UK: Provision And Use Of Work Equipment Regulations 1998: Some Salutary Lessons

Summary and implications

After more than half a century of detail machine guarding legislation, the number of prosecutions that the HSE takes each year as a consequence of injuries caused by inadequate guarding remains astonishing. The recently publicised increase in magistrates' fining powers is unlikely to have any major impact. Industry should look urgently at its response to the Provision and Use of Work Equipment Regulations (PUWR) and act to avoid the unnecessary harm it is doing to its workers and the damage it is doing to its own business to lost time accidents, fines, claims and rising insurance premiums.

A first step would be to look at your businesses procedures on machine guarding and other aspects of PUWR and review them against the current HSE approved code of practice and HSE guidance for your industry. However, two recent cases highlight the need to think "outside of the box" when assessing the suitability of work equipment. In both cases the courts interpreted how the regulations ought to be considered in light of the European Directives from which they were born.

1. Reliance on industry standards/British standards

The case of Kennedy v. Chivas Brothers Limited highlights the need to consider the circumstances in which work equipment is used in order to head off problems. Chivas Brothers provided trolleys of the high-sided wire trolley type we often see when supermarkets are restocking their shelves. These trolleys were used to move equipment around the factory floor. The trolleys were constructed to British Standard design and regularly maintained. However, Mrs Kennedy was injured when the trolley stuck and then suddenly freed itself whilst being pushed around the factory floor. Finding the trolleys to be heavily laden, being required to change direction and being manoeuvred between machines, the Scottish Court of Appeal found that although the trolleys conformed to industry and British Standards, given the way they were being used they were unsuitable. In giving its decision the court said: "The European Framework Directive and the various health and safety directives, including the Use of Work Equipment Directive, are clearly intended to impose strict standards going beyond the common law of negligence and in some respects beyond United Kingdom health and safety legislation." 

2. When is something reasonably foreseeable?

The requirement under PUWR is to supply suitable work equipment. Suitable means in any respects in which it is reasonably foreseeable that the health and safety of any person would be affected. In Hide v. Steeplechase Co (Cheltenham) Ltd the Court of Appeal said that "reasonably foreseeable" is not to be considered against the usual civil standard but rather whilst it was not likely that an accident might happen it was possible that it might. In providing its reasons the court said: "Once, therefore, the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care and attention on his part. The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were 'unforeseeable' or 'exceptional' in the sense given to those words in the Directive."

These decisions significantly increase the burden on industry when assessing risks and taking steps to mitigate them. When you are assessing the suitability of work equipment you must explore all possibilities, no matter how fanciful, and come to reasoned views as to why more likely risks are dismissed.

PUWR continues to be an area that gives rise to lost time accidents and HSE interventions. In May, the food giant Heinz found itself on the wrong end of a £50,000 fine as a consequence of failings in machine guarding. Whilst the regulations appear daunting and create a range of absolute and qualified duties, a simple but thought-out approach to risk assessment, training, warnings and vigilance will go a long way to keeping on the right side of the regulations and the Directive and reducing costs to business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.