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  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).”
“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 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.