Candace Donaldson (ap) V. Hays Distribution Services Limited+cb Hillier Parker Management Services Limited+cb Hillier Parker Limited+national Britannia Health And Safety Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Date | 25 February 2004 |
| Docket Number | A382/01 |
| Court | Court of Session |
| Published date | 25 February 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A382/01
| OPINION OF LORD MENZIES in the cause CANDACE DONALDSON (AP) Pursuer; against (FIRST) HAYS DISTRIBUTION SERVICES LIMITED; (SECOND) CB HILLIER PARKER MANAGEMENT SERVICES LIMITED; AND (THIRD) CB HILLIER PARKER LIMITED Defenders: and NATIONAL BRITANNIA HEALTH & SAFETY LIMITED Third Party ________________ |
Pursuer: MacAulay, QC, Dunlop; Drummond Miller, WS (for McLeod & McCallum, Solicitors, Inverness)
Defenders: Gallagher; Bishops (For second & third defenders)
25 February 2004
[1]This is an action for damages for personal injuries averred to have been sustained by the pursuer when she visited the Argos Store at the Eastgate Centre, Inverness on about 27 October 1998. The pursuer avers that the second defenders (or alternatively the third defenders) were the managers of the Eastgate Centre, and took responsibility for the co-ordination and organisation of health and safety matters, and in particular the separation of pedestrian and vehicular traffic within the loading bay area of the Centre. The pursuer further avers that she purchased some furniture from the Argos Store and was told by staff in the store to go to the loading bay area where her purchase would be available to be uplifted. The pursuer entered the loading bay area, in which several vehicles were parked. When she was in the loading bay area, an articulated lorry owned by the first defenders and driven by their employee reversed and collided with the pursuer, crushing her against the wall of the loading bay. The pursuer in the present action seeks damages from the defenders jointly and severally.
[2]The matter came before me for debate on the procedure roll, on the first pleas-in-law for the second and third defenders. These pleas were in identical terms, as follows:-
"The pursuer having no title to sue these defenders under Workplace (Health, Safety and Welfare) Regulations 1992, the action insofar as directed against these defenders should be dismissed".
The pursuer has cases against the first defenders based on their vicarious liability for the driver of the lorry, and also based on breach of statutory duty, which are not relevant for present purposes. She has no case against either the second or the third defenders based on fault and negligence: her case against these defenders is based solely on their breach of Regulation 17(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Regulations").
The parts of the Regulations relevant for present purposes are as follows:-
"4(1) Every employer shall ensure that every workplace .... which is under his control and where any of his employees works complies with any requirement of these Regulations which (a) applies to that workplace ... and (b) is in force in respect of the workplace ...
(2) .... every person who has, to any extent, control of a workplace ... shall ensure that such workplace ... complies with any requirement of these Regulations which (a) applies to that workplace .... (b) is in force in respect of the workplace ... and (c) relates to matters within that person's control.
17(1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner.
(2) Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.
(3) Without prejudice to the generality of paragraph (2), traffic routes shall not satisfy the requirements of that paragraph unless suitable measures are taken to ensure that (a) ... vehicles may use a traffic route without causing danger to the health or safety of persons at work near it; ... (c) where vehicles and pedestrians use the same traffic route, there is sufficient separation between them".
[3]The pursuer avers that following the accident the second defenders were convicted of a charge of breaching Regulation 17 of the Regulations. The issue before me was whether the Regulations impose any duties in respect of persons who are present at a workplace but who are not there at work or for the purposes of work. I heard submissions from counsel for the second and third defenders and from senior counsel for the pursuer; thereafter, on joint motion of parties, I continued the matter to await the issuing of the Opinion of Lord Drummond Young in an analogous case, namely Fiona McCondichie v Mains Medical Centre (unreported), 31 October 2003, and I then heard further submissions for the parties in light of this decision.
Submissions for the second and third defenders
[4]Counsel submitted that the Regulations were intended to give effect to the Workplace Directive of 30 November 1989 (89/654/EEC). Where United Kingdom legislation is intended to implement a European Directive, counsel submitted that a purposive interpretation must be adopted so as to give effect to the results envisaged in the Directive. In support of this proposition he referred me to Litster v Forth Dry Dock & Engineering Co Ltd 1989 S.C.(H.L.) 96, Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] E.C.R. I-4135, and McGhee v Strathclyde Fire Brigade 2002 S.L.T.680.
[5]Counsel submitted that it was clear from the terms of the Workplace Directive that it was concerned with ensuring a better level of protection of the safety and health of workers, and that it was not concerned with the health and safety of persons who were not workers but who happened to visit the workplace. In this regard he referred me to the preamble to the Workplace Directive, which opened with a reference to Article 118a of the Treaty, which related to workers. There are repeated references in the preamble to the aim of ensuring the safety and health of workers -
"whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection for the safety and health of workers".... "whereas the communication from the Commission on its programme concerning safety, hygiene and health at work provides for the adoption of a Directive designed to guarantee the safety and health of workers at the workplace" .... "whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health at work is essential to ensure the safety and health of workers" ... "measures to encourage improvements in the safety and health of workers at work".
It was clear from the provisions of the Directive itself that it was aimed at improving the safety and health of workers; this was apparent from e.g. Articles 2, 6, 7, 8 and 10(3). Counsel also referred me to Annex I to the Directive, and particularly to paragraphs 12 (Traffic Routes - Danger Areas) and 14.3 (Loading Ramps). Again it was clear from these provisions that they were intended to protect workers, and not casual visitors to the workplace or non-workers.
[6]Turning to the Regulations themselves, counsel referred me first to the preamble, and submitted that it was important that the Regulations were not made under paragraph 8 of Schedule 3 to the Health and Safety at Work etc Act 1974, which related to the making of arrangements for securing the health of persons at work or other persons. He also drew my attention to Regulation 2(3) which provides that:
"any requirement that anything done or provided in pursuance of these Regulations shall be suitable, shall be construed to include a requirement that it is suitable for any person in respect of whom such thing is so done or provided".
Regulation 4, which deals with requirements under the Regulations, is couched in the language of "employer" and "employee"; Regulation 12, which deals with the condition of floors and traffic routes, refers (in paragraph (2)) to exposing "any person to a risk to his health or safety", and in paragraph (3) to causing "a person to slip, trip or fall". Regulation 17 refers to "pedestrians" without qualification in paragraph (1), to "the persons or vehicles using them" again without qualification in paragraph (2) but in paragraph (3)(a) it appears that the danger which is sought to be prevented is danger to the health or safety of persons at work near a traffic route. Counsel submitted that although the Regulations are not wholly free from ambiguity as to whom they seek to protect, applying a purposive interpretation it is clear that they are intended to protect workers.
[7]Counsel told me that the point had been argued in four Sheriff Court cases in recent years, but (at the date of his submission) had not yet been decided in this Court, nor in the English Courts. The Sheriff Court decisions to which he referred were Banna v Delicato 1999 S.L.T. (Sh.Ct.) 84; O'Brien v Duke of Argyll's Trustees 1999 S.L.T.(Sh.Ct.) 88; Layden v Aldi GmbH & Co KG 2002 S.L.T.(Sh.Ct.) 71 and Mathieson v Aberdeenshire Council 2003 S.L.T.(Sh.Ct.) 91. He suggested that O'Brien simply adopted the Court's reasoning in Banna, and added little to it, and that in Mathieson the question did not arise until after a proof, and there had been an implied admission that the Regulations applied, and the defenders had no preliminary plea directed against the pursuer's case. Accordingly he suggested that the different approaches to the Regulations were clearly focused in Banna and Layden. He adopted the argument for the defenders in Layden.
[8]Counsel maintained that there was an important distinction between the ambit of Regulations (that is to say, who benefits from the protection of the Regulations) and the stringency of Regulations (that is to say, the standard which an employer must meet in order to comply with the Regulations). He conceded that it was open to the United Kingdom Parliament to make Regulations the ambit of which was wider than that contained in the Workplace Directive, but it was clear that Parliament had chosen not to...
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