UK: Workplace (Health, Safety and Welfare) Regulations 1992

The recent decision in the case of Donaldson v Hays Distribution Services Ltd [2005] SLT 733 established that the duties owed in the workplace under the Workplace (Health, Safety and Welfare) Regulations 1992 apply only to workers and not to visitors in the workplace.

The court held that the Workplace Regulations 1992 had been enacted in order to implement the Workplace Directive 89/654/EEC in the UK. The Directive applied exclusively to the protection of workers and as there was no positive indication in the legislation that the 1992 Regulations were to apply more widely, the court dismissed the Pursuer’s (claimant’s) argument that the duties owed under the 1992 Regulations also extended to visitors.

The Pursuer (claimant) was a customer at a shopping centre where she was crushed against a wall of a loading bay by a lorry. The claimant brought an action of damages for the injuries she sustained as a result of the accident. The claimant’s cause of action against the Second and Third Defenders, who were alleged to have been in control of the loading bay, was that they breached the requirements imposed by Regulations 17(1) and 17(2) of the Workplace (Health, Safety and Welfare) Regulations 1992, which were enacted in the UK in order to implement the EU Workplace Directive.

These Regulations require that (1) every workplace should be organised in such a way that pedestrians and vehicles can circulate in a safe manner and (2) that traffic routes in a workplace should be suitable for the persons or vehicles using them. The advantage to the claimant in replying on them was that the defender would be strictly liable for injury resulting from any breach.

At first instance, the Lord Ordinary dismissed the action.

In essence, the claimant argued that the 1992 Regulations applied not only to workers but also to persons who were present in the workplace but who did not work there. The claimant’s main arguments were:

• that the words "pedestrians" and "persons" used in Regulations 17(1) and 17(2) should be given their ordinary meaning as opposed to being construed as only referring to workers.

• that some regulations referred specifically to "workers" whereas others only referred to "persons" or "pedestrians". According to the claimant, this showed that for those regulations which only referred to "persons" or "pedestrians", Parliament was refusing to distinguish between workers and other persons present in the workplace.

• that although it may be necessary to adopt a purposive approach when interpreting domestic legislation implementing a European directive, nothing prevents domestic legislation from going beyond the scope of a directive.

The Second and Third Defenders’ maintained that the duties imposed by the 1992 Regulations applied only to workers. They argued:

• that it was clear from the Regulations that it was the use of premises by workers that triggered the duties under the Regulations. The presence of non-workers in the workplace was irrelevant and had no influence on whether any duties arose under the Regulations.

• that the aim of the 1992 Regulations was to implement the EU Workplace Directive in the UK, the aim of which was to afford protection to workers. Although it was possible for the UK Parliament to give a wider scope to the 1992 Regulations than the one envisaged in the Workplace Directive, Parliament would have to make clear indications to that effect in the Regulations. As there were no such indications in the 1992 Regulations, it could not be inferred that the 1992 Regulations applied to workers as well as to visitors in the workplace.

• that if the 1992 Regulations were to be construed as suggested by the claimant, this would in effect constitute a dramatic change in the law as it would extend the benefit of the strict liability duties imposed on employers to visitors in the workplace.

The Inner House (the appeal court of the Scottish Court of Session) dismissed the claimant’s arguments and held that the 1992 Regulations only applied for the benefit of people at work in the workplace.

The court accepted that it was open to Parliament to extend the scope of the 1992 Regulations beyond what was contemplated in the EU Workplace Directive. Although the 1992 Regulations were made under section 15(1) of the Health and Safety at Work Act 1974 which gives the Secretary of State power to make regulations to protect "persons other than persons at work" in the workplace, there was no clear positive indication in the 1992 Regulations that the Secretary of State wanted to extend the scope of the 1992 Regulations beyond what had been contemplated in the Workplace Directive.

Further, the court held that the wording of each regulation was dictated by the duty it sought to create as opposed to the identity of the people for whose benefit the regulation was made. The court therefore concluded that the fact that the Regulations referred to the people they sought to protect in a variety of forms did not mean that they applied for the benefit of people other than workers.

Finally, the court held that if the 1992 Regulations were to be construed in the manner suggested by the claimant, this would constitute a considerable change in the law as it would render much of the law relating to occupiers’ liability redundant. These replace occupiers’ duties of reasonable care towards visitors with a strict liability duty would have a considerable impact on commercial enterprises and their insurers.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 14/11/2005.