Public cannot sue under Workplace Regulations
15 Jun 05
Appeal court rejects customer's claim and settles differences between earlier cases
A member of the public who is not a "worker" at premises which constitute a workplace but who sustains injury there, has no ground of action under the Workplace (Health, Safety and Welfare) Regulations 1992.
The ruling, delivered yesterday by the Court of Session's Inner House, settles a difference of opinion between a number of cases in lower courts in recent years.
The court was hearing an appeal by Candace Donaldson against the dismissal of her claim against two defenders in an action brought after she was injured by a reversing lorry. Ms Donaldson alleged she had been crushed between the lorry and a loading bay while at the Eastgate Centre, Inverness, as a customer, and claimed that the operators of the loading bay were in breach of duty under the 1992 Regulations.
The Regulations, which were passed to implement the EU's Workplace Directive, have caused difficulty because in various places they simply refer to the health or safety of "persons" without making clear whether "persons" include those who are not workers. Colin Macaulay QC for Ms Donaldson argued that although the Directive was clearly concerned with the protection of workers, it was open to Parliament to confer additional protection, and looking at the plain language used it had done so.
Lord President Cullen, Lord Macfadyen and Lady Cosgrove disagreed. Lord Macfadyen, speaking for the court, accepted that it would be open to Parliament to extend the protection of the Regulations to non-worker visitors, but "we do not consider that an intention to do that should be readily inferred. On the contrary, it seems to us that recognition of the purpose of the European legislation, while not operating as an absolute limit on the scope of the implementing domestic legislation, operates as a clear pointer in favour of construing the latter as being co-extensive in application with the former".
He added that the fact that the Secretary of State had power under the Health and Safety at Work Act to make regulation for the protection of non-workers, and the preamble to the Regulations might be read as including a reference to that power, was not an adequate indicator of any intention to make the Regulations substantially wider in application than the Directive.
After examining the wording used and the various decisions cited, the court ruled: "we conclude from:
(i) the fact that the Workplace Regulations were enacted to give effect in the United Kingdom to the Workplace Directive, which applies exclusively for the protection of workers;
(ii) the absence of any positive indication in the legislation that it was intended that the Workplace Regulations should afford protection to those coming onto premises as visitors and not workers; and
(iii) 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 a sound construction of the Workplace Regulations in the relevant context they afford no protection to persons present in a workplace as visitors but not as workers".
He concluded by pointing out that visitors to premises continue to be protected by the law relating to occupiers' liability.
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2005CSIH48.html .