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290 EMPLOYHRS- UABIUTY

and Use of Work Equipment Regulations 1998ⁿ and this adopts a differ-ent approach in the form of safety measures in a graded hierarchy according to practicabihty. First, if practicable, there must be fixed guards; if that is not practicable, then "other guards or protection devices" must be provided; if that is not practicable then the employer must provide jigs, or holders or similar protection for use in conjunction with the machinery; finally, failing all else, he must at least provide information, training and supervision. There has probably, therefore, been some degree of reduction in the strictness of the employer's liability in this area but it should be noted that under the regulation the condition for a step down the hierarchy of protective measures is that the morę onerous measure is not practicable. Under the old legislation it was established that something might be "practicable" without being "reasonably practicable" (though it might be "impracticable" without being actually impos-sible⁴⁴) and it has been held that a precaution may be practicable even though it is unnecessary and inconvenient on any cost-benefit analysis and even though the risks involved in setting it up exceed the probable benefit to be gained from it.⁴⁵ Tlie fencing requirements of the old law did not apply to cases where the claimant was struck by something ejected from the machinę, whether part of the materiał on which the machinę was working or part of the machinę itself.⁴¹’ This is still so sińce the measures required by regulation 11 must be effective to "prevent access to" the dangerous part of machinery⁴⁷ but regulation 12 requires the taking of measures to ensure⁴* that risks to safety from certain specified hazards are either prevented or, where that is not reasonably practicable, adequately controlled,⁴⁹ and ejection of materiał⁵⁰ or disintegration of machinery are among the specified hazards.

⁴*S.l. 1998 No. 2306 (replacing S.l. 1992 No. 2932). The Regulation applies to "any dangerous part of machinery or to any rotating stock bar". Although the Regulation now applies to other premises as well as factories it seems that "dangerous part of machinery" should be given the same meaning as under the Factories Act. There it was held that there was no duły to fence parts of machinery being constructed in the factory rather than forming part of the equipment used in its processes iParrin v. Morton Machinę Co. (19521 A.C. 515), nor to fence vehic!es moving around the premises (Mirza v. Ford Motor Co. (198111.C.R. 757). In deciding whether a part of machinery was dangerous, the basie question was whether it is foreseeably likely to cause injury and in assessing this not only the careful but the careless and inattentive worker had to be borne in mind. However, it was held that if a part ot machinery was a foreseeable cause of injury, and was unfenced, then it was irreleeant that the claimant's accident oocurred in an unforeseeable way: Miliard v. Serek Tubę* Ltil (1969) 1 W.L.R. 211

⁴⁴ Jaync v. National Coal Biwrd (19631 2 All E.R. 220.

Boynton v. Willment Bros (1971( 1 W.L.R. 1625; Sanders v. F.H. Lloyd & Co. Ud (1982J l.C.R. 360.

** Nicholls v. Austin (Leyton) Ud (19461 A C. 493; Carwll v. Andrew Barclay & Sons (1948) A.C. 477.

⁴⁷ Reg. 11(1 )(a). In the a!temative under reg. 11(1 )(b) they may be to stop the movement of the dangerous part before the worker’s entry into a danger zonę.

** Numerous provisions of the various regulations require that the employer "shall ensure" such-and-such a thing and this would appear to create a strict or absolute obligation. In Bruce o. Ben Odeco 1*^ S.LT 1315 "so mamtained as to ensure" was held to create an absolute obligation to keep in repair. To "take measures to ensure" has some affinities with the requirement to "take such steps... as may K¹ necessary" in the Mines and Quarries Act, s.48U). which in Brown v. N.C.B. (19621 A.C. 574 was held to be satisfied where all relevant information had been obtained and acted on with due caa» and skill.

^4,*The rather Delphic a*g. 12(4) provides that " 'adequate' means adequate having regard only to the naturę of the hazard and the naturę and degree of exposure to the risk”.

^v’ But emissions of certain toxic substances and noise aa* govemed by other a‘gulations see reg. 12(5'

The prirnary purpose of the various regulations madę under the E.C. pirectives is regulatory, that is to say, they provide an administrative jnechanism, backed by the enforcement powers of the Health and Safety £xecutive, and, if necessary, by criminal prosecution,³¹ to promote safety by preventing accidents and disease. Essentially, this was true under the ₀ld legislation but the "pro-active" approach is now emphasised by the ^uirement under the Management of Health and Safety at Work Regulations 1999⁵² to make an assessment of the various risks to which workers are exposed by the employment. The Regulations are not designed as a codę of compensation under the civil law, that is merely their incidental effect as a result of the long tradition in this country of treating industrial safety legislation as giving rise to a civil cause of action.⁵³ We do not, therefore, have a coherent system of employer's civil Uability but a patchwork of statutory duties overlaying generał common law liability for negligence. The injuries suffered by worker A wTio is drawn into a machinę as a result of some latent and undiscoverable defect in a fence and worker B who is hit by a flywheel breaking loose from a machinę may be similar in severity but it may still be the case that A recovers damages simply by proving the happening of the accident,⁵⁵ whereas B recovers no damages at all.³⁵ It may be, however, that the new statutory framework will grow in relative importance in relation to civil actions for damages and have some influence on the generał liability at common law. In the first place, the statutory obligations are now morę wide-ranging in their scope sińce they apply, subject to specified excep-tions, to all types of employment, rather than to employment in a factory, in an office, on a building site and so on. Secondly, non-compliance with the statutory requirements may be relied on as evidence of negligence in a common law action. For example, although the Management of Health and Safety at Work Regulations do not give rise to civil liability⁵*’ there would seem every reason to believe that, say, a failure by an employer to carry out the required risk assessment would be excellent evidence of failure to take reasonable care to provide a "safe system of work" at common law.⁵⁷ In some other cases the regulations (and their associated Codes of Practice) may come very close in practice to being treated as the standard measure of what is required under the common law so that the

The regulations themselves say nothing about criminal penalties, those are to be found in the 1974 Act. s33. See the remarks of Ormrod LJ. in Mirza l>. Ford Motor Co. Ud (198111.C.R. 757 at 761, on the tension between the pcnal purposes and the compensatorv effect of the Factories Act 1%1.

“S.I. 1999 No. 3242.

See para. 7.1, above. Nor do the underlying Directiees say anything about dvil liabiity, which is not surprising sińce in some E.U. countries, (e.g. Germany) compensation for industrial accidents is not a matter of tort law at all.

Notwithśtanding the "downgrnding" of the fencing requirements by reg. 11 this would still seem to be the result where fencing is practicable. sińce bv reg. 11(3) the fence must be "of good construction. sound materiał and adequate strength ... Jandl be maintained in an efficient State, in effirient working ^ order and in good repair".

Jhis is because effective measures against a catastrophic failure ot this sort are likely to be jjnpossible.

See para. 8.4, above.

See para. 8.13, below.