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Whitehead v Trustees of the Chatsworth’s Settlement, Court of Appeal, 8 March 2012

15 March 2012
The issues

PUWER Regulations 1998 – Provisions and Use of Work Equipment Regulations 1998 (Regulation 12) – duty to train – lone working

The facts

The purpose of the regulations was to protect the user from the risk of injury including injury from misuse of work equipment

On the 8 February 2006 the claimant who was a game keeper was doing river duty alone. He had a 12 bore shotgun broken over his arm, which meant that the safety catch was automatically engaged. There was a live cartridge in the breach of each barrel. He climbed a low stone wall which crumbled, and he fell. As he fell the gun went off, firing both cartridges into his right calf. He was 51 years old and had been a royal engineer where he received basic training in the handling and use of rifles and machine guns. He did not use weapons on active service. His competence in the use of weapons however, had been tested annually. In the 1980s he owned a shotgun for personal use. He left the army in 1991 and underwent a deer stalkers course during which he used a sporting rifle under supervision. In 2000 he was engaged by the agent to the Bolten Abbey Estate as a water bailiff and game keeper. He was required to obtain and did obtain a shotgun licence on being employed. By 2006 he was experienced in the use of shotguns.

He bought a claim against his employer in negligence and for breach of statutory duty. He alleged a breach of s.12 of the Provision and use of Work Equipment Regulations 1998. S.12 in its relevant parts reads:

“Protection against specified hazards:
12(1) Every employer shall take measures to ensure that the exposure of a person using work equipment to any risk to his health or safety from any hazard specified in paragraph (3) is either prevented, or, where that is not reasonably practicable, adequately controlled.
(2) The measures required by paragraph (1) shall-(a) be measures other than the provision of personal protective equipment or of information, instruction, training and supervision, so far as is reasonably practicable;(b) include, where appropriate, measures to minimise the effects of the hazard as well as to reduce the likelihood of the hazard occurring.
(3) The hazards referred to in paragraph (1) are- (a) any article … being ejected from work equipment; … (d) the unintended or premature discharge of any article … which … is produced, used or stored in the work equipment;(e) the unintended or premature explosion of … any article … produced, used or stored in [the work equipment].
(4) For the purposes of this regulation “adequately” means adequately having regard only to the nature of the hazard and the nature and degree of exposure to the risk … “.

The court below dismissed the claim and the claimant appealed.

The decision

Removal of the cartridges was a measure beyond the control of the employer and entirely under the control of the claimant. It was not practicable to require the employer to remove the cartridges since the claimant worked alone. The First Instance Judge took the view that the removal of the cartridges was a measure beyond the employer’s control. The recorder was wrong to this extent. Control was not the conclusive issue. The purpose of the regulations was to protect the user from the risk of injury including injury from misuse of work equipment. There were however, no practicable measures by which the risk could have been prevented save by appropriate instruction and training. The claimant had, on the findings of the judge received that instruction and training. Regulations 8 and 9 of PUWER in respect of which no separate claim had been bought by the claimant) dealt with information and instructions, and training. The meaning and scope of Regulation 9 had been considered in Allison v London Underground Limited in which Smith LJ had emphasised that the test was higher than existed in common law and imposed on the employer a duty to investigate the risks inherent in his operations taking professional advice where necessary.

The same consideration applied to Regulation 8. It was the duty of the employer to provide adequate health and safety information and, where appropriate, written instructions as to the use of equipment. Information and written instructions would only be adequate if they were sufficient, when applied, to protect the user of the work equipment from harm in normal, and foreseeable but abnormal, working conditions. Responsibility was on the employer to investigate the risks which attended such use and issue information and written instructions accordingly.
The judge had found that the appropriate written instructions and training were provided. The claimant argued that such instructions were insufficient unless they drew attention to the practice amongst keepers working alone and forbade it. The defendant could only be aware of a practice if it conducted secret spot checks or made enquiries amongst the keepers and at least one of the keepers admitted it. No spot checks were in fact carried out and no enquiry was made of the keepers. Had there been reason to suspect that the claimant in particular or keepers in general were taking risks with their safety, the court accepted that the duties under Regulations 8, 9 and 12 should have assessed those risks accordingly. On the evidence, there was no cause for the respondent to think that despite the written instructions, the claimant was in private adopting an unsafe practice and therefore no reason to make unusual or surreptitious investigations. The employer had sought the risk, identified it and issued instructions accordingly.

It was not therefore reasonable practicable to prevent exposure to the risk (the first limb of Regulation 12) and the instructions and training provided was such that the risk to which the claimant was exposed when using a shotgun were adequately controlled (the second limb of Regulation 12).

Appeal dismissed.

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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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