Eoin Quinn

The judgment provides a useful analysis of the relationship between health and safety regulations and employers’ common law duty of reasonable care. The case arose from an incident where the pursuer was using a safety knife provided by his employer to open a bundle of bath panels. Using the knife, the pursuer cut downwards through a band of tape. As he did so, the blade came into contact with his right hand, causing a deep cut. The pursuer alleged the knife was unsuitable work equipment and that he was inadequately trained in how to use it. B&Q had provided the pursuer with a self-retracting safety knife but, in the years following the incident, it had been updated to a cutting tool with a concealed blade.

In a detailed judgment, Sheriff McGowan considered that when assessing whether there has been a breach of duty, the questions to be considered may be expressed as (a) what did the defender do which it should not have done? and/or (b) what did the defender not do which it ought to have done? Distinguishing the cases of Hide v Steeplechase (2013) and Robb v Salamis (2006) (pre-2013 act cases which imposed onerous duties for work equipment suitability), Sheriff McGowan commented that the existence of a duty of care is not sufficient for liability for foreseeable loss. The standard of care is neither absolute nor strict, but one of reasonable care.

In commenting upon Robb, where Regulation 4 of PUWER was said to impose an absolute duty, Sheriff McGowan stated that it is not clear such law remains relevant in the context of negligence post the 2013 act, and caution is required as the statutory duties are stricter than the common law. It is not appropriate to simply read Regulation 4 into the common law standard of the duty of care.

Noting that there has been a major change in law following the 2013 act and the precise effect of it remains uncertain, Sheriff McGowan considered that as a matter of general principle, the regulations are relevant to an assessment of the obligations of an employer in discharging its duty to exercise reasonable care.

However, he went on to suggest more significantly that: “The precise impact of that in any given case will depend on (a) the factual circumstances prevailing and (b) the precise way in which the statutory duty relied upon is formulated and/or has been interpreted”. Considering employer regulations which create a strict or absolute standard of care, Sheriff McGowan stated the strict element must be moderated to the standard of reasonable care.

In a judgment that will be refreshing for conscientious employers and their insurers, Sheriff McGowan reiterated that there is no absolute requirement to eliminate risk, and ultimately an employer requires simply to take reasonable care. In this case, the Court held that the pursuer had not proved negligence on the part of B&Q by providing the safety knife or failing to provide the cutting tool sooner.

A further useful point from the judgment concerned the defender’s right to fair notice in the pursuer’s written case. The pursuer made a bald averment that there was a failure to provide adequate training. Objection was taken by the defender to evidence being led about training, and further in relation to the use of safety gloves – that issue arising during the course of the pursuer’s evidence. The objection was based on the absence of notice in the pursuer’s pleadings about how the training provided was inadequate, and the absence of any written pleadings in relation to safety gloves. The objection was ultimately sustained. Further, the defender was successful in persuading the court that in any event a case on training was irrelevant, as there were no averments and no evidence of the training or information the pursuer ought to have been provided with, which, had he known, would have prevented the accident. Practitioners should note that even in an era of abbreviated pleadings under Chapter 36, the pursuer still requires to set out more than the bare bones of their case.

Finally, the court also held that had liability been established, contributory negligence would have been assessed at 50 per cent. Sheriff McGowan considered the pursuer ultimately made a conscious decision to embark on a risky course of action while carrying out a simple task with a piece of equipment which he had used many times before. Current authority on contributory negligence in employers’ liability cases suggests momentary lapses or acts of inattention or inadvertence will not ordinarily attract a deduction, so this analysis is a helpful benchmark where employees succumb to injuries when exposing themselves to obvious risk.

The case provides a useful analysis for practitioners in common law employers’ liability cases going forward. Reliance on the regulations is simply no longer enough. This case demonstrates the purpose of the 2013 act in action, in that only negligent breaches of the regulations will sound in damages, and regulations previously said to impose strict liability must be tempered and moderated to the standard of reasonable care. The bar is higher for claimants now following the implementation of the 2013 act and there is an expectation that the written pleadings set out the necessary elements for proof of negligence.

The trial was conducted wholly virtually and witnesses provided evidence via video link. The straightforward facts of the case made it adept for being heard virtually. Even when the waves of the pandemic recede, in cases where witnesses and agents would normally be required to travel significant distances, it is hoped that the Court will continue to facilitate virtual trials in appropriate cases.