OC 183/13
The House of Lords dismissed an appeal against a conviction for an offence of failing to discharge the duty under HSW Act s.3(1), when an employee of an independent contractor working on site was badly burned. An employer owes a duty under s.3(1) to ensure work is done without risk - subject to reasonable practicability, if the work activity is part of his undertaking. Whether a work activity is part of an undertaking is a question of fact and, independent of whether employees or contractors are engaged to do the work.
| Issue: | 'Conduct of undertaking'. |
|---|---|
| Act: | Health and Safety at Work etc Act 1974 s.3(1). |
| Circumstances: | Associated Octel Co Ltd (octel) engaged an independent specialist contractor to repair the lining of a tank within their chemical plant. An employee of the contractor was badly burned when a broken light bulb ignited acetone vapour being used by the employee to clean the tank lining prior to repair. The contractor was convicted under HSW Act s.2, and Octel were charged and convicted at the Crown Court for breach of HSW Act s.3(1).Octel appealed to the Court of Appeal on the grounds that since the work was done by a competent independent contractor, they were conducting the undertaking and not Octel. Octel would only have a duty under the Act if they exercised control over the contractor's work. The Court of Appeal dismissed the case, stating that undertaking meant enterprise or business and that the cleaning, repair and maintenance of plant, machinery and buildings, necessary for carrying on business was part of the conduct of the undertaking whether or not such work was carried out by employees or by independent contractors. Octel appealed to the House of Lords. |
| Held: | The House of Lords affirmed the lower court's decision and dismissed the appeal. Whether a work activity is part of the conduct of an employer's undertaking, is a question of fact. It does not depend on whether the employer engages employees or independent contractors to carry out that work or whether control is exercised over the activity. If the work itself is part of the undertaking, a duty is owed under HSW Act s.3(1) to ensure that it is done without risk - subject to reasonable practicability. The place where the activity takes place will, in the normal case, be an important determining factor.The decision confirms that the earlier case of RMC Roadstone Products Ltd v Jester [1994] 4 All ER 1037 was wrongly decided. |
| Type of case: | Criminal. |
| References: | The Times 15 November 1996. [1996] 1 WLR 1543. |
24 January 1997
(FOD/908/94'A')
Disc ref: J:/Editors/CA1/183_13.SAM
Court decisions: decided cases: Health and Safety at Work etc Act 1974 s.3.
