Meaning and extent of 'conduct of undertaking' as applied to Health and Safety at Work Act, section 3.
Health and Safety at Work Act, section 3
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 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).
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.