The Work at Height Regulations 2005

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This article reviews Harsukhray Bhatt v Fontain Motors Limited (2010) EWCA Civ 8631 (“the Bhatt Case”) a recent case dealing with The Work at Height Regulations 2005 (“the Regulations”).

 

The Regulations

The Regulations, which came into force on 6 April 2005, provided detailed guidance for work at height with the aim of reducing the number of work place injuries connected with falls from height. According to official statistics over 4,000 employees sustained a major injury from a fall from height during 2008/09.

 

The main component parts of the Regulations are as follows.

 

Regulation 4

Employers must ensure that work at height is:

- Properly planned;
- Appropriately supervised; and
- As so far as reasonably practicable carried out in a safe manner.

 

Regulation 5

Employers must ensure that nobody undertakes any activity, including organisation, planning and supervision, unless they are competent to do so or, if being trained, supervised by a compentent person.

 

Regulation 6(2)

Employers must ensure work is not carried out at height where it is reasonably practicable to carry out the work in a different manner.

 

Regulation 7(2)

An employer shall select work equipment which, taking into account a number of specified factors, is suitable for work at height.

 

The facts in the Bhatt Case

Mr Bhatt worked for a car dealership, Fontain Motors Limited (Fontain). On the business premises Fontain stored various car bumper kits in a loft space. In order to access the loft space a system was instigated by Fontain’s Managing Director (“MD”) under which the long ladder required was to be footed when used and access was to be restricted to the MD, Mr Bhatt and one other person.

 

On 7 November 2005, whilst trying to access the loft, Mr Bhatt fell and sustained injuries.

 

The Decision

At first instance the Judge held that the accident had resulted from breaches of the Regulations. Specifically:

- There had been a breach of Regulation 5 as MD was not competent to engage in organisation and planning in relation to work at height;
- There was a breach of Regulation 6(2) because it was reasonably practicable for the car bumper kits to be stored elsewhere; and
- That there had been a breach of Regulation 7(2) because, if the loft had been a serious storage area, a pull down ladder should have been installed.

 

The Judge further held that Mr Bhatt’s claim should be reduced by 1/3 for his contributory negligence on the basis that he had used the ladder without it being footed, despite knowing this was in breach of Fontain’s system and that if he had waited someone would have footed the ladder for him.

 

The Appeal

Fontain appealed, advancing the following arguments:

- Mr Bhatt had ignored Fontain’s system of work and was therefore wholly to blame for the accident; and

- In the alternative, the Judge erred in finding a breach of the Regulations on the basis that he failed to take into account the size of the business, the dwindling number of car bumper sets being stored, the fact that access to the car bumpers was only required once or twice each month and the fact that the task had been performed previously without incident.

 

The Court of Appeal rejected these arguments in upholding the decision in favour of Mr Bhatt. The reasoning given by the Court of Appeal was as follows:

- In determining liability you start with the Regulations not the individual’s conduct;
- Work at height must be avoided altogether if reasonably practicable and, consequently, if an employee falls while working at height when he should not have been required to work at height at all, it will be difficult to maintain that he was wholly to blame for the fall;
- If inappropriate equipment was in use and the accident would not have occurred if suitable equipment had been supplied, it will be difficult to maintain that the individual was wholly to blame on the basis that the accident would not have occurred if he had followed the system prescribed.

 

The correct way of looking at it is for the breach of duty to be held to be causative of the accident and the employee’s failure to follow the prescribed system to amount to contributory negligence.

 

1  Link to judgment: Harsukhray Bhatt v Fontain Motors Limited (2010) EWCA Civ 863

 

 

 

Phil Youdan

Cripps Harries Hall LLP

October 2010