03 February 2012
Tristan Hallam: The Loftstedt Review: my last comment
I can understand entirely why reviews are sometimes carried out. It is a bit like a company employing a management consultant. A situation has been ongoing for some time, it needs looking at again, it needs to be considered whether changes should be put in place given the current environment and therefore we have to bring someone in to look at the position anew. The issue of our bringing in management consultants in my view and with all due respect to Professor Loftstedt, sometimes a waste of time in that sometimes management consultants are brought in for no particular good reason and at the wrong time and had a little thought been given to the situation, their time as well as the company’s time (read - Government) as well as costs could have been spared.Sometimes management consultants are brought in purely to show that other steps are being taken rather than the intention being to actually carry out any changes. I wonder whether this was the situation that applied in relation to Professor Loftstedt’s review on Health & Safety Regulations.I say this as Professor Loftstedt has not suggested any particular changes and the Government have accepted his comments. We are therefore back to where we were. I have commented in my last two blogs on the issue of fairness. I have tried to establish that in common law as well as in statute and the Health & Safety Regulations, there is a thread of fairness and if this is not clear, it is being interpreted as such by the Courts whose Judgments are then binding. I have given much thought over the Christmas period as to a prime example of fairness and the one that immediately strikes me is that which arose in the case of Stark –v- The Post Office.Mr Stark’s claim arises out of the use of a bicycle. Mr Stark was employed by the Post Office. As part of his duties he would be required to cycle around delivering post. He was therefore provided by his employer with a bicycle. When the bicycle broke, namely the front brake broke causing Mr Stark to fall to the ground sustaining injury, he decided to bring a claim.He brought his claim under the Work Equipment Regulations which applies to equipment used for work and provided by employers.The Regulations say that the equipment must be appropriately maintained, must be appropriate for the job that has been carried out and must be safe.Mr Stark did not expect the bicycle to break when he was using it and since the bicycle had been provided by his employer he looked to his employer for appropriate redress. His employer however said that there was nothing inherently wrong with the bicycle. They said words to the effect. ‘if therefore the bicycle had been put in front of me and I am no bicycle expert, and I had ridden around on the bicycle a few times, there would not appear to be anything wrong with the bicycle’. His employer therefore said they could not have foreseen that an injury could occur by the front brake of the bicycle breaking. How can it therefore be fair to impose upon an employer a duty where the defect was not obvious.The point however is this. Employers provide their employees with countless different items of equipment every day for use in their work. Some of this equipment is nothing more than a bicycle. In other cases it can be as dangerous and as cumbersome as a chainsaw. This equipment must work correctly. It must do so to carry out the particular item of work that it is meant to assist in doing, but more importantly it must be safe. I shall make no bones of this. Many people engage in very hazardous work. In the dim and distant past they have lost limbs and died and no-one turned a hair and I have written in a previous blog how an appropriate Society should look out for each person, in particular those who are placed at a disadvantage. If I am therefore using a chainsaw and the chainsaw is defective and causes me to lose my leg, should I then not be entitled to bring a claim against my employer who provided me with defective equipment despite the fact that the equipment was not obviously defective. The fairness therefore lies in the favour of the employee and rightly so in this situation for the reasons that I have given above. It is balanced by the potential seriousness of the outcome for the employee. Despite an employer not being able to see that the equipment was defective, perhaps even on close examination, if my chainsaw slipped because the chain itself was defective which could not have been spotted on examination and I lost my leg as a result, I am entitled to bring a claim against my employer. It fact the Court of Appeal went so far as to say that the duty owed by an employer when providing work equipment is an absolute duty. By this I mean that so long as the employee can show the accident occurred as a result of using equipment which was supplied for their work and the injury occurred as a result of this equipment being defective, the employer will automatically be responsible and therefore liable to compensate the employee. It is then for the employer to bring into the action, and seek to recover the damages they have paid, from the manufacturers of the chainsaw (in my example above) should it be possible and should they wish to do so. A step too far in my fairness argument…. ? I don’t think so.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker.If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email firstname.lastname@example.org and one of our specialist personal injury team will review your compensation claim for free.
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