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Donaldson v Hays Distribution Services, Court of Session (Inner House, First Division), 14 June 2005

7 October 2005
The issues

Workplace (Health Safety & Workplace Regulations) 1992 – Applicability to Members of the Public

The facts

The Claimant was visiting the Argos store in the Eastgate Centre in Inverness where she purchased some furniture. She was told by staff of the store to go to the loading bay area to take up her purchases and she made her way to the area.

In the loading bay she approached an employee of the store, C&A, to enquire about where the Argos collection point was. To do so she entered an area between the C&A loading bay and the First Defendant’s lorry. As she turned to leave that area the First Defendant’s lorry reversed towards the loading bay and she was crushed between the lorry and the loading bay. Amongst other issues the question arose as to whether or not the Claimant could bring a claim under the Workplace Regulations.

The decision

Three decisions of the English and Scottish Courts bore upon this matter namely Ricketts v Torbay Council, McCondichie v Mains Medical Centre and Layden v Aldi.

Regulation 17 provided that “every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner”. The Workplace Directive was the framework directive which provided for the adoption of individual directives dealing with specific aspects of working conditions. The workplace directive emanated from that directive and article 1 provided that it laid down minimum requirements for £safety and health of the workplace”. The workplace directive was concerned only with the health and safety of workers and was not concerned with occupier’s liability in general.

The general principle in Marleasing SA v La Commercial Internacional De Alimentacion was that national courts when called upon to apply national law must as far as possible do so in the light of the wording and purpose of the directive in order to achieve the result intended by the directive.

The question was whether purposive construction had any part to play in limiting the application of the regulations to implementation of the directive. It was not the case that the fact that the purpose of the directive which the regulation sought to implement was one limited to a particular class of beneficiaries had the result that the regulations must be construed as benefiting only that class of beneficiaries. It was open to Parliament to go further than the directive.

It was open to a member state to make its regulations more stringent that that required by the directive.

Here however the pursuer argued not for a higher standard of protection but for the application of the same standard of protection as applied to workers to a class of non worker visitors. The directive was not concerned with such a class. It would be open to Parliament to extend the protection of the Regulations to non worker visitors but the Court did not consider that an intention to do so should be readily inferred.

The language of each regulation was dictated more by the content of the duty than it sought to create than by the identity of a person for whose benefit is made. There were many different references to people in the regulations. There were references to “any person” and to “any person at work in the workplace” and to “any person in the workplace”. It was unlikely that each regulation was intended to set out the scope of its own application in terms of the persons entitled to rely upon it. It would be wrong to place very much weight on the language of the individual regulation. There was nothing in regulation 17 against the background of the workplace directive which should be regarded as pointing to its application to non worker visitors.

The Court concluded from the fact that the workplace regulations were enacted to give effect in the United Kingdom to the workplace directive which applied exclusively for the protection of workers; and in the absence of any positive indication in the legislation that it was intended that the workplace regulations should afford protection to those coming on to premises as visitors and not workers; and the extreme improbability that the legislative intention was to supersede much of the law of occupiers liability tacitly by the mere use of general language which might be said in the abstract to be capable of having that effect, that on proper construction of the Workplace Regulations in the relevant context they afforded no protection to persons present in a workplace as visitors but not as workers. Such persons had the protection afforded to visitors by the law relating to occupiers liability.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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