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Note
As the tank was designated a major hazard site under the Control of Industrial Major
Accident Hazards Regulations 1984 (CIMAH Regulations) (as amended), Octel Ltd was
obliged to submit a safety case to the Health and Safety Executive (HSE). The case
submitted required contractors to comply with a permit-to-work system. However, the
system was not properly implemented.
A landmark decision for clients, determining that they exert control over the selection
and activities of contract staff and contractors (by way of their undertaking) and, as
such, clients must take effective steps to ensure that the work is completed without
risks to health or safety.
Adsett v K&L Steel founders & Engineers Ltd [1953] – meaning of ‘practicable’-
Baker v T E Hopkins & Sons Ltd [1959) - non-application of volenti non fit injuria
where aid is given to a co-employee or third party
"
Practicable": stricter standard
In this case, the employer argued that the extractor had been installed as soon as it had
been thought of. The Court of Appeal held that the employer could not be held liable, as
for a measure to be "practicable" meant that it had to be known about, especially by
experts, so that it could be applied by people in the industry.
Notes
This case refers to duties placed on employers relating to "dust and fumes". The
decision refers to the standard of "practicability" which it claims is that of "current
knowledge and invention". Once something is found to be practicable, as in ventilation
systems, it is feasible. It must then be done no matter how expensive or inconvenient.
However, this also means that an employer cannot be liable for failing to use a safety
device which was not invented at the time of the accident but appeared subsequent to it.
Where safety measures are qualified by the expression "practicable", it denotes a
stricter standard than "reasonably practicable". It means "possible to be accomplished
with known means or resources" or "feasible". Cost is probably not a factor to consider
but no measure can be "practicable" if, at the time the employers' conduct is called into
question, the measure is not known to science or if a known measure has not been
thought of in connection with an existing process.
Barkway v South Wales Transport Co Ltd [1950] – employer’s duty to maintain
work equipment
A bus had left the road and crashed as a result of a tyre burst. In stating how the
defendant could discharge the onus of proof the Lord Justice said: ‘To displace the
presumption [of negligence] the defendants must. . prove (or it must emerge from the
evidence as a whole) either (a) that the burst itself was due to a specific cause which
does not connote negligence on their part but points to its absence as more probable, or
(
b) if they can point to no such specific cause, that they used all reasonable care in and
about the management of their tyres.’
There is certain ‘artificiality [in] describing a witness whose evidence is taken down and
