Hindsight. A wonderful thing. (...or you could carry out a risk assessment?)

Woman looking out of window

We live in a health and safety conscious society. Our workplace is no different. There are Regulations governing employers which are intended to pre-empt and prevent injury to employees within a workplace. Namely, the Management of Health and Safety at Work Regulations 1999 and the Workplace (Health, Safety and Welfare) Regulations 1992, the later of which are more specific in nature.

Wallace v Glasgow City Council (1) is an interesting case which demonstrates the consequences of failing to carry out a simple risk assessment.

Mrs Marie Ann Wallace, was a clerical assistant at Kirkriggs School, Glasgow. She was employed by Glasgow City Council. On 13 June 2007, whilst at work, Mrs Wallace had an accident within a cubicle of the ladies toilets.

After using the facilities, she wished to open the window in the cubicle to air it, in consideration for its next user. The window was approximately 7 feet from the floor, above the cistern unit. Mrs Wallace was 5ft 1ins in height. Mrs Wallace could not reach the window from a standing position. The window had a hook on it, allowing it to be opened and closed by means of a window pole. At the time of the accident, the window pole was kept in the school janitor’s office. It was recorded by the Lord Ordinary, Lord Tyre (2) , that Mrs Wallace and four other colleagues (all of whom had worked in the school for many years) were not aware of said pole. Mrs Wallace alleged that she and colleagues often stood on the toilet bowl to open the window. Aside from using a window pole the only other way to open and close the window, was manually. In order to reach the window Mrs Wallace stood on the toilet bowl. As she opened the window, the toilet bowl became separated from the floor and toppled over. Mrs Wallace fell and the toilet bowl landed on her foot causing injury, including a displaced fracture.

Mrs Wallace alleged her employers were in breach of their statutory duties in terms of the Workplace (Health, Safety and Welfare) Regulations 1992. In particular Regulation 5(1) which provides:

“The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”
Regulation 15(1) which provides that:

“No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in a manner which exposes any person performing such operation to a risk to his health
or safety.”
and

Regulation 20, “Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.” and under Regulation 20(2) it states “sanitary conveniences are not suitable unless…the rooms containing them ae adequately ventilated and lit…”

Mrs Wallace also claimed her employer was in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999, in relation to the lack of a suitable and sufficient risk assessment.

At first instance, Mrs Wallace lost. Lord Tyre held the employer had not breached Regulation 15. His reasoning being, it could not be held to be likely that persons would stand on the toilet, in order to reach the window, when there were safer options. That is to say, by requesting a window pole from the janitor or leaving the window closed. In Lord Tyre’s opinion, Regulation 5 did not add any weight to the more specific duty under Regulation 15 and Regulation 20 was also defeated. Lord Tyre also held a breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999 had not been established. Lord Tyre commented that given the lack of evidence demonstrating the employers knowledge of employees standing on the toilet bowl as a method of opening and closing the window and the fact there were known safer options (3) , he was “not satisfied that a suitable and sufficient risk assessment would have disclosed the risk of persons standing on the toilet to open the window.” (4) Lord Tyre also stated in his judgment had he had to address the question of contributory negligence, in detail, he would have made a finding to reduce Mrs Wallace’s award by 50%. His reasoning being it was a deliberate act by Mrs Wallace and one she herself had acknowledged (in her evidence) as dangerous. Lord Tyre would have quantified damages at £31,800.

Mrs Wallace appealed to the Inner House of the Court of Session (5). Whilst the appellate court agreed with Lord Tyre in that there was no breach of Regulation 5 of the 1992 Regulations (6), they did not agree with his decision in relation to Regulation 15 (7), nor Regulation 3 of the 1999 Regulations (8).

It was held the provisions of Regulation 15(1) (9) necessitated the need for the employer to formally consider how the window in the toilet may be utilised. By considering the windows functionality the employer would require to carry out a risk assessment. In doing so, the employer would have identified the risk of injury to persons should there be no provision of a window pole, in the toilets or at the very least one which is easily obtainable. Lord Tyre suggested Mrs Wallace should have desisted from attempting to open the window. However, the Inner House felt this was the equivalent to refusing to acknowledge the importance of the duty on the employer, under Regulation 20(1) and (2) (10) relating to ventilation of sanitary conveniences. It was deemed the only way to ventilate the cubicle was by opening the window. The Inner House found the employer had breached Regulation 3 of the 1999 Regulations (11) and Regulation 15 of the 1992 Regulations (12). Consequently, the employers were found liable.

With regard to contributory negligence, given Mrs Wallace had acknowledged her actions were dangerous and that her actions were deliberate, the decision of Lord Tyre to deduct 50% for contributory negligence was upheld and deemed “wholly appropriate” (13). Mrs Wallace was granted damages of £15,900 which was the previous quantification of £31,800 reduced by 50% in respect of contributory negligence.

This case demonstrates the importance of adhering to the Regulations. Due to there being a window present in the toilets, which opened and closed, the employer was then responsible in ensuring the functionality of the window could be carried out safely. Had a risk assessment been completed then the lack of a pole would have been identified thus preventing Mrs Wallace’s accident. It was the employer’s failure in assessing and identifying the risk, which led to their defeat.

(1) [2010] CSOH 88
(2) [2010] CSOH 88 at paragraph (6)
(3) Requesting a window pole from the Janitor or leaving the window closed
(4) Supra note 2 at paragraph [22]
(5) [2011] CSIH 57 (IH (Ex Div)) – Lord Clarke, Lord Bonomy & Lord Osbourne
(6) Workplace (Health, Safety and Welfare) Regulations 1992
(7) Ibid
(8) Management of Health and Safety at Work Regulations 1999
(9) Supra note 6
(10) Ibid
(11) Supra note 8
(12) Supra note 6
(13) Supra note 5 at paragraph [22]

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