Scottish Court of Session Decisions

Section 1 of the 1974 Act provides inter alia as follows:

Section 15(1), read with section 1(1)(b) and (3), made it clear, Mr McAulay submitted, that the Workplace Regulations, made as they were under section 15(1), could properly confer protection on persons other than persons at work against risks of the sort identified in section 1(1)(b) and (3). It did not matter that the particular provisions of Schedule 3 mentioned in the preamble to the Workplace Regulations (paragraphs 1(2), 9 and 10) did not support the application of regulation 17 to non-workers. It was unnecessary to refer to section 15(2) and Schedule 3. Sections 15(1) and 1(1)(b) were sufficient. There was nothing in the preamble to the Workplace Regulations to preclude the interpretation of regulation 17 advanced by the pursuer.

In O'Brien v Duke of Argyll's Trustees 1999 SLT (Sh Ct) 88, another regulation 12(3) case, where the pursuer was a customer in an inn, Sheriff Herald followed Sheriff Morrison. In Layden v Aldi GmbH & Co. KG 2002 SLT (Sh Ct) 71, Sheriff Ross took a different view. That was again a case under regulation 12(3) in which the pursuer was a customer in a shop. Sheriff Ross held that "person" meant a person who was working in the workplace. His reasoning, in part, was that the reference to "a person" was to define the extent of the risk, not the identity of the persons to whom the duty was owed; the regulation required floors to be kept free from a certain sort of article or substance, namely those "which may cause a person to slip, trip or fall" (paragraph [19], page 76F-G). Mr McAulay submitted that that reasoning could not be applied to regulation 17. Sheriff Ross also rejected the submission that section 1(1)(b) of the 1974 Act meant that the reference in the regulation to "a person" showed that the regulation benefited any person present, whether working or not. He said (at paragraph [23], page 77F):

The fourth case was Mathieson v Aberdeenshire Council 2003 SLT (Sh Ct) 91, a case under regulation 13 (measures to be taken, so far as reasonably practicable, to prevent certain events, including "[any] person falling a distance likely to cause personal injury"). The pursuer suffered injury in a fall at a local authority re-cycling centre. Sheriff Buchanan held that the defenders' submission that the regulation did not apply to the pursuer was precluded by their pleadings, but obiter expressed agreement with Banna and O'Brien and disagreement with Layden (paragraph [3], page 93C). Finally, in Fagg v Tesco Stores Ltd (9 July 2004, unreported), Sheriff Ireland too agreed with Banna and O'Brien and disagreed with Layden. The tally of Sheriff Court cases was therefore four to one in favour of the construction contended for by the pursuer.

A similar view is expressed in Munkman on Employer's Liability, 13^th Edition, at paragraph 12-07, where Banna is cited. At paragraph 12-12, it is noted that some individual regulations refer to "any person at work", and the view is expressed that:

That analysis, Mr McAulay submitted, could not be applied to the language of regulation 17. Mr McAulay then turned to paragraph [19] in which Lord Drummond Young pointed out that the particular provisions of Schedule 3 to the 1974 Act mentioned in the preamble to the Workplace Regulations were all concerned with the position of persons at work, and took that as a pointer to the view that the Workplace Regulations only operate for the benefit of persons at work. Mr McAulay submitted that that analysis too was flawed. The only reference to 'other persons" in Schedule 3 was in paragraph 8, and that had no application to the Workplace Regulations. Mr McAulay took no issue with Lord Drummond Young's view, in paragraph [21], that the Workplace Directive was concerned only with the health and safety of workers. In paragraph [22] Lord Drummond Young drew attention to the very far-reaching consequences of construing the Workplace Regulations as benefiting any person present in the workplace. He said:

Mr McAulay's response was to say that his submissions were concerned with the plain language of the Workplace Regulations, and not the implications of giving effect to that plain language.

Regulation 3(4), which excluded any workplace which is in fields, woods or agricultural land, provided otherwise. Secondly, in paragraph [18](e), he had expressed a preference for purposive rather than literal construction, without explaining how in the circumstances that preference helped resolve the issue in the present case. Thirdly, in paragraph [18](f), he had failed to take proper account of the ramifications of the reference to section 15(1) of the 1974 Act in the preamble to the Workplace Regulations.

On the contrary, he submitted, the reference to section 15(1), which in turn referred to "any of the general purposes of this Part", was an indirect reference to inter alia section 1(1)(b). That error undermined the point made by Auld LJ in paragraph 12 to the effect that nothing in the 1974 Act showed that the Regulations apply equally to employees and to others who might lawfully be on the employer's premises. For the same reason paragraph 16 was erroneous. In paragraph 17, Auld LJ said:

Mr McAulay submitted that that observation was at odds with the views expressed in Charlesworth and Munkman, and in McCully, and was erroneous.

Article 16 of the Framework Directive (89/391/EEC) made provision for the adoption of individual directives in the areas listed in the Annex, which included workplaces. The Workplace Directive referred in its preamble to Article 118a and to the Framework Directive. Article 1 of the Workplace Directive narrates that it "lays down minimum requirements for safety and health at the workplace". The pursuer accepted that the Workplace Directive was designed to afford protection only to workers. The Workplace Regulations were enacted to implement the obligations of the United Kingdom under the Workplace Directive. One of the vehicles used for that purpose was the power conferred by section 15(1) of the 1974 Act, but it did not follow that the purpose of the Regulations was to provide protection for all those for whose protection provision might competently be made under inter alia section 1(1)(b) of the Act. The provisions of Schedule 3 referred to in the preamble to the Regulations (paragraphs 1(2), 9 and 10) did not suggest the extension of protection to non-workers. Section 47(2) of the Act did nothing to clarify to whom the duties under the Regulations were owed. The European background was unambiguously directed towards the protection of workers. There was nothing in the reference to the 1974 Act in the preamble to the Workplace Regulations to suggest that the scope of the Regulations was different.

That reasoning, Mr Ellis submitted, was applicable to the Workplace Regulations as a whole. The Lord Ordinary in the present case had rightly adopted that approach (although it was accepted that his example of the walker over farmland or moor was undermined by regulation 3(4)). Mr Ellis also drew support from Ricketts, paragraph 12, and from Layden. Of the sheriff court cases which were against his submission, only Banna and Fagg contained substantive reasoning. In them, the sheriffs went wrong by attempting to find a plain meaning for the word "person" without proper regard to context. McCully could be distinguished, because it was concerned with a visitor who was working in the workplace, not (as here) with a visitor who was not a worker there.

The context in which such a purposive approach to the interpretation of domestic legislation is normally necessary is, however, where conventional construction might result in the domestic legislation falling short of implementing fully the European legislation (as, for example, in Litster). That is not, however, the situation which arises in the present case. It is not disputed that the Regulations fully implement the Directive. There is no need to resort to purposive construction of the Regulations to achieve that end. The question is thus whether purposive construction has any part to play in limiting the application of the Regulations to implementation of the Directive, and excluding the application of the Regulations to situations not covered by the Directive. We do not think that the fact that the purpose of the Directive which the Regulations seek to implement was one limited to a particular class of beneficiaries has the result that the Regulations must be construed as benefiting only that class of beneficiaries. It is open to Parliament to go further, at least in some respects, than the Directive requires. As was pointed out in Cullen at 455, "it is open to a Member State to make its regulations more stringent than is required by the Directive". That is not, however, precisely the position contended for by the pursuer in the present case. She argues not for a higher standard of protection than the Directive requires, but for the application of the same standard of protection as applies to workers, with whom the Directive is concerned, to the class of non-worker visitors, with whom it is not. We accept 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.

1. 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;
2. 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
3. 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. That does not mean that such persons are left unprotected. They continue to have the protection afforded to visitors to premises by the antecedent, and subsisting, law relating to occupiers' liability.