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R v Associated Octel Co Ltd (1996)
Meaning and extent of 'conduct of undertaking' as applied to Health
and Safety at Work Act,
section 3.
Facts
Associated Octel Co. Ltd. ("Octel"), operate a large chemical plant
at Ellesmere Port. On 25 June 1990 there was an accident at the
chlorine works. The plant was shut down for its annual maintenance
and a small firm of specialist contractors called Resin Glass
Products Ltd ("RGP") were engaged in repairing the lining of a tank.
Mr. Cuthbert, an employee of RGP, was working in the tank by the
light of an electric light bulb attached to a lead. After grinding
the damaged area of the lining, he had to clean it down with acetone
before applying a fibreglass matting patch with resin. He had his
supply of acetone in an old paint bucket which he had found in a
refuse bin. While he was applying the acetone with a brush, the
light bulb broke. Some of the liquid had probably dripped onto it.
Acetone is volatile and gives off highly inflammable vapour. As Mr.
Cuthbert was using an open bucket, there was a good deal of vapour
in the tank. The broken bulb caused a flash fire in which Mr.
Cuthbert was badly burned.
RGP Ltd was convicted of an offence under section 2 of the 1974 Act,
and Octel Ltd of an offence under section 3. Octel Ltd appealed to
the Court of Appeal. It was argued on their behalf that section 3
did not involve liability for the actions of independent
contractors.
The Decision
The appeal failed. The court ruled that it was a question of fact in
each case whether an activity which caused a risk to the health and
safety of persons (other than employees) amounted to the conduct of
an undertaking. The term “undertaking” was taken as meaning
“enterprise” or “business” and the cleaning, maintenance or repair
of plant, machinery or buildings necessary for carrying on the
business was part of the undertaking (whether carried out by the
client’s employees or by an independent contractor). Therefore Octel
Ltd was liable under section 3(1).
Note
As the tank was designated a major hazard site under the Control of
Industrial Major Accident Hazards Regulations 1984 (CIMAH
Regulations) (as amended), A 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.
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