Whitehead v Trustees of the Chatsworth Settlement

Regulation 12 of the Provision and Use of Work Equipment Regulations 1998 imposes a two-stage duty. An employer must take reasonably practicable measures to prevent exposure to a specified hazard. If prevention is not reasonably practicable, it must take measures to ensure that exposure is adequately controlled. Adequacy is assessed by reference only to the nature of the hazard and the nature and degree of exposure, while considering the available control measures. Those measures may include personal protective equipment, information, instruction, training and supervision, but are not limited to them so far as additional measures are reasonably practicable. An employer which has investigated the relevant risks, issued adequate instructions and provided training may satisfy the duty without covert checks where there is no reason to suspect that employees are disregarding the instructions.

The appellant, a water bailiff and gamekeeper, suffered serious leg injuries when a loaded shotgun discharged as he fell while crossing a wall during solitary work. He claimed damages in negligence and for breach of statutory duty, principally alleging breach of regulation 12 of the Provision and Use of Work Equipment Regulations 1998.

The Recorder dismissed the claim. He found that the employer had identified the risk, provided written instructions and training requiring guns to be unloaded before obstacles were negotiated, and had adequately controlled the risk. The appeal concerned the proper construction and application of regulation 12, including whether the employer had to discover an alleged unsafe practice adopted when keepers worked alone. The Court of Appeal dismissed the appeal.

Appeal dismissed. The court held that a shotgun and its cartridges were work equipment within regulation 2(1), and that regulation 12(3)(d) applied to the risk of unintended discharge.

1. Regulation 12(1) contains two alternative limbs. The employer must take measures to prevent exposure to the specified hazard. If prevention is not reasonably practicable, it must take measures to ensure that exposure is adequately controlled.

2. Regulation 12(2)(a) permits the measures to include personal protective equipment, information, instruction, training and supervision. So far as reasonably practicable, the measures are not limited to those matters. Reasonable practicability is therefore relevant, at least in part, to both limbs of the duty. Regulation 12(2)(b) requires measures to reduce the likelihood of the hazard and, where appropriate, to minimise its effects.

3. “Adequately” in regulation 12(4) requires an assessment having regard only to the nature of the hazard and the nature and degree of exposure. In applying the second limb, the relevant considerations are the available measures, the nature of the hazard, and the nature and degree of exposure. Complete elimination of risk is not required under that limb.

4. The employer’s duties under regulations 8 and 9 require it to investigate risks inherent in the use of equipment and to provide information, written instructions and training sufficient to protect against harm in normal and foreseeable abnormal working conditions. The first limb was not breached because, on the Recorder’s findings, appropriate instruction and training had been provided and no other practicable preventive measure existed.

5. The second limb was satisfied. The employer had identified the risk of carrying a loaded shotgun over obstacles, issued mandatory written instructions, repeated them over time, and provided training. The evidence gave no ground to suspect that the appellant or other keepers were privately adopting an unsafe practice. Secret spot checks, further enquiries or repeated reminders were not required on these facts.

The Recorder’s failure to make an express finding about the alleged common practice was immaterial because he assessed adequacy on the assumption that at least some keepers followed it. The remaining statutory and common-law claims necessarily failed. No issue of contributory negligence arose.

• Court of Appeal (Civil Division): [2012] EWCA Civ 263. Appeal from the dismissal of the personal-injury claim; appeal dismissed.
• Sheffield County Court (sitting at Bradford): judgment of Mr Recorder Cameron dated 7 June 2011. Claim for damages dismissed.