NEBOSH Certificate Case Law By John Johnston AIIRSM www.healthandsafetytips.co.uk References: www.safetyphoto.co.uk

Introduction This presentation highlights the case law that NEBOSH certificate students should be aware of. The cases are central to understanding certain legal principles and by being aware of the facts of these cases, you will be able to apply them in your examinations to give full and informed answers. The slides also have notes added with further information on the cases. This presentation is for a general understanding of the core principles of health and safety legislation within the UK. Aimed specifically at NEBOSH certificate students.

Donoghue v. Stevenson (1932) Duty of Care – Neighbour Principle Negligence. Whether duty owed to person injured. Duty of manufacturer of article to ultimate consumer. Bottle of ginger beer bought from retailer. Bottle containing dead snail. Purchaser poisoned by drinking contents. Liability of manufacturer to consumer. Mrs. Donoghue and her friend went to a shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley where the friend purchased ice cream, and ginger beer suitable to be used with the ice cream as an iced drink. for Mrs. Donoghue to drink. Mrs. Donoghue had no direct or indirect claim against the manufacturer based on contractual obligations because she did not purchase the product. The ginger beer was contained in an opaque bottle that prevented the contents from being viewed clearly. Mrs. Donoghue consumed some of the product after which the decomposed remains of a snail emerged from the bottle when the remaining ginger beer was poured into her glass. She sought damages against the manufacturer, Stevenson, from the resulting nervous shock and gastro-enteritis, which she claimed was caused through the incident. The trial judge found that the plaintiff could bring an action. The Court of Appeal overturned this decision. The plaintiff appealed to the House of Lords. Further details can be found here: http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm

Edwards v National Coal Board (1949) Reasonably Practicable – ‘the Quantum of Risk’ The balance of cost, time and trouble. Mr Edwards was killed when an unsupported section of a travelling road in a mine gave way. Only about half the whole length of the road was shored up. The company argued that the cost of shoring up all roads in every mine was prohibitive when compared to the risk. “so far as is reasonably practicable” means that the degree of risk needs to be balanced against the time, trouble and cost involved in taking the necessary measures to avoid the risk. The question at issue was not the cost of shoring up all roads in every mine operated by the company. The issue was the cost of making safe the section of road that fell. Some roads are secure and show no signs of failing. Others may already have fallen and have already been repaired. The section in question was already supported by timber along half its length. The cost of making it safe was not great compared to the risk of injury and loss of life. Further details can be found here: http://www.safetyphoto.co.uk/subsite/case%20e%20f%20g%20h/edwards_v_national_coal_board.htm

Wilsons & Clyde Coal Co. Ltd v English (1938) Employers’ Common Law Duty of Care (Employers’ Liability) The employers were held liable for injuries to a miner as a result of an unsafe system of working. The House of Lords held that the employer owes a duty of care to his employee: Safe place of work. Safe equipment. Safe system of work. Provision of competent staff and effective supervision. Mr English, a miner, was injured at work when he was crushed by haulage plant. He claimed damages from his employer, the mine owner. The employer argued that, at the time of the accident, responsibility for the safety of the mine had been delegated to his agent.

Wilsons & Clyde Coal Co. Ltd v English (1938) Employers’ Common Law Duty of Care (Employers’ Liability) These duties were owed personally by the employer to each employee and were non-delegable – The performance of the duties could be delegated, but the responsibility for them could not. Further details can be found here: http://www.safetyphoto.co.uk/subsite/case%20u%20v%20w/Wilsons_Clyde_Coal%20Co_Ltd_v_English.htm

Marshall v Gotham Co Ltd [1954] So far as is practicable The employer was not liable for a breach of statutory duty because Marshall’s death had not been caused by any failure by them to take reasonable steps to secure the roof. Comparison of ‘practicable’ and ‘reasonably practicable’ precautions. Generally interpreted to mean that whatever is technically possible in the light of current knowledge must be carried out. The cost, time and trouble are NOT to be taken into account when arriving at a decision. Marshall, a gypsum miner was killed when a large piece of the mine’s marl roof fell on him. The normal—and ordinarily very effective—method of guarding against falling roof was to inspect each area for visible faults, and then to tap the roof with a long-handled hammer; if the noise indicated that the roof was unsound, the unsound portion was brought down before the mining proceeded. But the fall that killed the plaintiff was not detectable by this or any other means. As Lord Reid explained, in these “very rare” cases of “slickenside,” (unusual geological condition). M’s wife alleged a breach of statutory duty (under the Metalliferous Mines General Regulations 1938) and claimed compensation from the employer. What is “reasonably practicable” depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved. It is conceded in the pre- sent case that it was not reasonably practicable to make the roof se- cure by timbering, and to have attempted to make it secure by pneumatic props in some places and by leaving it un-mined in others when no slickenside had ever occurred for a period of 20 years was not, in my judgment, reasonably practicable. “If a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.” Lord Reid Measures may be ‘practicable’ which are not ‘Reasonably practicable.’ Halsbury’s Laws of England, Vol. 20 para 553 Further information can be found on the following web site: http://www.safetyphoto.co.uk/subsite/case%20m%20n%20o%20p/marshall_v_gotham_co_ltd.htm

Master/servant relationship – persons who must be protected. The test: Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool) Ltd. [1947] Vicarious Liability Master/servant relationship – persons who must be protected. The test: “Who had the authority to direct or delegate to the workman the manner in which the vehicle was driven?” Coggins and Griffiths hired a crane and driver from the Mersey Docks and Harbour Board. the driver, Mr Newall, drove the crane negligently and trapped Mr Mcfarlane injuring him. The contract between the Board and the hirers stated that the driver was to become their employee for the duration of the hire. The question was whether the Board were liable to Mr Mcfarlane as Mr Newalls principal employers or whether the hirers now bore responsibility. It was held as a fact that the hirers had power to control what Mr Newall lifted with the crane but not how he lifted it. Further information can be found on the following website: http://www.safetyphoto.co.uk/subsite/case%20m%20n%20o%20p/Mersey%20Docks%20%20v.%20Coggins%20&%20Griffiths.htm

With thanks to Safetyphoto www.safetyphoto.co.uk Don’t forget to read the notes in this presentation for additional information on each case.