Mark Brynmor Whitehead v Trustees of the Chatsworth Settlement
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford |
| Judgment Date | 08 March 2012 |
| Neutral Citation | [2012] EWCA Civ 263 |
| Date | 08 March 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/1920 |
[2012] EWCA Civ 263
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT (sitting at Bradford)
Mr Recorder Cameron
Claim No. 8SE11781
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Lord Justice Patten
and
Lord Justice Pitchford
Case No: B3/2011/1920
Richard Copnall (instructed by Russell Jones & Walker—Solicitors) for the Appellant
Graham H Wells (instructed by DWF—Solicitors) for the Respondent
Hearing date: 28 February 2012
This is the judgment of the court. On 7 June 2011 Mr Recorder Cameron, sitting at Bradford County Court, dismissed the appellant's claim for damages for personal injuries suffered in a shooting accident during the course of the appellant's employment with the respondent. The appellant appealed against that judgment. At the conclusion of the hearing the court dismissed the appeal. In reaching its conclusion the court has been required to consider the meaning and scope of regulation 12 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306), regulations re-enacted (in succession to the 1992 Regulations) in performance of the United Kingdom's obligations under the Council of Europe's Framework Directive of 12 June 1989 (Safety and Health of Workers at Work) and the Work Equipment Directive of 30 November 1989. The following are our reasons for dismissing the appeal.
The appellant
The appellant was born on 29 January 1960 and is now aged 51 years. He enlisted with the Royal Engineers in 1977 and received basic training in the handling and use of rifles and machine guns. He was an army driver and did not use weapons on active service. Nevertheless, his competence in the use of personal weapons was tested annually. In the 1980s he owned a shotgun for personal sporting use and was issued with a shotgun certificate. The appellant left the army in 1991. In April 1994 he underwent a deer stalker's course during which he used a sporting rifle under supervision. On 2 May 2000 the appellant was engaged by the agent of the Bolton Abbey Estate, Benedict Heyes, as a water bailiff and gamekeeper. His supervisor, who took part in the appellant's interview, was the head gamekeeper, Brian Shepherd. One of the appellant's responsibilities was to patrol the estate's river waters and to keep down vermin. For this purpose he carried a shotgun supplied by the respondent. From time to time the appellant was also engaged to act as a "loader" for sporting guns during shoots held on the Bolton Abbey and Chatsworth estates. That work required knowledge of the safe use of guns by guests and clients of the estate in which he was instructed by Mr Stephenson. He was required to obtain and did obtain his second shotgun licence upon taking up his employment. By 2006 the appellant had become experienced in the use of shotguns.
The accident
On 8 February 2006 the appellant was engaged alone in river duty. He was carrying the side-by–side Sarriguate 12 bore shotgun provided to him by the respondent broken over his arm, which meant that the safety catch was automatically engaged. However, there was a live cartridge in the breech of each barrel. The appellant climbed a low stone wall which crumbled under his weight causing him to fall. As he fell the gun somehow closed and discharged both cartridges into his right calf. This account of the accident was admitted in the pleadings.
The employer's duty
The appellant's claim was brought in negligence and for breach of statutory duty. It was common ground that the high point of the appellant's claim for breach of statutory duty was an alleged breach of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306). The appellant acknowledged that if his appeal against the Recorder's finding in respect of regulation 12 failed then no more favourable claim was available to him either for breach of statutory duty or in common law negligence. Thus the appeal focused upon the Recorder's rejection of an alleged breach of regulation 12 which provides, in its material parts, as follows:
" Protection against specified hazards
12(1) Every employer shall take measures to ensure that the exposure of a person using work equipment to any risk to his health or safety from any hazard specified in paragraph (3) is either prevented, or, where that is not reasonably practicable, adequately controlled.
(2) The measures required by paragraph (1) shall—
(a) be measures other than the provision of personal protective equipment or of information, instruction, training and supervision, so far as is reasonably practicable;
(b) include, where appropriate, measures to minimise the effects of the hazard as well as to reduce the likelihood of the hazard occurring.
(3) The hazards referred to in paragraph (1) are—
(a) any article…being ejected from work equipment;
…
(d) the unintended or premature discharge of any article…which…is produced, used or stored in the work equipment;
(e) the unintended or premature explosion of…any article…produced, used or stored in [the work equipment].
(4) For the purposes of this regulation "adequately" means adequately having regard only to the nature of the hazard and the nature and degree of exposure to the risk…"
Application of regulation 12
While the regulations may not have been drafted with the circumstances of the appellant's accident in mind, the definition of 'work equipment' in regulation 2(1) as "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)" is wide enough to include a shotgun and it is common ground that the appellant's shotgun was work equipment for this purpose together with the cartridges which formed part of the equipment.
It was also common ground that in the course of the appellant's work he would be expected to patrol the respondent's river water carrying his shotgun for the purpose of eliminating vermin if the occasion arose. The parties were agreed at trial that it was normal practice for a keeper, on open, flat, ground, to carry a shotgun broken (that is, open at its hinge and carried over the arm), but loaded with a cartridge in the breech. There was, the respondent conceded, a risk that while negotiating an obstacle or difficult terrain, the keeper may fall on or drop his shotgun. If he did, there was a further, if remote, risk that the gun would fire an unintended shot, exposing the keeper himself or any bystander to shotgun wounds. Thus, it was agreed that by the application of regulation 12(3)(d) the duty of the employer owed under regulation 12(1) and (2) applied to the circumstances of the appellant's accident.
In Dugmore v Swansea NHS Trust & Another [2002] EWCA Civ 1689, [2003] 1 All E. R. 333 the Court of Appeal considered the effect of the similar wording in regulation 7(1) and (11) of the Control of Substances Hazardous to Health Regulations ("COSHHR") 1994:
"(1) Every Employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.
…
(11) In this regulation "adequate" means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and "adequately" shall be construed accordingly."
Giving the judgment of the court Hale LJ, as she then was, explained the effect of regulation 7, paragraphs (1) and (11) as follows:
"14…Many legislative provisions imposing duties upon employers to protect the health and safety of their employees impose strict liabilities different in kind from their duties at common law. Regulation 7(1) uses the language of strict liability in providing that an employer 'shall ensure' that exposure is either prevented or controlled. The primary duty is to prevent exposure altogether, unless this is not reasonably practicable. 'This' must refer to 'prevented' rather than both limbs of the duty. Where prevention is not reasonably practicable, the secondary duty is adequately to control the exposure. Adequately is restrictively defined, the only relevant factors being the nature of the substance and the nature and degree of exposure generally. Nowhere is there any reference to the reasonable foreseeability of the risk. Nor is the duty dependent upon what a risk assessment would have revealed. It is therefore irrelevant whether or not a reg. 6 assessment would have revealed it."
As to the meaning of the alternative duty, to ensure that the exposure to hazard was "adequately controlled", Hale LJ said at para. 25:
"'Adequately' is defined by regulation 7 without any reference to reasonableness or the foreseeability of risk: it is purely a practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else."
In the later appeal of Allison v London Underground Ltd [2008] EWCA Civ 71, [2008] IRLR 440, Smith LJ, giving the leading judgment, examined the question whether the duty owed under regulation 9 of the Provision and Use of Work Equipment Regulations 1998 to provide training in the use of equipment should properly be described as "strict" or "absolute". At paragraph 31 Smith LJ used the term "strict liability" to describe the consequence to the employer of a failure which could not be excused on the ground that it was not practicable or reasonably practicable to avoid a risk of harm; "absolute liability", however, was a term reserved for those failures which could not be prevented even by...
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