A review of selected recent cases in environment and health and safety law

United Kingdom

Packaging

Hillier Nurseries Ltd was prosecuted by the Environment Agency for failing to comply with the Producer Responsibility Obligations (Packaging Waste) Regulations 1997. The company was found not guilty by the magistrates' court which upheld Hillier Nurseries' argument that the plastic pots in which plants were sold were not "packaging" as defined by the Regulations, i.e. "'Packaging' means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or consumer, including non-returnable items used for the same purposes, but only where the products are - (a) sales packaging or primary packaging, that is to say packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase". On appeal by the prosecutor, Mr Davies, the High Court held that the plant pots in which Hillier Nurseries' plants were sold were packaging for the purposes of the Regulations. When considering whether a plant pot was "packaging conceived so as to constitute a sales unit", the Court had to consider all the circumstances present at the time the plant was put in the pot and to determine, according to the circumstances, whether its use at that time included the use of the pot in the process of sale, so as to form part of the sales unit of the plant. On the evidence, the magistrates' court had been entitled to find that the plant pot was conceived as a means of growing the plant but it was wrong to conclude, in having identified the primary purpose, that it was not also conceived so as to constitute a sales unit. Such a use was contemplated and intended at the time the plant was placed in the pot. Hillier Nurseries had therefore acted as a producer and was required to meet the obligations of the 1997 Regulations. The appeal was allowed and the case remitted to the magistrates' court with a direction to convict.
(Davies v Hillier Nurseries Ltd, Times Law Reports, 16 February 2001)

Waste management

A fine of GBP 68,000 was imposed on a Midlands waste company and its director fined GBP 1,000 for storing dangerous waste at a waste transfer site. Jewkes Trading Company and Brian Jewkes pleaded guilty to the charges, brought by the Environment Agency under the Environmental Protection Act 1990, after an investigation showed that waste, including asbestos sheets, not authorised by the company's waste management licence was being kept at the site. Orders to clear the waste were ignored and despite the service of Agency notices and the suspension of the waste management licence, the site continued to operate. Costs of GBP 3,000 were also awarded against the company.
(Environment Agency News Release, 13 March 2001)

The owner and manager of T&L Plant, Tool and Skip Hire were fined a total of GBP 48,000, plus costs of GBP 6,000, the highest total of fines so far for a waste prosecution in Wales. Winston Samuel, the owner of the firm, received a fine of GBP 33,000, after admitting ten charges of illegally depositing and disposing of waste contrary to sections 33 and 34 of the Environmental Protection Act 1990. His son Michael, who managed the company's waste transfer station, pleaded guilty to five charges of illegally depositing waste on land without a waste management licence, an offence under section 33 of the 1990 Act. He was fined GBP 15,000. Waste had regularly been removed from the company's transfer station and illegally dumped and burned in woodland.
(Environment Agency News Release, 22 December 2000)

Barratt Homes Ltd was fined GBP 19,000, plus costs of GBP 5,291.66, after pleading guilty to four charges of illegal waste management contrary to sections 33(1)(b) and 34(1) of the Environmental Protection Act 1990 and section 110(2)(a) of the Environment Act 1995. The offences included burying and burning waste without a waste management licence, failing to fulfil the duty of care as a producer and disposer of waste, and failing to comply with a direction to leave land undisturbed. The Environment Agency had been informed that the company had buried 40-50 tonnes of mixed construction waste at a housing development in Lincoln.
(Environment Agency News Release, 16 January 2001)

Failing to comply with its duty of care as a producer of waste under section 34(1)(a) of the Environmental Protection Act 1990 and failing to meet the requirements of the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 led to fines totalling GBP 14,000 and costs of 3,761.96 for JJB Sports plc. The company did not comply with its duty of care because it failed to take reasonable measures to prevent a contravention of section 33(1)(b) of the 1990 Act, the disposal of waste on land other than in accordance with a waste management licence. Instead of being disposed of properly, sports clothing and shoes were collected on land in preparation for a charity bonfire and ignited by vandals. The company was fined GBP 4,000 for this offence. JJB Sports also failed to register with the Environment Agency, recover or recycle packaging waste, or furnish a certificate of compliance in respect of its recovery and recycling obligations under the 1997 Regulations. Fines of GBP 3,000, GBP 4,000 and GBP 3,000 were imposed for these offences respectively. The company pleaded guilty to all four charges.
(Environment Agency News Release, 29 January 2001)

A Crewe company, LP Griffiths Ltd, trading as Envirocare (NorthWest) Ltd, was fined a total of GBP 14,500, plus GBP 6,485.14 costs, after admitting fourteen offences involving special waste: five offences of keeping or disposing of special waste without a waste management licence, contrary to sections 33(1)(b) and 33(6) of the Environmental Protection Act 1990; and nine offences under the Special Waste Regulations 1996, including failing to provide the Environment Agency with copies of consignment notes prior to the removal or receipt of waste. A fine of GBP 2,000 was imposed for each offence under the 1990 Act and GBP 500 for each Special Waste Regulations offence. The director of the company was also fined GBP 1,000 when he pleaded guilty to two offences concerning false statements and forged information on special waste consignment notes. Instead of taking the waste collected to a licensed landfill, the company took it to its premises and stored it there.
(Environment Agency News Release, 20 February 2001)

IPC

Fines totalling GBP 150,000 and costs of GBP 18,710 were imposed on Tioxide Europe Ltd after an incident at its Seal Sands plant in which acid effluent was discharged into a Site of Special Scientific Interest ("SSSI"). The chemical company pleaded guilty to three offences under Part I of the Environmental Protection Act 1990 relating to the unauthorised release of liquid to controlled waters, a failure to maintain all plant, equipment and technical means used to carry on an authorised process and a failure to use BATNEEC to manage an authorised process. The effluent escaped through cracks in an underground pipe and was transferred by groundwater into marshland. The acid had a considerable effect on invertebrates in the marsh but bird species, the reason for the SSSI designation, were not harmed.
(Environment Agency News Release, 31 January 2001)

SITA Tyre Recycling Ltd was prosecuted following four breaches of the Environmental Protection Act 1990 at its tyre incineration plant. Three concerned non-compliance with dust emission limits due to a failure in abatement equipment whilst the fourth related to a fire which occurred because of inadequate maintenance of a safety device and a failure to follow company procedures. A prohibition notice was served by the Environment Agency in relation to this latter incident. The company pleaded guilty to the offences under Part I of the 1990 Act and also to a fifth offence of illegally storing waste tyres at another site without a waste management licence. SITA Tyre Recycling was fined a total of GBP 28,500 with costs of GBP 15,392.50.
(Environment Agency News Release, 25 January 2001)

Water pollution

This case concerned Severn Trent Water Ltd's right under section 159 of the Water Industry Act 1991 (concerning pipe laying powers) to discharge surface water via a pipe into a canal owned by the British Waterways Board. In 1976, a licence for the discharge of surface water from a nearby housing estate was granted to Severn Trent's statutory predecessor as sewerage authority. The licence could be terminated by the Board on six months notice and in 1996 notice was given to Severn Trent that the licence would be terminated. The sewerage undertaker argued that the Board's consent was not required to discharge water into the canal. The Board sought a declaration, inter alia, that on the true construction of section 159 of the 1991 Act, Severn Trent, as sewerage undertaker, had no power or right to discharge the contents of any sewer or disposal main into any canal or waterway vested in the Board. Although no declaration was granted, a High Court judge held that the sewerage undertaker did have an implied power under section 159 to discharge surface water via the pipe into the canal. The Board's appeal was allowed by the Court of Appeal which ruled that, considering the construction of section 159 in the context of the whole Act, an implied power for a sewerage undertaker to discharge the contents of a sewer or disposal main into any canal, watercourse or onto land without the consent of the owner was not intended. The Act provided for compulsory acquisition of rights over land, including the right to discharge, and for compensation for damage resulting from pipe laying. These provisions were inconsistent with an implied power under section 159. Although a sewerage authority was required to drain land, it did not follow that it should have an implied power to discharge the water so drained without payment. Further, the pipe laying and discharge powers of the Environment Agency and the highways authorities under the Water Resources Act 1991 and the Highways Act 1980 respectively were also consistent with the absence of any implied power of discharge in the Water Industry Act 1991 for sewerage undertakers. The judge's order was set aside and the Board's declaration would be granted.
(British Waterways Board v Severn Trent Water Ltd, Independent Law Reports, 14 March 2001)

One of the worst groundwater pollution incidents in the UK occurred when several thousand litres of oil was spilt onto unmade ground at an oil depot. Halso Petroleum, the owner of the site, pleaded guilty to causing polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 and was fined GBP 7,500, plus costs of GBP 51,229. Total Oil Great Britain Ltd pleaded not guilty to the same charge but was convicted after a two week trial when it was established that its tanker delivery to the Halso depot was partly responsible for causing a storage tank to overflow. The company received a fine of GBP 50,000, with costs of GBP 92,660. The presence of a neighbouring factory which extracted groundwater from boreholes for use in food and drink production made this a particularly serious pollution problem.
(Environment Agency News Release, 20 February 2001)

South Wales Electricity plc received a high financial penalty for polluting the Llanishen Brook and Roath Park Lake in Cardiff with transformer oil. A fine of GBP 6,500, plus costs of GBP 1,511, were imposed by a magistrates' court after the company pleaded guilty to two offences of causing polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 but the company also paid GBP 53,149 to cover the costs of an investigation and clean up operation conducted by the Environment Agency. SWALEC also admitted causing liquid matter to enter a watercourse causing water to be poisonous or injurious to the food of fish contrary to section 4 of the Salmon and Freshwater Fisheries Act 1975 although no separate penalty was imposed. The oil entered the water from a SWALEC sub-station where thieves had drained the cooling oil from a transformer in order to steal the copper components within. Although the site was equipped with oil traps, these had been installed incorrectly and an alarm system was not functioning.
(Environment Agency News Release, 5 February 2001)

Fines of GBP 14,000 and GBP 16,000 were imposed for two offences of polluting water with blood and abattoir effluent, contrary to section 85(1) of the Water Resources Act 1991. Oriel Jones & Son Ltd, which operated the abattoir, was also fined GBP 5,000 for depositing blood and gut contents in woodland without a waste management licence, contrary to section 33(1)(b) of the Environmental Protection Act 1990. The company had a registered exemption under the Waste Management Licensing Regulations 1994 for the spreading of this type of waste on farmland but not on neighbouring woodland. It pleaded guilty to all three charges and was assigned costs of GBP 1,917.
(Environment Agency News Release, 30 January 2001)

Two Channel Tunnel Rail Link contractors, Hochtief and Norwest Holst, were jointly fined GBP 15,000 for each of three offences of causing water pollution contrary to section 85(1) of the Water Resources Act 1991, a total of GBP 45,000. The companies pleaded guilty to the charges which were brought following three separate incidents in which water in the vicinity of the engineering works was found to be seriously polluted with sediment or sand. The Agency claimed that the companies' anti-pollution systems were either not in place or were inadequate and that more priority should have been given to such measures. Costs of GBP 7,000 were also awarded against the contractors.
(Environment Agency News Release, 1 February 2001)

Water abstraction

A Stockport company pleaded guilty to four breaches of the conditions of its water abstraction licence, contrary to sections 24(1)(a), (4) and (5) of the Water Resources Act 1991. Sovereign Rubber Ltd, which was fined GBP 1,500 for each offence and ordered to pay GBP 976.47 costs, failed to record meter readings, failed to record the level of water in the borehole and abstracted too much water. The non-compliance was detected by the Environment Agency during a routine inspection of the company's records.
(Environment Agency News Release, 2 March 2001)

Water supply

The Drinking Water Inspectorate prosecuted Mid Kent Water for supplying water unfit for human consumption after discoloured water was provided to customers in Sevenoaks. The water company challenged the Inspectorate's criteria for prosecution, claiming that a prosecution brought on the grounds of water dicolouration was an abuse of process, being contrary to the will of Parliament and pleaded not guilty to the charge. Following a ruling to the contrary in a separate case dealing with this abuse of process issue (R v Yorkshire Water Services (see January 2001 Environment Law Bulletin)), Mid Kent Water changed its plea to guilty and admitted the four charges brought under section 70 of the Water Industry Act 1991. It was fined GBP 12,000, plus costs of GBP 43,077.79.
(DETR News Release, 12 March 2001)

Radioactive substances

CAT UK Services Ltd admitted three breaches of the Radioactive Substances Act 1993 in a prosecution brought by the Environment Agency. The company lost a spray gun containing a radioactive source, a breach of the conditions of its radioactive substances registration certificate, and then breached the certificate conditions again by failing to inform the police and the Agency of the loss without delay. The third breach was that the company had not ensured that the keeping and use of the radioactive source were supervised by a competent person able to secure compliance with the limitations and conditions specified in the certificate. CAT UK Services was fined GBP 6,000, plus costs of GBP 2,500.
(Environment Agency News Release, 7 February 2001)

Planning and human rights

Four cases heard in the High Court all concerned the compatibility of certain of the Secretary of State for the Environment, Transport and the Regions' powers in the planning area with article 6 of the European Convention on Human Rights, implemented in England and Wales by the Human Rights Act 1998. Article 6 requires that a person should have the opportunity of having their civil rights determined by an independent and impartial tribunal or, where this is not the case, that the decision making process should be subject to control by a judicial body with full jurisdiction to provide a guarantee of the article 6 objective. Holding and Barnes and Premier Leisure UK applied for judicial review of the Secretary of State's decisions to call in planning applications under section 77 of the Town and Country Planning Act 1990 on the grounds that these were contrary to article 6 of the Convention. Outline planning permission was refused for the construction of a distribution centre by Alconbury Developments and the company appealed under section 78 of the 1990 Act. When the Secretary of State directed (under paragraph 3 of schedule 6 to that Act) that he, rather than a planning inspector, would determine the appeal, Alconbury Developments sought a declaration that the Secretary of State's decision to recover the appeal and a decision concerning an application for an order under section 1 of the Transport and Works Act 1992, were not incompatible with article 6 of the Convention. The fourth case concerned Legal and General, which owned land subject to a compulsory purchase order promoted by the Highways Agency. The proceedings reached the public inquiry stage and were then adjourned whilst the Secretary of State sought a declaration that the decision making process was compatible with article 6 of the Convention. The High Court ruled that the processes whereby the Secretary of State calls in planning applications under section 77 of the 1990 Act, recovers appeals against refusal of planning permission under section 78 of the 1990 Act and proposes to make orders under section 1 of the Transport and Works Act 1992, the Highways Act 1980 and the Acquisition of Land Act 1981 were incompatible with article 6(1) of the European Convention on Human Rights. The Secretary of State was not independent and his decisions under these statutes were not impartial because in each case his policy was at issue and he was the judge in his own cause. Neither could it be said that the nature of the review available in the High Court complied with article 6 as the Court's power by way of judicial review was restricted to considering the lawfulness of the decisions and not the merits of the cases. The Court was not able to enlarge its powers of review to save the decision making powers from incompatibility. Nevertheless, the Secretary of State's acts were not unlawful under section 6(1) of the Human Rights Act 1998 because primary legislation required him to take such decisions and he therefore came within section 6(2) of the 1998 Act which provides that it is not unlawful for a public authority to act in a way which is incompatible with a Convention right if it cannot have acted differently under primary legislation. Leave to appeal was granted.
(R v Secretary of State for the Environment, Transport and the Regions, ex parte Holding and Barnes plc; R v Secretary of State for the Environment, Transport and the Regions, ex parte Premier Leisure UK Ltd; R v Secretary of State for the Environment, Transport and the Regions, ex parte Alconbury Developments Ltd; Secretary of State for the Environment, Transport and the Regions v Legal and General Assurance Society Ltd, [2000] All ER (D) 2264)

Asbestos

Mrs Fairchild, whose husband died from mesothelioma, brought an action for damages against the second and third defendants who occupied the premises where it was alleged that Mr Fairchild had been exposed to asbestos during renovation work in the 1960s. Mr Fairchild's employers had ceased to trade some time previously. The second defendant accepted a breach of duty as occupier. In the High Court, the judge ruled that it was not possible for the claimant to establish on the balance of probabilities that any breach of duty by either the second or third defendants had caused or materially contributed to Mr Fairchild's disease (Wilsher v Essex Area Health Authority [1988] AC 1074). Mesothelioma was not caused by cumulative exposure to asbestos (although this would increase the risk of contracting it) and it could not be said that any fibre was more or less likely to have caused the disease. Finding that both defendants contributed to the disease would be wrong as it was equally likely that only one did and it was untenable in English law to find all the defendants liable if it was impossible to establish whose act had caused the damage. On the issue of the third defendant's liability under the Occupier's Liability Act 1957, the Court held that the company was not liable and that the primary duty to protect Mr Fairchild rested with his employer. The occupier was obliged to engage competent contractors and there were no special circumstances that would have required special steps to be taken by the occupier as the renovation work was normal work at the time.
(Fairchild v Glenhaven Funeral Services Ltd and Others, New Law Digest, 1 February 2001)

Shell Tankers UK Ltd and Cherry Tree Machine Company Ltd were defendants in an action brought by the widows of two former employees who died from mesothelioma, allegedly caused by exposure to asbestos during the period of their employment. Shell Tankers was found liable in negligence in both cases but appealed on the ground that the workers' degree of exposure to asbestos was not such that a reasonable employer should have identified a risk. Cherry Tree Machine Company, which also employed the husband of the second claimant, was not found to have been negligent but was held to have breached the Asbestos Industry Regulations 1931 which require mixing or hand blending of asbestos to take place with mechanical ventilation to suppress asbestos dust. The company appealed, arguing that the Regulations only applied to the asbestos industry. The Court of Appeal dismissed the appeals of both companies. In the case of Shell Tankers, it held that where an employer knew that employees were exposed to asbestos, it should view the risks as those associated with the potential maximum exposure where the extent of a particular employee's actual exposure was unknown. The risks could only be ignored where it was certain that no employees were sufficiently exposed. The fact that mesothelioma was not known to be caused by asbestos exposure at the relevant time did not matter; any foreseeable personal injury was sufficient and Shell Tankers should have known that asbestos dust exposure was dangerous and that there was no knowledge as to a safe level of exposure. In view of this, the company should have taken precautions to protect the health and safety of workers. The Court also held that the application of the Asbestos Industry Regulations 1931 was not confined to factories or workshops processing asbestos or making asbestos products. The type of work conducted by the employees of Cherry Tree Machine Company clearly came within the ambit of the Regulations and an exemption for occasional use with little exposure did not apply as the work with asbestos was regular. Cherry Tree Machine Company was in breach of its statutory duty by failing to provide mechanical exhaust facilities during asbestos mixing.
(Shell Tankers UK Ltd and Another v Jeromson and Another, New Law Digest, 2 February 2001)

Health and safety

The death of an electrician who touched exposed live wires in Doncaster Metropolitan Borough Council's offices led to the prosecution of the Council by the HSE and a fine of GBP 400,000, with costs of GBP 30,000. The evidence suggested that Council managers had been aware of the danger for some time but no action had been taken to remedy this or to warn the electrician. The Council pleaded guilty to the charges under the Health and Safety at Work etc. Act 1974.
(HSE News Release, 20 February 2001)

Three companies were fined a total of GBP 120,000 following an accident involving a reversing chipper spreader at a roadworks site. Ringway Highway Services, whose employee had to have a leg amputated, was fined GBP 50,000 for failing to ensure his safety. Hewden Plant Hire was fined GBP 40,000 for exposing people not in its employment to risk and Phoenix Engineering Co Ltd was fined GBP 30,000 for failing to notify customers of important safety precautions. Costs totalling more than GBP 16,500 were shared between the companies. All charges were brought by the HSE under the Health and Safety at Work etc. Act 1974 or subordinate regulations.
(HSE News Release, 16 February 2001)

Tilbury Douglas Construction Ltd was fined GBP 75,000, plus costs of GBP 25,000, and London Underground Ltd fined GBP 20,000 and costs of GBP 10,000 for their parts in an incident in which the jib of a crane being used at Boston Manor Underground station fell through the roof of a nearby house. The residents, who were asleep when the accident occurred, required psychiatric treatment. Tilbury Douglas, which was responsible for the site compound, pleaded guilty to breaching sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974 in that it failed to ensure the safety of its employees and people not in its employment. The work was commissioned by London Underground, which also pleaded guilty to the offence of failing to ensure the safety of persons not in its employment, contrary to section 3(1) of the 1974 Act.
(HSE News Release, 9 March 2001)

Friskies Petcare UK Ltd was prosecuted following the death of a technician who went into a silo to repair a metal stirrer and came into contact with the live parts of welding apparatus. The company pleaded guilty to failing to ensuring the safety of its employee, contrary to section 2(1) of the Health and Safety at Work etc. Act 1974 and contravening regulation 3 of the Management of Health and Safety at Work Regulations 1992. The Crown Court imposed a fine of GBP 600,000, stating that this was a case in which profit had been put before safety. On appeal to the Court of Appeal, Friskies Petcare UK's fine was reduced to GBP 250,000, deemed a more appropriate penalty as fines in excess of GBP 500,000 tended to be reserved for major public disasters. In determining the level of fine, the mitigating and aggravating factors should have been considered, together with the financial position of the company (F Howe & Sons (Engineers) Ltd [1999] 2 All ER 249). In this case, the mitigating factors were: the company's prompt admission and plea of guilt; its good health and safety record; and the action taken since the accident to improve safety. The aggravating factors were: the death of the employee; the inaccessibility of the off switch; the fact that breaches had been going on for some time; the fact that no employee had had his attention drawn to the relevant health and safety information; and the fact that the company had not conducted a risk assessment of the work of repairing the metal stirrers in that manner. As the HSE had not put its case on the basis that the company had put profit before safety, it was wrong for the Crown Court to take this into account as an aggravating factor. The Court of Appeal stated that in the future, the HSE should assist the courts by listing aggravating factors when commencing proceedings.
(R v Friskies Petcare UK Ltd, New Law Digest, 10 January 2001)

Employees suffering from the condition vibratory white finger ("VWF") alleged that this was caused by their work with vibrating tools at British Rail Engineering Ltd ("BREL"). The cases of several claimants, including Mr Allen's, were selected as test cases to determine when BREL should have known of the risks of VWF and what the company's duty was to its employees after that date. The High Court found that BREL should have been aware of the risks of VWF developing from the use of vibrating tools in 1973 and, from that date, should have taken action to reduce the rate at which the workers' condition progressed. The Court found that BREL had not done so and had been negligent in failing to warn its employees of the risks of VWF and to protect their health. This negligence had only arisen however once the employees were damaged by carrying out the work. Further, even if the company had not been negligent, the employees would still have continued with their work, but at less intensity and with less damage. The High Court ruled that damages would not be awarded for the total injury suffered as the company was only liable for the excess damage attributable to its negligence. In Mr Allen's case, the damage suffered by him arising from BREL's negligence was quantified as half the total damage he suffered after the company was in breach of its duty to him. He appealed, claiming that his employer was liable for all the damage suffered during his employment. BREL cross-appealed on a different point, concerning the judge's decision to allow Mr Allen's claim to proceed, despite the fact that it was made outside the primary limitation period. Both appeals were dismissed by the Court of Appeal. Case law had established the principle that the amount of an employer's liability should be limited to the extent of the contribution made by its breach of duty to an employee's damage. In this case, apportionment of damages depended on the circumstances of each claimant: for Mr Allen, it was found that if BREL had not breached its duty, he would still have been exposed to some vibration in the region of 50-66per cent of the level to which he was actually exposed. The High Court's decision regarding damages was therefore justified. It was also held that the High Court judge was entitled to allow the claims to be made outside the limitation period. Under the Limitation Act 1980, inter alia, the length of a delay, whether the claimant is to blame for this and the prejudice caused to the parties must be considered when exercising discretion to allow a claim to proceed. In this case, the relevant date of knowledge was justified, the claimants had not been at fault for the late issuing of proceedings and BREL could not identify any prejudice that might be caused to it by the claim continuing.
(Allen and Others v British Rail Engineering Ltd and Another, [2001] All ER (D) 291)

The use of a hand held tool which did not itself vibrate but which was caused to vibrate because of its position on a vibrating machine came within the category "use of hand held vibrating tools" for the purposes of item A12 on the list of prescribed diseases in Schedule 1 to the Social Security (Industrial Injuries) Regulations 1985. A machine operator who contracted carpal tunnel syndrome, a prescribed disease under the Regulations, after using heavy scissors resting on a vibrating sewing machine had her claim for industrial injuries benefit refused by the Social Security Commissioner. On appeal, the Court of Appeal held that the source of the vibration was not crucial if a hand held tool which vibrated was used. The appeal was allowed.
(Janicki v Secretary of State for the Home Department, Times Law Reports, 2 February 2001)

A man engaged in spreading grit on an icy surface at his place of employment slipped on some ungritted ice and was injured. He claimed damages from his employer and from a second company, to which his employer was contracted to provide cleaning services. The employee's place of employment was at the second company's premises. Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 provides that every traffic route in a workplace must be free from obstruction which could cause a person to slip, whilst regulation 4 requires every employer to ensure that every workplace under his control complies with these Regulations and every person with control of a workplace to ensure that the workplace complies with the Regulations relating to matters within that person's control. The employee's claim was rejected and he appealed, arguing, inter alia, that the second company, as the owner of the premises, had a sufficient degree of control over the workplace to dictate, if aware of a dangerous practice, to the first company how a task contracted to that company should be conducted. The Court of Appeal ruled that this was not the case. Although the second company did have some degree of control over the premises, the requirement to keep the workplace free from obstructions that could cause slips did not relate to matters within its control. The gritting operation had been entrusted to the first company, the man's employer, and there was no evidence to suggest that the second company had retained any degree of control over this matter.
(King v RCO Support Services Ltd and Another, New Law Digest, 8 December 2000)

Mr Palfrey, an offshore engineering contractor, was an employee of ARC Offshore Ltd. As part of his employment he undertook two trips to work for a third party in West Africa where he contracted malaria and subsequently died. He had not sought advice as to the medical treatment needed for visits to these areas. Mrs Palfrey brought an action for damages against her husband's employer, claiming that the company should have provided him with proper advice on the health risks present in West Africa and that it had no effective advice policy and had not taken reasonable steps to protect its employee's safety. It was also contended that a director of the company had told her husband that no vaccinations were required as he would be working offshore. In response, ARC Offshore Ltd argued, inter alia, that the omission of a clinic to advise Mr Palfrey properly of the required treatment was an intervening event which broke the chain of causation and that the company had no obligation to provide specific medical advice of the type that should have been sought by Mr Palfrey from a doctor. The High Court held that the company was liable. An employer whose employees were hired by a third party had a basic obligation to determine where they were to be sent, how they would get there and their working conditions. It was also necessary for a company to ascertain publicly available information covering any health hazards to be encountered by an employee and to bring these to the employee's attention where necessary. In this case, ARC Offshore Ltd had failed to advise Mr Palfrey properly as to the risks associated with travel to West Africa. The company was not able to rely on the effect of any intervening event as it had informed the employee that no risks existed and as a result he had not made any enquires of the clinic. The clinic was unaware of the dangers and the omission to make further enquires did not amount to an intervening act but was just a concurrent contributory cause.
(Palfrey v ARC Offshore Ltd and Others, [2001] All ER (D) 304)

European Union

Nitrates directive

The European Court of Justice ruled that the UK had failed to fulfil its obligations under Directive 91/676/EEC on the protection of waters against pollution caused by nitrates from agricultural sources. The Court held that the UK Government had not complied with article 3(1) of the Directive, requiring waters that could be affected by nitrate pollution to be identified using certain criteria, because only surface waters intended for the abstraction of drinking water and groundwaters intended for human consumption had been identified. Other waters containing or potentially containing high nitrate levels should also have been identified. Other non-compliance concerned the designation of vulnerable zones draining into such waters in Northern Ireland (article 3(2)) and the late establishment in the UK of action programmes to reduce nitrate pollution in such zones (article 5). The UK accepted that these complaints were valid. Although appropriate remedial measures were in place, these subsequent events could not be taken into account by the ECJ.
(Commission of the European Communities v UK , C-69/99; Times Law Reports, 19 December 2000)

Financial penalties for non-compliance

Greece has reported that it has finally closed the illegal waste dump on Crete which was the subject of legal action by the European Commission (see January 2001 Environment Law Bulletin). A landmark European Court of Justice judgment in July 2000 fined the Greek Government a daily penalty of Euro 20,000 for non-compliance with an earlier ECJ order requiring compliance with two waste directives (Directive 75/442/EEC on waste and Directive 78/319/EEC on toxic and dangerous waste), the first time such action had been taken. The daily fine was calculated with reference to the Greek GDP and the seriousness and length of the non-compliance. Greece has paid a total of Euro 4.78m in penalties since July 2000.
(Commission of the European Communities v Greece, C-387/97; European Parliament, March 2001)

The UK Government could be subject to financial penalties if European Court of Justice proceedings initiated by the European Commission succeed. The Commission is responding to the UK's failure to enforce a 1993 ECJ judgment concerning non-implementation of Directive 76/160/EEC on bathing water quality. In 1993, the Court found that nine bathing areas on the Fylde coast of England did not comply with the Directive and, as two of these areas, Bispham and St Anne's North, still do not meet the required water quality standards, the Commission has decided to take further legal action. It has requested that the ECJ imposes a daily fine of Euro 106,800 (around GBP 70,000) on the UK which would be levied for each day of non-compliance following a second judgment.
(European Commission, January 2001)