Gale v Turners (Soham) Ltd & Anor

On a renewed application for permission to appeal, the Court of Appeal held that several issues concerning an employer’s common-law and statutory duties were properly arguable. Statutory duties under the Provision and Use of Work Equipment Regulations 1998 may require measures beyond the common-law duty to provide a reasonably safe system. For Regulation 12, a valve may be insufficient if employees cannot readily tell whether it is open or shut, although the employer may rely on an integrated system preventing access before cleaning is complete. A finding that the work system was reasonably safe does not necessarily answer a separate training claim under Regulation 9. A Regulation 3 risk-assessment claim requires causative proof. Permission was refused on Regulation 13 because expert evidence was needed to show how an alternative valve design could prevent the injury.

This was a renewed application by an employee for permission to appeal from Bristol County Court. His Honour Judge Rutherford DL had rejected claims against the employer and the steam-cleaning company after the employee suffered a scald injury while reopening a tanker valve during steam-cleaning operations. The second defendant was exonerated. The first defendant was found not to have breached its common-law duty to provide a safe system of work or the relevant statutory duties. The central issues concerned the scope and interaction of those duties, and whether the accident was properly attributed to the claimant. The Court of Appeal granted permission on all grounds except the Regulation 13 issue.

Permission granted in part. Sedley LJ granted permission to appeal on the safe-system issue, the claims under Regulations 12 and 9 of the Provision and Use of Work Equipment Regulations 1998, the claim under Regulation 3 of the Management of Health and Safety at Work Regulations 1999, and the finding that the accident was entirely the claimant’s fault. The merits were left for determination by the full court.

1. The common-law safe-system issue was properly arguable. The statutory duties might not be properly described as strict, but they were arguably intended to go beyond the requirements of the common-law duty of care. The lower court’s reliance on the dictum in General Cleaning Contractors v Christmas did not dispose of the wider statutory and systems issues.
2. Regulation 12 required measures to ensure that employees were not exposed to risks from unintended or premature discharge, rather than an absolute guarantee of safety. A valve might be insufficient if an employee could not readily tell whether it was open or shut. Although the employer could not delegate the duty, it could arguably rely on an integrated system preventing the driver from touching the vehicle until cleaning was complete and the valves were open.
3. The Regulation 13 ground was not sufficiently arguable. Expert evidence was needed to show how a different valve design could have protected the claimant from the scalding. In its absence, the alleged breach could not be established even for permission purposes.
4. The lower court’s conclusion that the accident was not caused by inadequate training was merely a conclusion. A finding that the system was reasonably safe did not necessarily answer the separate Regulation 9 issue. Training could arguably have addressed human error, communication difficulties and mistaken identification of valve positions.
5. A Regulation 3 claim required proof that a suitable and sufficient risk assessment, if made, would probably have avoided the accident or made a substantial contribution to avoiding it. There was an arguable relationship between risk assessment and training in addressing human error within an otherwise reasonably safe system.
6. Robb v Salamis Limited, [2006] UKHL 56, was relevant to the question whether an employer must anticipate risks arising from carelessness even where the precise accident was not foreseeable. That authority reinforced the legal interest of the relationship between the common-law safe-system duty and the statutory duties.

Lightman J agreed. The order was: application granted.

• Court of Appeal (Civil Division)—on 15 May 2007, the renewed application for permission to appeal was granted on all grounds except the Regulation 13 ground.
• Bristol County Court—His Honour Judge Rutherford DL rejected the claims against the employer and the steam-cleaning company, including the alleged breaches of the common-law safe-system duty and the relevant statutory duties.