APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 2706/98
OPINION OF THE COURT
delivered by LORD COULSFIELD
JAMES CALLANDER AND SONS LIMITED
PROCURATOR FISCAL, Falkirk
Appellant: Shead; Aitken Nairn
Respondent: Cathcart, A.D.; Crown Agent
22 July 1999
The appellants appeal against their conviction on 27 July 1998 at Falkirk Sheriff Court on a charge of contravention of the Provision and Use of Work Equipment Regulations 1992, regulation 22 and section 33(1)(c) of the Health and Safety at Work Act 1974.
The charge arose out of an incident on 11 November 1997 when one of the appellants' employees in their sawmill at Falkirk was injured while working at a Stenner VHR 48 band resaw. The sheriff finds,
"2. A maintenance operation in practice at the appellants' said premises at the time and as instructed to the said Raymond McNaughton Paterson included the manual cleaning of resin from the pulley next to the saw blade of said machine whilst the blade was continually running by means of a metal scraper about 18 inches in length. The said maintenance operation to clear resin involved the operator, including Mr Paterson, putting the said metal scraper into the area of the pulley and blade whilst it was still running to remove the accumulation of resin being built up. The said Stenner machine was not at the material time constructed or adapted so as to make the said practice unnecessary. It would have been reasonably practicable to fix such a construction or adaptation to the machine as was subsequently done after 11 November 1997."
The sheriff finds that the maintenance operation as so described involved a risk to the health and safety of operators and further finds,
"4. A stop mechanism was fitted to the said equipment such as would have enabled the blade to have been stopped during the removal or scraping of resin, but such practice was not adopted by the appellants as it would have necessitated the continuous sawblade stopping throughout the whole of the sawmill premises at the same time."
The sheriff finds that the operator Paterson was injured and that the operation of using the metal scraper was a maintenance operation within the meaning of the Regulations. To complete the picture, it appears from the sheriff's narrative of the evidence that the area between the pulley and the blade on the Stenner machine regularly became clogged with accumulated sawdust resin which had to be removed; that it was not the practice for the stop button to be used because the result would have been that every other saw in the whole premises would be simultaneously stopped; and that there was evidence that since the accident a metal scraper had been fitted to the machine and that in other respects the machine had been modified so that it was no longer necessary to clean the blade in the manner in use at the time of the accident.
Regulation 22 is headed "Maintenance operations" and provides,
"Every employer shall take appropriate measures to ensure that work equipment is so constructed or adapted that, so far as is reasonably practicable, maintenance operations which involve a risk to health or safety can be carried out while the work equipment is shut down or, in other cases -
(a) maintenance operations can be carried out without exposing the person carrying them out to a risk to his health or safety; or
(b) appropriate measures can be taken for the protection of any person carrying out maintenance operations which involve a risk to his health or safety."
The 1992 Regulations were made pursuant to the European Communities Council Directive of 30 November 1989. Article 4 of the Directive requires inter alia that work equipment provided to workers in an undertaking should comply with the minimum requirements laid down in the Annex to the Directive. Paragraph 2.13 of the Annex provides,
"It must be possible to carry out maintenance operations when the equipment is shut down. If this is not possible, it must be possible to take appropriate protection measures for the carrying out of such operations or for such operations to be carried out outside the danger zones."
This case raises a short point of construction of regulation 22. It was submitted to the sheriff, both as part of a no case to answer submission and at the conclusion of the case, that the appellants had complied with the regulation in respect that the machine was capable of being shut down for a maintenance operation such as clearing the accumulation of resin; and therefore that the machine was so constructed that the operation could be carried out with the machine stopped and the regulation had been complied with. The sheriff rejected that submission. He points out, among other things, that, if there were a shut down button somewhere in the factory for the equipment then, on the appellants' construction of the regulation, the regulation would be complied with even if the existence of the button was entirely disregarded in practice. The sheriff also points out that in evidence given for the appellants after the submission had been rejected, it was explained that a metal scraper had been fitted to the machine since the accident and that the operation formerly performed was not now required. The sheriff took the view that, in the circumstances, the equipment was not so constructed or adapted as to comply with the regulation.
The same submission was made to us as was made to the sheriff. It was submitted that the regulation was clear in its terms, that it was directed only to the construction of the machine and that heads (a) and (b) of the regulation, on their terms, only came into operation where the principal provision of the regulations, requiring that it should be possible to carry out maintenance operations while the equipment was shut down, was not applicable. In the present case, therefore, the appellants had complied with the regulations.
In our view, the sheriff reached the correct result on the particular facts of this case. The regulation requires that equipment should be so constructed or adapted that maintenance operations can, so far as reasonably practicable, be carried out while the machine is shut down. In considering whether that regulation is or is not satisfied, it seems to us that it is not sufficient to look at the construction of the machine in a vacuum but that it is necessary to have regard to the whole circumstances in which it is used. In the present case, the effect of operating a stop button would have been to stop the work of the entire sawmill. On the evidence, it was not the practice to stop the entire sawmill to carry out this simple maintenance operation, as is hardly surprising. That being so, the appellants had, in a practical sense, not provided a machine which could be stopped to carry out the maintenance operation, given the circumstances of the factory or sawmill as they were. In view of the fact that steps have since been taken, of a relatively simple nature, to make the operation safe, it is in our view plain that it would have been reasonably practicable to comply with the regulation. In the whole circumstances the appeal on conviction must fail. We shall, therefore, answer questions 1 and 2 in the stated case in the affirmative and refuse the appeal. Question 3 as stated, might raise issues going beyond those required for the decision of this case, and we do not think it necessary to answer it.