Mock Trial reveals ambiguity in HSE ladder safety guidance
Gullands and Six Pump Court Chambers provided the courtroom drama at a Mock Civil Trial hosted by IOSH East Anglia branch on 16th May 2018.
The trial involved a fictitious workman Fred Whatall falling from a ladder whilst working on sash window frames at his employer’s HQ building. His employer, “FacMan” had avoided a prosecution based on the same facts at a criminal mock trial hosted by IOSH South East branch in 2013, in which Andrew Clarke played the part of defence solicitor.
However, this did not deter Mr Whatall and his no win no fee Solicitors. They sent a Letter of Claim alleging various breaches of the Work at Height Regulations 2005 and relying on breaches of HSE guidance as in particular:-
- HSE INDG455 Safe Use of Ladders and Stepladders – a brief guide.
- HSE Work at Height Access Equipment Information Toolkit (WAIT).
HSE INDG455 states:-
…ladders can be used for work at height when a risk assessment has shown that using equipment offering a higher level of full protection is not justified because of the low risk and short duration of use…
As a guide, if your task would require staying up a leaning ladder… for more than 30 minutes at a time, it is recommended that you consider alternative equipment.
FacMan argued that as the time required on each individual window would be less than 30 minutes, this was work of short duration, for which a ladder was suitable. They pointed out that if you enter a “work duration” of under 30 minutes into the WAIT toolkit, it accepts a ladder as suitable work equipment. They said Mr Whatall had plenty of opportunity to rest between ladder movements and the HSE guidance did not explicitly state that the term “work” should be interpreted as relating to the whole job, as opposed to each individual period of time that the worker may be using the ladder.
Andrew Clarke redesigned the 2013 event as a Mock Civil Trial. This was first hosted by IOSH South East in 2017 and repeated for East Anglia branch this month. At the criminal trial in 2013, the Magistrates found there was a “reasonable doubt” over the meaning of the Guidance, so Facman avoided being convicted of a criminal offence under health & safety law. However a lower standard of proof applies to civil claims - and there was expert evidence to clear up any ambiguity over how the Guidance was to be interpreted. Therefore the outcome of both the Mock Civil Trials so far has been victory for Mr Whatall- and an award of around £51,000 in damages and costs.
The objective of the day was to show how thoughtful and proactive claims handling – and best practice with regard to Occupational Health and HR issues can make a vast difference to the overall cost of a civil claim. Andrew Clarke demonstrated this with different costs and damages scenarios showing how the incident could easily have cost £67,245.00 or even £80,303.40. Speakers Darren Holmes (Marsh Risk Consulting) and Kim Boggins (Occupational Health Nurse Specialist, KB Occupational Health Services) also highlighted the economic gains to be made by embracing rehabilitation and good OH and HR practice – not to mention in terms of saved management time, staff retention and reduced costs of sickness absence.