Gale v Turners (Soham) Ltd & Anor

This is a renewed application for permission to appeal made today by Mr Glyn Edwards. The applicant suffered a nasty scald injury to his right foot and ankle when he inadvertently opened a valve on his tanker which released very hot water. The tanker was owned by his employer, the first defendant, and was regularly steam-cleaned by the second defendant at their premises.

On the judge’s now uncontested findings the applicant, following the accepted routine, had left his vehicle to be steam cleaned by a Mr Selby, the second defendant’s employee. The routine was that when the task was completed, the second defendant’s staff would leave the valves open and the driver would close them. Before the process was over, a final sample had to be taken of the extruded water to ensure that it was visually and chemically clear for the next load of foodstuff, and the tanker uncontaminated.

The applicant returned to his vehicle towards the end of the process and called out “finished” to Mr Selby. He thought Selby said, in reply, something like “all done”, but, in fact, Selby had not heard him and the job was not yet complete. In the mistaken belief, however, that it was time to close the valves, the applicant raised the lever on one of them from its lowered position and released a jet of scalding water on to his foot, for it was in fact already closed and he had opened it.

Not all the valves opened in the same direction on this vehicle and it is easy to see how a driver would assume, once the cleaning was complete, that whatever position a value was in was an open position, in which it was his job to close it. So the judge’s parting remark in this case, that the accident was the applicant’s fault, may well have been, as the final ground of appeal asserts, unwarranted. If the judge was right on the other issues, then an appeal will, in any case, fail. If he was wrong on one or more of them, then, subject to any cross-notice there may be on contributory negligence, the appeal will succeed. All that it is necessary to say at this stage is that the real choice on the judge’s findings seems to me, at least, to be between fault on the first defendant’s part and a pure accident.

What the applicant contends the judge got wrong here were the nature and requirements of the statutory duties which unquestionably bound the first defendant, as well as its common law duty to provide a safe system of work. The judge’s findings exonerated the second defendant and they are now out of the picture. As to the first defendant, the judge rejected the allegation that they had failed to institute and maintain a safe system of work. He applied Lord Tucker’s well known dictum in General Cleaning Contractors v Christmas that the duty required reasonable steps to enable the employee to be reasonably safe, but no more. He found that the system which I have described met this test. Although I would not, I think, have been disposed to give permission to appeal against this finding by itself, for reasons to which I now turn, I think that it ought to be on the agenda, and therefore that permission to appeal ought to be given in respect of it, when the case comes, as I consider it should, before the full court.

The judge, however, also rejected all the allegations of breach of statutory duty which were made against the first defendant. It is to this that the remaining grounds are directed. Richards LJ, refusing permission to appeal on sight of the papers, accepted that the judge had dealt “robustly” with these. The duties mainly arise under the Provision and Use of Work Equipment Regulations 1998. It may be that none of them properly merits the description “strict” which Mr Edwards had sought to apply to them, but they arguably go and are intended to go beyond what the common law duty of care alone would demand.

The main duty now relied on is under Regulation 12, which requires measures to be taken to ensure that the employee is not exposed to any risk by the unintended or premature discharge of any liquid. The judge was right, I think, in rejecting this head of claim to note that the duty was not to ensure safety but to take measures to ensure it. His view was that the valve, being “perfectly adequate to prevent unintended or premature discharge”, was just such a measure.

I would think that if it is not possible for the employee to know easily whether a valve is open or shut, the measure represented by the valve may not be sufficient compliance. This, however, was not the totality of the measures taken. While an employer cannot delegate a duty such as this, it can, I would think, rely on the system into which it has delivered the equipment to ensure, as the second defendant’s system sought to do, that no driver touched the vehicle until the cleaning was complete and the valves open.

This, rather than the narrower reason given by the judge, that the discharge was not unintended or premature, may afford an answer on the basis of the judge’s other findings to the case under Regulation 12, but it is not the answer the judge gave. In the light of the view that I have reached about the allegation of breach of Regulation 9 and of a further regulation concerning risk assessment, which I shall come to in a moment, I would be minded to give permission to appeal on this issue, too. I do so also because I think that the question of unsafe system itself needs to be on the agenda.

Next, it is sought to attack the judge’s finding that Regulation 13, which requires equipment holding very hot liquids to have protection so as to prevent injury by burning or scalding, was not breached. The judge considered that the injury was “not the fault of the equipment”. The evident purpose of the regulation is to prevent accidental contact, but it may be arguable that it is also apt to include the functioning of equipment such as the tank and its valves and the liquid it contains. How these ought to be “protected” is much more of a problem and it may be why the judge expressed his finding as he did. The way it is put in paragraph 3(3) of Mr Edwards’ skeleton shows how awkward it is to try to get what happened here within Regulation 13:

“It is therefore a failure to protect the high temperature [water] to allow it to discharge directly outwards to a point where the Appellant was standing when operating the valve.”

I think there needed to be expert evidence to show how a different design of valve might have afforded such protection, and I do not think that, in its absence, the argument can get a breach of Regulation 13 off the ground. I would therefore not be disposed to give permission to appeal under this head.

It is then contended, however, that, contrary to the judge’s finding, there was a breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999. This regulation, a copy of which is unfortunately not in the papers and must be added to them, requires a suitable and sufficient risk assessment to be made for the purpose of identifying measures that the employer needs to take to comply with the requirements and prohibitions imposed on him. To complete a case under this regulation it will, of course, be necessary to show that had such an assessment been made, the accident would more probably than not have been avoided or at least that a substantial contribution would have been made to its avoidance.

Before I deal with this head of claim, let me turn to the case under Regulation 9 of the 1998 Regulations. It is contended that there was a causative breach of this regulation, which requires that employees be adequately trained. The judge held simply that this was not a case where the accident occurred because of any inadequate training. That seems to me, with respect, to be a conclusion and not a reason. If one were to try to deduce a reason from the remainder of the judgment, it would have to be the judge’s finding that the system was not unsafe, but accepting, for the present, that that finding should stand, it is not necessarily an answer to a breach of Regulation 9. Good training ought arguably to be directed to guarding against the risk of human error, which can, as it did here, defeat what the judge found to be a reasonably safe system.

Given the noisy ambience of the second defendant’s workshop, which made oral communication difficult, and the not unreal risk that a closed valve might, with serious consequences, be mistaken by a driver for an open one, it seems to me respectably arguable that training could and should have guarded against this; whether, as pleaded, by requiring the driver to get a clearance docket from the cleaning operative or, as suggested in closing submissions to the judge, by insisting on some other formal act, such as the handing over of the sample which was done at the conclusion of each steam cleaning before the driver retook possession of the vehicle and could close the valves in the knowledge that they were now all standing open. Absent such training, it could legitimately be said that the possibility that such an accident has happened to the applicant was greater than it need have been.

Returning then to Regulation 3 of the 1999 Regulations, much the same can be said of the requirement of risk assessment. There is arguably always a risk of human error, even in a reasonably safe system, and it may be the case that risk assessment and training need to march together in this regard.

Mr Edwards has reminded us of the decision of the House of Lords in the recent case of Robb v Salamis Limited [2006] UKHL 56. There, at paragraph 29, Lord Hope said:

“The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened …”

The present case seems to me to raise a legal question of some interest about the relationship between the common law duty to provide a safe system of work and the statutory duties to appraise risk and provide training.

I would therefore grant permission to appeal on all except the Regulation 13 issue. The grant of permission to appeal will include a challenge to the judge’s finding that the accident was all the claimant’s fault, since that too has to be disposed of in order to get at what I regard as the real issues. If my Lord agrees, I would grant permission to appeal accordingly.

I agree.