proper construction of Regulation 4 and, in particular, Regulation 4(4)(a), it imposed on employers what was in effect an absolute requirement that work equipment should eliminate any reasonably foreseeable risk to the health or safety of an employee. A piece of work equipment either came up to that standard or it did not, but the question of cost was, in any event, irrelevant.
[5]The argument for the respondents was that there was nothing in Regulation 4 or, indeed, elsewhere in the Regulations or Council Directives lying behind them which justified the construction contended for by the reclaimers; that that construction, if intended, could have been much more simply expressed; that the word "suitable" was used elsewhere in the Regulations (e.g. in Regulation 25) with a clearly different meaning; that the court should, in any event, shrink from a construction which would lead to automatic breach in perhaps numerous situations where the use of work equipment carried a foreseeable but unavoidable risk of injury; and that the word "suitable" should simply be given its ordinary broad meaning such as would allow in cost as being a possibly relevant factor where, as in the present case, a choice had to be made between two or more items of equipment, both or all of which carried some foreseeable but unavoidable risk of injury. "Suitability" was in the end a "jury question" to be decided in each case in a "common-sense" way.
[6]From the foregoing narrative it will be seen that the question of relative costs is in a sense secondary to a more fundamental divide between the parties, namely whether, on a proper construction, Regulation 4 does or does not impose on an employer the sort of unqualified obligation (albeit limited by reasonable foresight) contended for on behalf of the reclaimer. If it does, then the question of relative costs becomes irrelevant because the defenders, in effect, concede a breach of the Regulation as so interpreted. If it does not, then, subject to a fall-back argument only lightly touched upon by senior counsel for the reclaimers, the defenders' contentions must prevail.
[7]The fall-back argument was that, even if the reclaimer were wrong in his contention regarding the unqualified nature of the obligation under Regulation 4, nonetheless there was nothing in the terms of that Regulation which warranted cost being treated as a relevant consideration when assessing the issue of suitability.
[8]In the course of the debate reference was made by both parties to the terms of the underlying Council Directives, viz. 89/391/EEC, The Framework Directive, and the "daughter" Work Equipment Directive 89/655/EEC as amended by 95/63/EEC. As regards the Framework Directive, Miss Dorrian, Q.C., for the reclaimer, drew attention to Article 1(2) which speaks of the "elimination of risk and accident factors", an objective which is, however, in my view somewhat modified by Article 6(2) which speaks of "evaluating the risks which cannot be avoided". Mr. Peoples, Q.C., for the respondent, for his part drew attention to that section of the preamble which narrated that the impairment of workers' safety should not be subordinated to "purely economic considerations" and also to that section (echoed in the preamble to the "daughter" Directive) which narrated that directives must avoid imposing administrative, financial and legal constraints which would hold back the creation and development of small and medium-sized undertakings. More particularly, both parties sought to rely on Article 3 of the "daughter" Directive which states as follows:
"General obligations
1.The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.
In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of workers, and/or any additional hazards posed by the use of work equipment in question.
2.Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."
Both parties also sought to draw comfort from Regulations 11 and 12 of the 1998 Regulations where, in contradistinction to Regulation 4, the concepts of "practicability" and "reasonable practicability" are introduced.
[9]Finally, counsel for the reclaimer understandably relied on a passage in Munkman, Employers' Liability 13th ed. at para. 13.11 which, it is fair to say, generally favours the construction of Regulation 4 for which they contended. However, the passage in question was written without the benefit of the argument and analysis which this court has enjoyed and without noticing, it seems, that the term "work equipment" is defined by Regulation 2(1) as including, but not as being co-extensive with, the term "machinery".
[10]In the result, I confess that I, for my part, in common with the Temporary Judge at first instance, find the point at issue by no means easy to resolve. So far as Regulation 4 is concerned I have difficulty in even understanding the phraseology employed by the draftsman, let alone interpreting its true meaning. However, for the reasons expressed by Sir David Edward I am in the end persuaded that, whatever else, Regulation 4 cannot be given the broad construction for which the respondents contended and that any narrower construction must exclude cost as a relevant factor.
[11]In these circumstances my motion to your Lordships is to recall the interlocutor of the Temporary Judge dated 12 March 2004, to sustain the pursuer's third plea in law to the effect of excluding from probation the pursuer's averments at p. 12B-D and p. 19B of the Reclaiming Print and quoad ultra to allow to the pursuer a proof before answer. So far as the statutory case is concerned, that will now be largely, if not wholly, concerned with issues of causation.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Marnoch Lord Macfadyen Sir David Edward | A324/03 OPINION OF LORD MACFADYEN in RECLAIMING MOTION in the cause IAIN HENRY SKINNER Pursuer and Reclaimer; against SCOTTISH AMBULANCE SERVICE Defenders and Respondents: _______ |
Act: Dorrian, Q.C., Cherry; Thompsons (Pursuer and Reclaimer)
Alt: Peoples, Q.C., Stuart; R.F. Macdonald (Defenders and Respondents)
8 July 2004
[12]I agree with your Lordships that the appropriate course to take is to allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 12 March 2004, sustain the pursuer's third plea-in-law, exclude from probation the defenders' averments about cost at pages 12B-D and 19B of the Reclaiming Print, and quoad ultra allow the parties a proof before answer of their respective averments.
[13]I am in agreement with the reasons set out by Sir David Edward for reaching that conclusion. There is nothing that I wish to add.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Marnoch Lord Macfadyen Sir David Edward | A324/03 OPINION OF TEMPORARY JUDGE SIR DAVID EDWARD in RECLAIMING MOTION in the cause IAIN HENRY SKINNER Pursuer and Reclaimer; against SCOTTISH AMBULANCE SERVICE Defenders and Respondents: _______ |
Act: Dorrian, Q.C., Cherry; Thompsons (Pursuer and Reclaimer)
Alt: Peoples, Q.C., Stuart; R.F. Macdonald (Defenders and Respondents)
8 July 2004
[14]This reclaiming motion raises one narrow but potentially important point. The question is whether, in defence to a claim based on failure to provide suitable work equipment in terms of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 ("the Regulations"), the employer can plead that any alternative equipment to that provided would have led to substantially higher costs.
[15]Regulation 4 provides as follows:
"(1)Every employer shall ensure that work equipment is so constructed or
adapted as to be suitable for the purpose for which it is used or provided.
(2)In selecting work equipment, every employer shall have regard to the
working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3)Every employer shall ensure that work equipment is used only for
operations for which, and under conditions for which, it is suitable.
(4)In this regulation 'suitable' ... means suitable in any respect which it is
reasonably foreseeable will affect the health or safety of any person."
[16]The pursuer was employed as an ambulance technician and was part of a crew called out to attend a drug overdose victim. He was asked to apply pressure to a vein of the victim while another member of the crew inserted a canula with an introducer needle. As the needle was withdrawn, it jabbed the pursuer's thumb, drawing blood (a "needlestick injury"). There was a risk that the pursuer would contract HIV. Fortunately he did not do so, but he had to undergo tests and other treatment over a period of months and he claims damages for the distress and other consequences of having to do so.
[17]He bases his claim in part on failure by the defenders to comply with Regulation 4 of the Regulations. He says that the type of needle provided was not "suitable" within the meaning of Regulation 4. The risk of needlestick injury was well recognised and the defenders could and should have provided a different model of canula which was available. This incorporates a plastic covering for the needle as it is withdrawn so that no part of the needle is exposed on withdrawal.
[18]The defenders offer a variety of reasons why they did not adopt this type of needle, amongst them the following:
"...[A] needle and syringe, of the type used by the defenders at the material time, cost approximately five pence each. A syringe and 'safety' needle of the type desiderated by the pursuer, whereby the needle withdraws completely into a plastic covering, would cost approximately 26.45 pence each. To switch to such needles would therefore lead to a substantial increase in the defenders' costs ...
... Any alternative would still present a risk to employees. Any alternative would lead to substantially higher costs...."
The pursuer contends that the four sentences in italics are irrelevant and should be excluded from proof on the ground that Regulation 4 is couched in unqualified ("absolute") terms and does not permit any consideration of cost to be taken into account. The point is taken as one of principle, no point being taken as to the bareness of the averments of cost - e.g. the absence of any indication as to the number of canulae and needles used in the course of a year.
[19]The defenders contend for a broad interpretation of the word "suitable" which would allow account to be taken of all the facts and circumstances including cost. Senior counsel also adopted a fall-back submission that, where it is impossible wholly to exclude the risk of injury, the employer is entitled to take account of relative cost in choosing between the various types of equipment available.
[20]To support their respective interpretations of Regulation 4, both parties referred to the terms of the EC Directives which the Regulations are designed to implement. These are, first, the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (Council Directive 89/391/EEC) and, second, the Work Equipment Directive which is an "individual directive" enacted to give effect to the Framework Directive within a specific area (Council Directive 89/655/EEC, as amended by 95/63/EC).
[21]Both Directives, when enacted, were based on Article 118a of the EEC Treaty which provided for directives setting minimum requirements as to the health and safety of workers. Article 118a(3) [now Article 137(4) of the EC Treaty] provided that:
"The provisions adopted pursuant to this Article shall not prevent any Member State from maintaining or introducing more stringent measures for the protection of working conditions compatible with this Treaty."
National legislation must, as far as possible, be construed in such a way that the protection afforded does not fall below the standard required by the Directive it seeks to implement (Case 106/89, Marleasing, [1990] ECR I-435). But where, as here, the Directive sets only minimum standards, it may not be appropriate, where the national legislation sets a higher standard, to construe it by reference to a text that sets a lower standard. Nevertheless, where the meaning of the national legislation is unclear or uncertain, reference to the Directive may help to clarify the problem, particularly since the purpose of the Directive is to lay down "principles" (see Article 1(2) of the Framework Directive).
[22]The Work Equipment Directive (hereafter "the Directive") lays down "minimum safety and health requirements for the use of work equipment by workers at work" (Article 1(1)).
[23]Article 3 provides, first, that the employer is to ensure that the work equipment made available to workers is (a) suitable for the work to be carried out or properly adapted for that purpose and (b) may be used by workers without impairment to their safety and health (Article 3(1) first paragraph). Second, in selecting equipment the employer is to pay attention to the circumstances in which it will be used and to any hazards to safety and health (Article 3(1) second paragraph). Third, where it is not possible fully to ensure that work equipment can be used without risk to safety and health, the employer must take appropriate measures to minimise the risks (Article 3(2)).
[24]Thus the Directive distinguishes between the suitability of the equipment for the work to be carried out and the question whether it can be used without impairment to safety and health. A given item of equipment might fulfil one of these criteria but not the other. To comply, it must fulfil both.
[25]Regulation 4 of the Regulations blurs this distinction. The word "suitable" is there used in relation both to "the purpose for which [the equipment] is used or provided" (Regulation 4(1)) and to "any respect which it is reasonably foreseeable will affect the health or safety of any person" (Regulation 4(4)(a)).
[26]The Regulations contain no general provision comparable to Article 3(2) of the Directive to deal with a case of impossibility. They do, however, contain very detailed provisions to deal with some situations of potential impossibility. For example, Regulation 11, deals with dangerous parts of machinery, and Regulations 25 et seq. deal with mobile equipment, especially fork lift trucks.
[27]Regulation 11 recognises that impregnable fencing of dangerous parts of machinery may make it impossible to use the machine. It does so by introducing a test of practicability, so differing from the earlier "absolute" terms of the Factories Acts considered in Summers v Frost, [1955] AC 740, ("Every dangerous part of any machinery ... shall be securely fenced"). In relation to the overturning of fork lift trucks, Regulation 27 introduces a test of reasonable practicability.
[28]The legal significance of these tests has been established by judicial precedent going back many decades. The test of reasonable practicability permits consideration of gross disproportion between cost and risk (Edwards v NCB, [1949] 1 KB 704, per Asquith LJ at p. 712, endorsed by Lord Reid in Marshall v Gotham, [1954] AC 360 at p. 373). The test of practicability does not. A fortiori, where the employer's obligation is couched in unqualified terms, no consideration of cost is admissible.
[29]In Summers v Frost, Viscount Simonds observed:
"First, it appears to be an illegitimate method of interpretation of a statute, whose dominant purpose is to protect the workman, to introduce by implication words of which the effect must be to reduce that protection.
Second, where it has been thought desirable to introduce such qualifying words, the legislature has found no difficulty in doing so. ...
Third, it was decided as long ago as 1919 ... that, if the result of a machine being securely fenced was that it would not remain commercially practicable or mechanically possible, that did not affect the obligation: the statute would in effect prohibit its use. ..."
[30]The obligation imposed by Regulation 4(1) is couched in unqualified terms. If the customary canons of interpretation enunciated by Viscount Simonds are to be adopted, its terms are such as to exclude considerations that would be legitimate where the obligation is qualified by reference to the practicability or reasonable practicability of compliance. Use of the expression "Every employer shall ensure..." (the opening words of Regulation 4(1)) will normally be indicative of the intention to impose an absolute duty.
[31]This seems, however, to lead to a logical difficulty in construing the Regulations as a whole. How can the qualified obligations imposed by subsequent Regulations, such as Regulations 11 and 27 mentioned above, be compatible with the unqualified general obligation imposed by Reg. 4? Paradoxically, the employer will be protected against unqualified liability in respect of equipment for which specific provisions are made but not in the potentially far greater number of other cases to which Regulation 4 applies. Article 3(2) of the Directive deals generally with the problem of impossibility by imposing an obligation to minimise the risk. The Regulations do not.
[32]It may be necessary in another case to determine whether this difficulty is inherent in the Regulations or whether it can be overcome. It may be significant that Regulation 4(2) enjoins the employer, in selecting equipment, to "have regard to the working conditions and to the risks ... ", while Regulation 4(4)(a) defines "suitable" as meaning "suitable in any respect which is reasonably foreseeable will affect the health or safety of any person". Read together, these provisions may indicate that the obligation imposed by Regulation 4 is not intended to be "absolute" in the sense that the mere occurrence of an accident would in itself constitute sufficient evidence of a breach of duty. Another approach was adopted by Lord Reed in English v North Lanarkshire Council, 1999 SCLR 310, at page 320E, where, construing the equivalent provision of the Provision and Use of Work Equipment Regulations 1992, he held that " ... regulation 11 should be understood as being without prejudice to regulation [4]".
[33]The question in this case is not, however, whether Regulation 4 admits a defence of impossibility but whether, even assuming that it does, it admits a defence based on the cost of alternative work equipment. In answering that question, the following considerations seem to me to be relevant.
- The purpose of the Directive and of the Regulation is to improve the protection of the safety and health of workers at work. Words should not be imported by implication whose effect would be to reduce the protection of the workman (Viscount Simonds in Summers v Frost, cited above).
- In case of impossibility, the Directive requires the employer to minimise the risk.
- The Directive offers no defence based on cost.
- Elsewhere in the Regulations the UK legislator has used words ("reasonably practicable") which permit a defence based on cost, but not in Regulation 4 or in other Regulations such as Regulation 11 where the test is practicability alone.
- Where use of the words "reasonably practicable" opens the way to a defence based on cost, that defence is strictly limited by the requirement to demonstrate gross disproportion between cost and risk. The broad construction of the word "suitable" contended for by the defenders would be subject to no limitation at all except in so far as the courts might in the future be constrained to impose one.
- The broad construction would render the obligation imposed by Regulation 4 so imprecise as to be difficult to enforce and no higher than that already imposed by the common law.
- Adoption of such a loose construction might well bring the standard of protection afforded below that required by the Directive and so render the Regulation incompatible with the Directive.
[34]For these reasons, in my opinion, it is not open to the courts to adopt the broad construction of the word "suitable" in Regulation 4 contended for by the defenders or to import words which would allow the defenders to advance the defence based on cost set out in the four sentences to which the pursuer objects. These sentences are therefore irrelevant and should be excluded from proof.
[35]I would therefore allow the reclaiming motion, sustain the pursuer's third plea-in-law and, quoad ultra, remit the cause for proof before answer.