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Cite as: [2004] ScotCS 44
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Donaldson v. Hays Distribution Services Ltd& Ors [2004] ScotCS 44 (25 February 2004)
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OUTER HOUSE, COURT OF SESSION |
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A382/01
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OPINION OF LORD MENZIES in the cause CANDACE DONALDSON (AP) Pursuer; against (FIRST) HAYS DISTRIBUTION SERVICES LIMITED; (SECOND) CB HILLIER PARKER MANAGEMENT SERVICES LIMITED; AND (THIRD) CB HILLIER PARKER LIMITED Defenders: and NATIONAL BRITANNIA HEALTH & SAFETY LIMITED Third Party
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Pursuer: MacAulay, QC, Dunlop; Drummond Miller, WS (for McLeod & McCallum, Solicitors, Inverness)
Defenders: Gallagher; Bishops (For second & third defenders)
25 February 2004
[1] This is an action for damages for personal injuries averred to have been sustained by the pursuer when she visited the Argos Store at the Eastgate Centre, Inverness on about 27 October 1998. The pursuer avers that the second defenders (or alternatively the third defenders) were the managers of the Eastgate Centre, and took responsibility for the co-ordination and organisation of health and safety matters, and in particular the separation of pedestrian and vehicular traffic within the loading bay area of the Centre. The pursuer further avers that she purchased some furniture from the Argos Store and was told by staff in the store to go to the loading bay area where her purchase would be available to be uplifted. The pursuer entered the loading bay area, in which several vehicles were parked. When she was in the loading bay area, an articulated lorry owned by the first defenders and driven by their employee reversed and collided with the pursuer, crushing her against the wall of the loading bay. The pursuer in the present action seeks damages from the defenders jointly and severally. [2] The matter came before me for debate on the procedure roll, on the first pleas-in-law for the second and third defenders. These pleas were in identical terms, as follows:-"The pursuer having no title to sue these defenders under Workplace (Health, Safety and Welfare) Regulations 1992, the action insofar as directed against these defenders should be dismissed".
The pursuer has cases against the first defenders based on their vicarious liability for the driver of the lorry, and also based on breach of statutory duty, which are not relevant for present purposes. She has no case against either the second or the third defenders based on fault and negligence: her case against these defenders is based solely on their breach of Regulation 17(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Regulations").
The parts of the Regulations relevant for present purposes are as follows:-
"4(1) Every employer shall ensure that every workplace .... which is under his control and where any of his employees works complies with any requirement of these Regulations which (a) applies to that workplace ... and (b) is in force in respect of the workplace ...
(2) .... every person who has, to any extent, control of a workplace ... shall ensure that such workplace ... complies with any requirement of these Regulations which (a) applies to that workplace .... (b) is in force in respect of the workplace ... and (c) relates to matters within that person's control.
17(1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner.
(2) Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.
(3) Without prejudice to the generality of paragraph (2), traffic routes shall not satisfy the requirements of that paragraph unless suitable measures are taken to ensure that (a) ... vehicles may use a traffic route without causing danger to the health or safety of persons at work near it; ... (c) where vehicles and pedestrians use the same traffic route, there is sufficient separation between them".
Submissions for the second and third defenders
[4] Counsel submitted that the Regulations were intended to give effect to the Workplace Directive of 30 November 1989 (89/654/EEC). Where United Kingdom legislation is intended to implement a European Directive, counsel submitted that a purposive interpretation must be adopted so as to give effect to the results envisaged in the Directive. In support of this proposition he referred me to Litster v Forth Dry Dock & Engineering Co Ltd 1989 S.C.(H.L.) 96, Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135, and McGhee v Strathclyde Fire Brigade 2002 S.L.T.680. [5] Counsel submitted that it was clear from the terms of the Workplace Directive that it was concerned with ensuring a better level of protection of the safety and health of workers, and that it was not concerned with the health and safety of persons who were not workers but who happened to visit the workplace. In this regard he referred me to the preamble to the Workplace Directive, which opened with a reference to Article 118a of the Treaty, which related to workers. There are repeated references in the preamble to the aim of ensuring the safety and health of workers -"whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection for the safety and health of workers".... "whereas the communication from the Commission on its programme concerning safety, hygiene and health at work provides for the adoption of a Directive designed to guarantee the safety and health of workers at the workplace" .... "whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health at work is essential to ensure the safety and health of workers" ... "measures to encourage improvements in the safety and health of workers at work".
It was clear from the provisions of the Directive itself that it was aimed at improving the safety and health of workers; this was apparent from e.g. Articles 2, 6, 7, 8 and 10(3). Counsel also referred me to Annex I to the Directive, and particularly to paragraphs 12 (Traffic Routes - Danger Areas) and 14.3 (Loading Ramps). Again it was clear from these provisions that they were intended to protect workers, and not casual visitors to the workplace or non-workers.
[6] Turning to the Regulations themselves, counsel referred me first to the preamble, and submitted that it was important that the Regulations were not made under paragraph 8 of Schedule 3 to the Health and Safety at Work etc Act 1974, which related to the making of arrangements for securing the health of persons at work or other persons. He also drew my attention to Regulation 2(3) which provides that:"any requirement that anything done or provided in pursuance of these Regulations shall be suitable, shall be construed to include a requirement that it is suitable for any person in respect of whom such thing is so done or provided".
Regulation 4, which deals with requirements under the Regulations, is couched in the language of "employer" and "employee"; Regulation 12, which deals with the condition of floors and traffic routes, refers (in paragraph (2)) to exposing "any person to a risk to his health or safety", and in paragraph (3) to causing "a person to slip, trip or fall". Regulation 17 refers to "pedestrians" without qualification in paragraph (1), to "the persons or vehicles using them" again without qualification in paragraph (2) but in paragraph (3)(a) it appears that the danger which is sought to be prevented is danger to the health or safety of persons at work near a traffic route. Counsel submitted that although the Regulations are not wholly free from ambiguity as to whom they seek to protect, applying a purposive interpretation it is clear that they are intended to protect workers.
[7] Counsel told me that the point had been argued in four Sheriff Court cases in recent years, but (at the date of his submission) had not yet been decided in this Court, nor in the English Courts. The Sheriff Court decisions to which he referred were Banna v Delicato 1999 S.L.T. (Sh.Ct.) 84; O'Brien v Duke of Argyll's Trustees 1999 S.L.T.(Sh.Ct.) 88; Layden v Aldi GmbH & Co KG 2002 S.L.T.(Sh.Ct.) 71 and Mathieson v Aberdeenshire Council 2003 S.L.T.(Sh.Ct.) 91. He suggested that O'Brien simply adopted the Court's reasoning in Banna, and added little to it, and that in Mathieson the question did not arise until after a proof, and there had been an implied admission that the Regulations applied, and the defenders had no preliminary plea directed against the pursuer's case. Accordingly he suggested that the different approaches to the Regulations were clearly focused in Banna and Layden. He adopted the argument for the defenders in Layden. [8] Counsel maintained that there was an important distinction between the ambit of Regulations (that is to say, who benefits from the protection of the Regulations) and the stringency of Regulations (that is to say, the standard which an employer must meet in order to comply with the Regulations). He conceded that it was open to the United Kingdom Parliament to make Regulations the ambit of which was wider than that contained in the Workplace Directive, but it was clear that Parliament had chosen not to do so by the omission of any reference to paragraph 8 of Schedule 3 to the 1974 Act as empowering the Regulations. Generally the ambit of the 1974 Act was to protect workers; the exception is to be found in paragraph 8 of Schedule 3 to that Act. The omission of that paragraph was clearly deliberate, and cast light on Parliament's intention which was that the Regulations should not go beyond the general ambit of the 1974 Act. The decision of the Second Division in Cullen v North Lanarkshire Council 1998 S.C.451, including the observation that "it is open to a Member State to make its Regulations more stringent than is required by the Directive", relates to the stringency of Regulations and not to the ambit or scope of the Regulations. He submitted that the sheriff in Banna confused these concepts and fell into error as a result when he held that the reference in Regulation 12(3) to "a person" meant any person and was not restricted to persons working. The sheriff in Layden reached the correct conclusion. Counsel submitted that using a purposive interpretation of the Regulations, by reference to the Workplace Directive, it was clear that the Regulations were intended to provide protection to workers. There was nothing in the Regulations, whether express or by necessary implication, that they should be extended to categories beyond persons working.Submissions for the pursuer
[9] Counsel for the pursuer invited me to repel the first pleas-in-law for the second and third defenders and to allow a proof before answer. He submitted that the pursuer was entitled to the protection of Regulation 17 of the Regulations. The central issue in this case is one of statutory construction. The starting point is to ask what is to ask what is the natural and ordinary meaning of the words in their context. He accepted that for this purpose the context of the words requires consideration of the Regulations as a whole, together with the empowering statute. The natural and ordinary meaning of the words "person" or "pedestrian" in the context of the Regulations is any person or pedestrian; it is not limited to persons at work. [10] Mr MacAulay began his consideration of the context of the words by looking at the Regulations themselves. Regulation 2, which deals with interpretation, does not focus on people but rather on places. Thereafter there were several references which indicated that the scope of the Regulations went beyond workers and included any persons at a workplace. For example, Regulation 7(2) relates to the escape into a workplace of fumes, gas or vapour .... likely to be injurious or offensive to any person, whereas Regulation 7(3) relates to the provision of thermometers to enable persons at work to determine the temperature in any workplace. Regulation 8(3) is clearly aimed only at persons at work; Regulation 11(1) is aimed at any person at work in the workplace, although subparagraph (2)(b) appears to be intended to protect "any person at the workstation". Regulation 12(2) refers to "any person", and Regulation 12(3) refers to "a person". Looking to Regulation 17 itself, paragraphs (1) and (2) refer to "pedestrians" and "persons" without any qualification; this falls to be distinguished from paragraph (3), which refers to both "pedestrians" without qualification and "persons at work". He submitted that it was clear that different regulations had different beneficiaries in mind, and where the word "person" or "pedestrian" is used without qualification it is intended to refer to any person or pedestrian and is not confined to persons at work. If it had been the intention to confine the scope of the Regulations to persons at work, this could easily have been provided - as was done, for example, in Regulation 3 of the Construction (Health, Safety and Welfare) Regulations 1996. There is accordingly no ambiguity on the face of the Regulations themselves, and no justification for construing Regulation 17 as applying only to pedestrians who are working there or other persons at work. [11] Turning to the Workplace Directive, counsel submitted that it was not determinative of the meaning of the Regulations - all that it sought to provide was minimum requirements. In any event, it is not as restrictive as suggested by the defenders. Paragraph 4.3 of Annex 1 was concerned not just with workers, but with the maximum number of persons that may be present. Paragraph 12.2 is concerned with the safety of all pedestrians, not just workers. Similarly paragraph 16 of Annex 2 was concerned with all pedestrians. In any event, the domestic law can legitimately go beyond the Directive, either by making duties more stringent or by broadening the scope of the categories of beneficiaries. He referred me to Charlesworth & Percy on Negligence (10th ed. - 2001) at paragraph 11-107, which expresses the view that "the duties imposed on employers are by reference to the workplace itself rather than those who work in it or the tasks they undertake. Thus the employer who occupies a workplace is equally responsible towards self-employed workers and visitors who are not 'persons employed' ....". He also referred me to Munkman on Employer's Liability (13th ed) at paragraphs 12.07 and 12.12, where a similar view is expressed. [12] Mr MacAulay submitted that Mr Gallagher's point that the preamble to the Regulations makes no reference to paragraph 8 of Schedule 3 to the 1974 Act is misconceived. Although it is true that the preamble does not make reference to that paragraph, it does make reference to the powers conferred by section 15(1) of the 1974 Act. That subsection gives the Secretary of State power to make regulations under section 15 for any of the general purposes of Part 1 of the 1974 Act. Section 1(4) of the 1974 Act provides that "references in this Part to the general purposes of this Part are references to the purposes mentioned in subsection (1) above". Subsection (1) provides inter alia as follows:-"(1) The provisions of this Part shall have effect with a view to -
(a) securing the health, safety and welfare of persons at work;
(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work ....".
It follows therefore that the Regulations are not merely concerned with the health, safety and welfare of persons at work, but are concerned with protecting persons other than persons at work. The decision in Layden is wrong because the sheriff did not appreciate the significance of the reference to section 15(1) of the Act. As an example of other regulations made in exercise of the powers conferred by section 15(1) of the 1974 Act, with no reference to paragraph 8 of Schedule 3, counsel referred to the Prevention of Accidents to Children in Agriculture Regulations 1998 (S.I.1998/3262). These Regulations were clearly designed to protect persons who were not at work (it being illegal to employ children under the age of 14 years, and the Regulations being intended to protect children under the age of 13 years). As another example, counsel referred me to the Control of Major Accident Hazards Regulations 1999 (S.I.1999/743, as amended by S.I.1999/2597); again there was no reference to paragraph 8 of Schedule 3 to the Act, but there was a reference to section 15(1), and the Regulations were clearly intended to benefit members of the public. It cannot therefore be argued that the omission of any reference in the preamble to the Regulations to paragraph 8 of Schedule 3 to the 1974 Act must mean that the Regulations are only concerned with persons at work.
[13] Counsel took issue with the sheriff's approach in Layden, particularly at paragraph 23 of his Opinion. The purposes mentioned in Schedule 3 to the 1974 Act, including paragraph 8 thereof to which the sheriff attached so much weight, derive from section 15(2), which is expressly stated to be "without prejudice to the generality of the preceding subsection". Whether or not a purpose is included in Schedule 3 therefore, the Secretary of State has power by virtue of section 15(1) to make regulations which protect persons other than persons at work. Counsel submitted that the sheriff in Banna had looked at the Regulations as a whole and had adopted the correct approach and arrived at the correct decision. Counsel did not dispute that the Workplace Directive is a major part of the Regulations, but the Regulations themselves are domestic legislation. The Directive provides only for minimum requirements - it is open to the domestic legislature to have laws which are both more stringent and broader in their ambit. The purpose of the Regulations is to protect all persons at a workplace in certain circumstances - unless it is clear that a particular regulation is intended only to confer benefit on persons at work, the natural meaning should be given to the words "persons" and "pedestrians", namely all persons and all pedestrians.Reply for the defenders
[14] Mr Gallagher argued that Mr MacAulay's literal interpretation of the Regulations was wrong, and that the purposive construction for which he contended was the correct way to approach the Regulations. He accepted that it would be open to Parliament to legislate beyond the scope or extent of the Workplace Directive, and that the reference to section 15(1) could give power to the Secretary of State to extend the scope of the Regulations beyond workers. However, if this was the intention, it is surprising that paragraph 8 of Schedule 3 has not been referred to. It is a remarkably circuitous route to achieve such a significant alteration in the domestic law, and it is not an intention that is clearly evidenced by the Regulations themselves. The Regulations are delegated legislation - the construction favoured by the pursuer would affect a very wide range of businesses and workplaces, and standing the fact that the Regulations are a transposing measure, one would expect to see such a dramatic change in the law expressly stated in the Regulations, or at least in an explanatory note.Further procedure
[15] As indicated, after the submissions noted above were made, parties were agreed that it was appropriate to continue the cause on the procedure roll to await the issuing of Lord Drummond Young's Opinion in McCondichie, and thereafter for me to hear further submissions in light of this. I acceded to this joint motion. In that action, the pursuer visited the defenders' surgery and, as she was leaving, slipped on the icy surface of the defenders' car park. She claimed damages from the defenders first under section 2(1) of the Occupiers Liability (Scotland) Act 1960, and second for breach of Regulation 12(3) of the Regulations. After a proof before answer the Court assoilzied the defenders. The arguments for the pursuer in that case as to the applicability of the Regulations to non-workers were in many respects similar to the arguments advanced before me; for the reasons which he gave (principally at paragraphs 18 to 24 of his Opinion) Lord Drummond Young reached the view that the Regulations (and in that case in particular Regulation 12) did not extend beyond workers to visitors generally. [16] Counsel for the pursuer attacked Lord Drummond Young's reasoning in four respects. First, with regard to paragraph [18] of his Opinion, counsel submitted that Regulation 2(1) gives no assistance as to the classes of persons which the Regulations are intended to benefit. Regulation 2(1) is only concerned to define places, and sheds no light on the categories of persons who may be at those places and who may benefit from the Regulations. Second, the natural meaning of "any person" covers all persons; unless there is, as a matter of statutory construction, a reason to limit the meaning, one should adopt the natural and ordinary meaning of the words. A linguistic analysis of the Regulations, contrasting the use of "persons" with "persons at work", shows that the Regulations are not limited to persons at work. Third, with regard to the reasoning in paragraph [19] (in which Lord Drummond Young found a significant pointer to support his view from the preamble to the Regulations) it did not appear that any submission had been made in that case equivalent to Mr MacAulay's submission regarding sections 15(1) and 1(1) of the 1974 Act. When those sections are considered, the point has no force. Fourth, with regard to the point made in paragraph [22] that such a major extension to the legal liabilities of employers should not be left to implication, Mr McAulay submitted (a) that this is not a matter of implication - it is an express provision of the Regulations that they cover persons other than persons at work; and (b) the Regulations impose not only civil but criminal liability on employers to keep a workplace safe, and Parliament has not sought to exclude visitors from the protection of the Regulations. The Regulations have sought to sweep away the fine distinctions of the former law. For these reasons Mr McAulay invited me not to follow Lord Drummond Young's approach. [17] Unsurprisingly, Mr Gallagher took the view that Lord Drummond Young was correct. He submitted that Mr McAulay's starting point was wrong; the Regulations are a transpositional measure, and the starting point for any exercise in construction must be the Workplace Directive. A purposive construction must be given both to the Directive and to consequent Regulations. It would be a major change of legal policy to have a "two tier" system of occupier's liability. One would expect such a major change to be addressed in primary legislation, and not by means only of health and safety regulations. Moreover, one would expect some overt notice to be given of this major change, which is lacking in the Regulations. The exercise of contrasting one regulation with another, and of seeking to rely on the natural meaning of the words themselves, is not an acceptable approach to the interpretation of a measure such as this. Counsel for the pursuer had been unable to show that the purpose of the European legislation underlying the Regulations extended beyond the ambit of the welfare of persons at work. Finally, counsel drew my attention to an English decision which he claimed supported the view which he urged on me, and adopted the same reasoning as Lord Drummond Young's, namely Ricketts v Torbay County Council [2003] 7 C.L.196.Decision
[18] I am in such complete agreement with the views expressed by Lord Drummond Young in McCondichie that I can give my decision on this issue relatively briefly. Despite the persuasive submissions by counsel for the pursuer, I do not consider that the Regulations extend to persons other than workers. My reasons for reaching this view may be summarised as follows:-(a) The Regulations are intended to implement the Workplace Directive, which is clearly concerned only with the health and safety of workers, and not with the health and safety of persons who happen to be at or passing through the workplace but are not themselves workers.
(b) The Workplace Directive provides only minimum standards - it is open to a domestic legislature to pass laws which are more stringent than the requirements of the Directive.
(c) The Regulations do not expressly state that they are intended to be more stringent than the Workplace Directive, nor that they are intended to go beyond it in any way.
(d) The change in our domestic law which would be effected by the adoption of the construction of the Regulations contended for by the pursuer would be extremely important. It would have enormous consequences for almost all employers, and have a very significant effect on insurers. Almost all areas of the United Kingdom (with the exception of domestic premises) fall within the definition of a workplace - that is to say, they are a place of work for somebody. If the pursuer's argument is correct, all of these places are subject to the Regulations, both for workers and for non-workers, with the result that the provisions of the Occupiers Liability (Scotland) Act will be superseded for many practical purposes by a more stringent set of duties. Not only the visitor to a car park, but the walker exercising his right of access over farmland or moor would be in a workplace and so entitled to the protection of the Regulations. It would be a surprising way of bringing about such an important and radical change to our laws to do so by means of Regulations called the Workplace (Health, Safety and Welfare) Regulations which appear to be concerned with the implementation of the Workplace Directive.
(e) The appropriate way to construe the Regulations is to adopt a purposive interpretation, not a literal interpretation. The thorough examination and comparison of the language used in the various paragraphs of the Regulations, which was the method favoured by counsel for the pursuer, may have been the appropriate and traditional method of construing statutes and regulations in the past, but I am not persuaded that it is necessarily the most appropriate method to construe transposing regulations based on European legislation.
(f) In any event, I think that counsel for the pursuer places too much emphasis on the reference to section 15(1) of the 1974 Act in the preamble to the Regulations. While it is true that Regulation 15(1) provides a general power to make regulations for any of the general purposes of Part 1 of that Act, which is capable of being construed as referring, through section 1(4) to the purpose referred to in section 1(1)(b) of protecting persons other than persons at work against risks to health or safety, this does not appear to me to advance the pursuer's argument very far, because another general purpose of the Act is securing the health, safety and welfare of persons at work. The mere reference to section 15(1) in the preamble to the Regulations does not make it clear which of these general purposes is being relied on. By contrast, the rest of the provisions conferring power on the Secretary of State and referred to in the preamble to the Regulations - including the particular powers conferred in paragraphs 1(2), 9 and 10 of Schedule 3, which deals with the subject matter of health and safety regulations - are clearly intended to provide protection for persons at work. Taking the references in the preamble to the Regulations to the empowering provisions as a whole, I am left with the clear impression that the power which the Secretary of State was exercising was a power to make health and safety regulations for persons at work.
[19] For these reasons I do not consider that the pursuer in the present case is entitled to the benefit of the Regulations, and neither the second nor the third defenders were under any statutory obligation to her by reason of Regulation 4 or Regulation 17. The pursuer's case against each of these defenders is based solely on breach of the Regulations. She has no title to sue either defender under the Regulations, because no civil liability is imposed on either the second or third defenders by reason of the Regulations. Accordingly I shall sustain the first plea-in-law for each of the second and third defenders and dismiss the action insofar as directed against them.