HEALTH AND SAFETY – WHEN THINGS GET OUT OF CONTROL ....

Yet again the Court of Appeal has dealt with a case about the Provision and Use of Work Equipment Regulations 1998. These Regulations impose duties on employers to supply suitable, safe, work equipment and duties on non-employers who exercise control over work equipment or the way in which such equipment is used.

In Jennings v. The Forestry Commission, J entered into a 'service contract' with the FC to construct stock fencing along the boundary of the FC’s land. The contract said J was an independent contractor and not an employee. Under the original specification, the materials were to be taken to the site by helicopter or all-terrain vehicle supplied by the National Trust. However, J subsequently told the FC that he would be using his Land Rover (as he had done on previous jobs for them) since he considered the work relatively straightforward. J sustained serious injuries when his Land Rover lost traction, slid down the field and rolled over. J sued the FC for damages.

The High Court upheld J’s claim but In the Court of Appeal it was decided:

(1) J had not been an employee. He had the freedom to decide how, and when, he did the work and had been clearly operating his own business.

(2) The parties had agreed a variation to the original specification. The fact that that specification entitled the FC to insist on delivery by helicopter / all-terrain vehicle did not give the FC control over the Land Rover sufficient to make it liable under the Equipment Regulations.

(3) Previous dealings between the parties did not mean that J had been entitled to rely on the FC’s assessment of what mode of transport was necessary. J had made his own assessment of the job and had decided for himself to use his Land Rover. Accordingly, there had been no assumption of responsibility by the FC.

We hear a great deal about the compensation culture, with much publicity being given to out-of-the-ordinary decisions in favour of liability. In reality, the courts normally take a fairly robust, commonsense, approach to such cases. That said, it is vital that employers should always keep health and safety issues firmly in mind, especially in the light of the new Corporate Manslaughter legislation.

To find out more, please contact Gareth Pobjoy.

Filed: 23/06/2008 10:59:20