PROVING THINGS 181: THE ART GALLERY, THE MILKMAN AND THE 1992 REGULATIONS…

It is rare for this blog to look at Scottish cases. However the judgment of the Sheriff Appeal Court in APPEAL BY ANDREW WRIGHT v NATIONAL GALLERIES OF SCOTLAND [2020] ScotSAC Civ 6 raises an issue that is common to lawyers in England and Wales.  That is the relevance of the “six pack” Regulations governing health and safety at work after the abolition of the action for breach of statutory duty brought about by the Enterprise and Regulatory Reform Act 2013.  This case makes it clear that the Regulations “directly inform” the parties and the court as to the nature of the duty of care owed under the Workplace (Health, Safety and Welfare) Regulations 1992.

 

“The proposition that following the enactment of the Enterprise and Regulatory Reform Act 2013 breaches of duties imposed by health and safety regulations are no longer actionable is correct. Nevertheless, the regulations remain a source of statutory duties with which employers and occupiers require to comply.”

“The regulations may not add a separate distinct case to the pursuer’s case at common law; however, they directly inform both the defender and the court as to the defender’s duty of care to those working at the gallery and visitors.”

The Workplace (Health, Safety and Welfare) Regulations 1992

These Regulations impose duties not only on employees using a workplace

“(2) Subject to paragraph (4), every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirements of these Regulations which—
(a)applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion;
(b)is in force in respect of the workplace, modification, extension, or conversion; and
(c)relates to matters within that person’s control.
(3) Any reference in this regulation to a person having control of any workplace, modification, extension or conversion is a reference to a person having control of the workplace, modification, extension or conversion in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”

REGULATION 17

“Organisation etc. of traffic routes
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)pedestrians or, as the case may be, vehicles may use a traffic route without causing danger to the health or safety of persons at work near it;
(b)there is sufficient separation of any traffic route for vehicles from doors or gates or from traffic routes for pedestrians which lead onto it; and
(c)where vehicles and pedestrians use the same traffic route, there is sufficient separation between them.
(4) All traffic routes shall be suitably indicated where necessary for reasons of health or safety.
(5) Paragraph (2) shall apply so far as is reasonably practicable, to a workplace which is not a new workplace, a modification, an extension or a conversion.

THE CASE

The pursuer (claimant) was a milkman. For many years he had been delivering milk to the Scottish National Portrait Gallery.  Milk was delivered through a rear door, being transported in a cage, and then placed in a fridge inside the building.  Two days before the pursuer was injured the route was changed so the claimant had to use a front door. On the second day after the change the pursuer was using the cage for the first time since the change. Unbeknown to him there was a step in one of the corridors he was using. The cage went down the step and the incident caused him injury.  He brought proceedings at failed at trial.  However on appeal to the Sheriff Appeal Court the pursuer was successful.  One of the grounds of success was the sheriff’s failure to take into account the duty owed under the 1992 Regulations.

THE JUDGMENT

“The next question is the nature and extent of the duty of care owed by the defender to the pursuer and whether that duty has been breached. Assessment of the existence, nature and extent of the duty is not an abstract legal concept but relies on the factual matrix arising from the evidence.
[28] The sheriff, in the context of his reasoning on the 1992 Regulations, concludes at paragraph [35] that “In this case, the precise terms or basis on which Heritage occupied the café and related premises has not been proved. But neither has it been proved to what extent to which (sic) the defender, as owners of the gallery, retained the power to alter the workplace and the things in it so as to comply with the regulations. In my view, this is not a matter which can be decided simply on the basis of inference. It is a matter which requires to be proved and in this case it has not been. Accordingly, I hold that it has not been established that the duty to comply with the regulations in relation to the existence and configuration of the step was placed upon the defender”.
[29] The sheriff makes these observations in the context of a discussion of the extent to which the regulations are applicable to the factual situation in this case. If not applicable, they are of little or no value given that the pursuer pleads a case based on common law and
also the 1960 Act. To a significant extent the sheriff’s conclusion on this point depends on his settled view as to the defender’s limited control of the gallery. If applicable, “then they may very well be useful in assessing the nature and scope of a defender’s duties at common
law”. The proposition that following the enactment of the Enterprise and Regulatory Reform Act 2013 breaches of duties imposed by health and safety regulations are no longer actionable is correct. Nevertheless, the regulations remain a source of statutory duties with which employers and occupiers require to comply. This appears to have been accepted by the court in Gilchrist v Asda [2015] CSOH 77 – a case where the court found there to be no breach of any duty by the employer – and also in Mullen (supra).
[30] It is unnecessary to examine the 1992 Regulations in detail. Regulation 17 is clearly concerned with pedestrian safety as well as vehicular routes. It applies to both and not solely to the situation where pedestrians and vehicles may be using or co-existing on the same traffic route. When delivering to the café the gallery becomes the pursuer’s workplace (see para [33] and [34]) and how he gets about the gallery is a matter which his employers and occupiers of premises must take measures to organise in a way that is suitable and safe. By limiting his analysis of the defender’s control to merely ‘an element of control’ the sheriff has fallen into error. He fetters his assessment of the defender’s overall control of the gallery and ability to alter the workplace in light of health and safety regulations. There is a general duty of care on an occupier towards those who are lawfully on the premises. An occupier has a duty to take reasonable steps to ensure the safety of visitors on the premises. The argument deployed by the defender on record and before the sheriff had the objective of deflecting responsibility onto Heritage Portfolio (and Mr Wright’s employers). This appears to have led the sheriff to elevate Heritage Portfolio’s concurrent occupation of the café and kitchen into what appears from his reasoning in paragraph [35] to be an equal or possibly superior control of and responsibility for the café and kitchen area. Both entities may have control over the café and kitchen area. It appears to have led the sheriff to become diverted from a full and proper analysis of the defender’s occupation and control of the entire gallery and the consequential duties of care incumbent on the defender.
[31] It is not necessary to examine the café operator’s powers and duties as occupier when the action is directed against the entity with complete control of the gallery, certainly during the hours when both the gallery and café are closed. Ultimately, the sheriff concludes that
the case pled in terms of both the 1992 Regulations and the 1960 Act does not add anything to the pursuer’s common law case. However, the sheriff’s analysis of the extent of the defender’s control of the gallery and its consequential obligations at common law proceeds
on a misapplication of the facts which he found established on the evidence. In other words, the error as to the nature and extent of the defender’s control of the gallery has impacted on the sheriff’s approach to the defender’s obligation to address foreseeable risks to those
making deliveries when the gallery altered the system of access.
[32] Had the sheriff recognised the extent of the defender’s control of the locus at the material time that would have informed him of the nature and extent of the duty of care incumbent on the defender as occupier in terms of Regulation 17. The regulations may not add a separate distinct case to the pursuer’s case at common law; however, they directly inform both the defender and the court as to the defender’s duty of care to those working at the gallery and visitors. If Regulation 17 is engaged, as it appears to us to be, it points to there being a duty imposed on the defender to consider suitable and safe access or traffic routes within the gallery. The gallery knew that the rear corridor might be used for deliveries and therefore as a traffic route by those such as the pursuer. The sheriff ought not to have rejected the argument advanced by the pursuer’s counsel as to the impact and effect of the regulations and in reaching the view he expresses at paragraphs [35] and [36] concluding “in short, it is not proved the defender knew or should have known that the pursuer was likely to use that route. For these reasons, I do not consider that the 1992 Regulations can add anything to the pursuer’s case” the sheriff has misdirected himself
as to the relevance of the 1992 Regulations.
[33] It follows that this court may examine the extent of the defender’s knowledge and its obligations to the pursuer. The points in dispute being the proper inferences to be drawn from proved facts and the application of legal principles to those facts it follows that an
appeal court is well placed to undertake that analysis. The critical event was the defender’s decision to alter the system by which deliveries are made to the gallery. The defender did not want employees going to the rear fire exit during the hours of darkness as they had security concerns. There is not only a reasonable inference to be drawn that the defender knew about the previous longstanding practice of using the rear fire exit for deliveries but its employees were part of that system. In the specific instance of the pursuer and his deliveries of dairy products it was known that he used the rear fire exit conveniently located close to and on the same level as the fridge into which the milk would be placed. Accordingly, this knowledge can be attributed to the defender. The change in access arrangements was principally concerned with avoiding people, such as the pursuer, coming to the rear fire exit as the gallery attendants would then have to go, sometimes alone, in the hours of darkness to open that door. This is acknowledgement that the defender was fully aware that deliveries were made via the rear exit all as explained in findings in fact [14] and [15]. When the defender altered the access arrangements the requirement to consider how to organise pedestrian routes in a way that is safe was engaged. That does not appear to have happened. At best the arrangement was ad hoc. The new system appears to have been considered only to the extent that the delivery would be made by allowing access to the
gallery by the front entrance (finding in fact [17]). The day prior to the accident was day one of the altered access arrangement. On that occasion, the pursuer had no wheeled cage, but instead was carrying a plastic tray which he was instructed just to leave on the café counter
(finding in fact [22]). He had no requirement to access the kitchen or the rear corridor from the kitchen. However, on the day of the accident the pursuer was allowed access by the defender’s attendants into the café area with the wheeled cage. He knew there was a kitchen
behind the counter area with a door leading to the fridge corridor. He had not been in the kitchen area before and did not know about the step. The accident then occurred as described.
[34] The sheriff’s reliance on the chain of communication between the defender’s duty manager, the café manager and Graham’s does not, in our view, advance matters for the defender. In keeping with our analysis of the altered access arrangements the defender’s consideration of the new access arrangements did not extend beyond the requirement to use the front entrance rather than the rear. Whatever duties may have been incumbent upon the pursuer’s employers or the café operators the defender remained in total control of the gallery and access routes within the gallery. The defender’s failure to consider safe pedestrian traffic routes clearly brought the step into play. Had the defender considered the end place for the pursuer’s delivery they would have realised that either he had to negotiate a step or would require to be escorted to the rear fridge corridor via the west corridor as appears to have happened following the accident. At this point we address the argument advanced on behalf of the defender that the pursuer has failed to show that he was prevented from using the west corridor to access the fridge. It was suggested that the pursuer could not rely on that alternative level route not being available to him. He had not proved that the security door in the west corridor was locked in which case he could have used that safer route. Much emphasis was placed on this argument by the defender. However, we reject that contention. There is no factual basis to suggest that the pursuer had any knowledge of this means of access. If it was considered a safer route to the fridge he ought to have had it pointed out to him. He had no reason or opportunity to know of the west corridor route. We have a complete record of the pursuer’s deliveries to the gallery since the access point changed. The gallery attendants were best placed to advise him whether he could use that route on his own or whether he required to be escorted to negotiate the security controlled door to the fridge corridor. The day of the accident was the first occasion the pursuer required to push the cage to the fridge from the front of the gallery. Although the sheriff rejected the vicarious liability case he narrates the evidence of
the two gallery attendants at paras [51] to [60]. The male attendant (Hallcroft) was well aware that the pursuer was heading to the fridge to deposit the milk. He thought the pursuer would use the west corridor route which might have been suitable if the door had
been left open otherwise he would have had to return to ask one of the attendants to swipe him through. No reason is given why he thought the pursuer would take that route. The female attendant was of the view that all deliveries of milk were to be left on the café counter (as had happened the day before). The conclusion to be drawn from the evidence of these employees is that there was no clear understanding of what the system for access with the milk delivery was. The inference which can reasonably be drawn is that no consideration had been given to how the delivery was to be made safely.
[35] As the sheriff acknowledges, any step is a hazard and in this case a hazard which could have been avoided by using the alternative route or mitigated by means of a warning notice or ramp. The sheriff’s reliance on there being no record of any prior accident  involving the step is somewhat perplexing given that the means of access had altered only the day prior. The defender was aware that the pursuer required to use a wheeled cage(finding in fact [13]). The sheriff tacitly accepts that had the defender known that the fridge corridor had to be accessed this would have put the defender on notice that the kitchen might be used as a route which would then have created an obligation to consider whether that could be done reasonably safely. Despite making findings in fact [14] and [15] the sheriff rejects the proposition that the defender knew or ought to have known that the pursuer would require access to the fridge. Mr Hallcroft did not appear to have had much
doubt that the pursuer was going to the walk-in fridge. Gallery attendants had in the past assisted the pursuer by holding the fridge door open for him. The absence of this specific knowledge on the part of the defender appears to be the de quo of the sheriff’s reasoning in finding that there was no duty on the defender to consider how deliveries could be made safely. In that regard we consider that the sheriff erred. The conclusion he draws is inconsistent with the facts which point to there being a duty on the defender to take reasonable care for those entering the premises during the hours of darkness to make deliveries including deliveries of dairy produce. The defender had the requisite knowledge as to the end point for the pursuer’s delivery and ought to have considered how the fridge could be accessed safely having regard to its common law duties as informed by the 1992 Regulations.
[36] For the reasons given, we will allow the appeal, recall the sheriff’s interlocutor of 28 February 2019 and grant decree in favour of the pursuer in the sum of £1,875 with interest at the judicial rate of eight per cent per annum from 5 February 2019. The pursuer is entitled to the expenses of process before the sheriff and also the expenses of the appeal procedure.
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