A dangerous visit

Donaldson v Hays Distribution Services Limited and Others [2005] CSIH 48, First Division, Inner House, Court of Session, 14 June 2005, Lord Macfadyen, Lord President and Lady Cosgrove


The claimant in this Scottish case was a visitor to an Argos store owned by the first defendant. To collect some furniture, she was directed on a journey through the premises to the loading bay. During her travels, she was crushed between a reversing lorry and the loading bay.


The case considered whether the Workplace (Heath, Safety and Welfare) Regulations 1992 applied to a lawful visitor as well as an employee.


The case was argued on the basis that the claimant was a 'pedestrian' and a 'person using a traffic route' within regulations 17.1 and 17.2. Additionally, there are several contrasting descriptions by which those to whom the regulations apply are defined - for example, 'any person' in respect of floors and 'a person in the workplace' in relation to falls and falling objects. Interestingly, the Working at Height Regulations 2005 have revoked regulations 13.1 and 13.4 and refer to an employer's responsibility to an employee of his or 'any other person under his control' (regulation 3(ii)).


There have been a number of previous Scottish decisions that have favoured a wider interpretation of the regulations to include lawful visitors. These are best represented by the decision in Banna v Delicato 1999 SLT 84. The claimant, a customer in a shop, tripped over a bread basket that had been left on the floor in the customer area. The court found that despite the fact that the Workplace Directive 89/654 dealt only with health and safety requirements for workers, a member state could apply a more stringent test should it choose.


In a rare decision limiting the regulations to employees only, Sheriff Ross in Layden v Aldi GMbH and Company KG 2002 SLT 71 found that the definition of a 'person' meant someone who is working in the workplace on the basis that the term 'a person' defines the extent of the risk, not the identity of the persons to whom the duty was owed.


I am not sure this is correct. Adopting a similar approach with the terminology of 'primary' and 'secondary' victim in nervous shock claims, one sees that the terms are used to define whether a duty of care arises, not to distinguish the scope of the duty. This was the error made by Mr Justice Waller at first instance in Frost v the Chief Constable of South Yorkshire [1997] 3 WLR 1194; [1999] 2 AC 455, 497H.


The only English case of note on the point is Ricketts v Torbay Council (27 March 2003, unreported), in which the Court of Appeal considered whether leave should be given to the claimant to appeal the decision of the recorder at first instance. Lord Justice Auld, in refusing leave, stated: 'Looking at the regulations as a whole it is in my view plain... that the use in them of the words "a person" or "any person", whether qualified or unqualified by the context, is a reference to workers employed by the employer or who are on his premises for the purposes of working.'


In the instant case, the court looked to the Workplace Directive, which, even counsel for the claimant accepted, was only concerned with the health and safety of workers. It then adopted the purposive approach to statutory interpretation - namely that controversial provisions should be read in the context of the statute as a whole, and that the statute as a whole should be read in the historical context of the situation that lead to its enactment. It followed, in the court's view, that the regulations should give effect to the directive.


However, it accepted that it was open to a member state to make the regulations 'more stringent' than the directive required, but in this case the court was unwilling to extend the regulations to lawful visitors.


One wonders why different standards should apply to an employee and a lawful visitor if, like the claimant in this case, for whatever reason, they are present in the same working environment. In reality, it is unlikely that a visitor claimant will not succeed if an employee would. If the claimant had tripped in a hole in the floor surface as she walked to the loading bay, she would likely have succeeded. Similarly, if a box had fallen off the shelving in the warehouse area onto her as she walked along, she would equally have been successful.


This seems an unnecessary limitation. Arguably, once a customer, in the case of the Argos store, walks into the premises and is then directed on a journey through the premises, she does to some extent come under the 'control' of the occupier/employer and would therefore be covered by both these regulations and the Working at Height Regulations. The limitation, therefore, seems unnecessary.


By Simon Allen, Russell Jones & Walker, Sheffield