Ann Wallace v Glasgow City Council [2010] CSOH 88
Ms Wallace was working in the course of her employment on 13
June 2007 at Kirkriggs School in Glasgow when she suffered an
unfortunate accident. At around 10 o'clock that morning she had to
use one of the ladies toilets in the school. The toilet was a
relatively small cubicle-sized room. As a courtesy to the next user
of the toilet, Ms Wallace considered it appropriate to open the
window. However, as she was only 5ft 1inch in height, in order to
reach the window she had to stand on top of the ceramic bowl of the
toilet. As she was opening the window, the toilet bowl became
detached from the floor and she fell, suffering injury.
The pursuer's case was based solely upon breach of statutory
duty under the Workplace (Health, Safety and Welfare) Regulations
1992. In particular, her case was focused upon regulation 15, which
provides:-
'No window….. which is capable of being opened shall be
likely to be opened…… in a manner which exposes any person
performing such operation to a risk to his health or
safety.'
Lord Tyre took the view that there would be a breach of this
regulation if two conditions were fulfilled. First, a particular
manner of opening a window must expose the person performing the
operation to a risk to his or her health or safety. Secondly, it
must be likely that the window will be opened in that manner.
The first condition was clearly fulfilled. Opening a window by
standing on a toilet bowl was certainly not recommended. The key
question however was the meaning to be given to the word 'likely'
in regulation 15. The pursuer argued that it simply meant
'possible' or a 'foreseeable possibility'. The
defenders argued that it meant 'probable'.
Lord Tyre considered that in context, 'likely' was
intended to mean 'more likely than not'. While the risk of
injury only needed to be a foreseeable possibility, that concept
had already been imported into the regulation by reference to
'risk' to health, or safety. However, that did not mean
that the operation itself required to only be a foreseeable
possibility. Opening the window in the risky manner had to be more
likely than not.
Lord Tyre pointed out that the regulation imposed strict
liability if these two conditions were met. He considered that it
would be imposing too high a duty on employers if the likelihood of
the operation being carried out in a way which exposed an employee
to risk needed to be no more than a foreseeable possibility.
That analysis of the regulation leaves the required
foreseeability potentially higher than the reasonable
foreseeability required at common law.
As it happens, on the facts Lord Tyre was unable to find that it
was likely that the window in the toilet cubicle would be opened by
a person standing on the toilet in order to reach it. Flushed with
that success, the council also defeated Ms Wallace's claims under
regulations 5 and 20.
It is also worth considering whether the pursuer could have
successfully advanced a case under one of the other six pack
regulations. In particular, the Provision and Use of Work Equipment
Regulations 1998 may have provided her with a potential remedy.
Regulation 4(3) provides that every employer shall ensure that work
equipment is used only for operations for which it is suitable.
'Suitable' in that context means suitable in any respect which it
is reasonably foreseeable will affect the health or safety of any
person.
The toilet was work equipment. The pursuer used it as a means of
access to the window. It was reasonably foreseeable that in so
doing she exposed herself to a risk to her health or safety. The
toilet was not suitable for the operation of opening the window.
The outcome may have been different for Ms Wallace if she had
advanced a case under these regulations.
The Wallace case demonstrates the importance of analysing the
precise wording of each and every section of the six pack
regulations. While the regulations will generally leave employers
with little - if any - scope for arguing that an accident was not
sufficiently foreseeable, there are exceptions.
Contributed by Duncan Batchelor