Control of Premises, Section 4 HSWA
During the course of 2016 members of chambers have been instructed to represent the freehold owners of commercial properties following accidents at or on those premises. The premises were let to the operators of businesses unconnected to the freeholders and the terms of the leases (or tenancies-at-will) purported to make the tenants solely responsible for statutory compliance. The HSE took a different view and issued proceedings against the freeholders for breaches of section 4 HSWA.
Section 4
…(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies [emphasis added] or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.
(3) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to—
(a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or
(b) the safety of or the absence of risks to health arising from plant or substances in any such premises;
that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.
(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).
Caselaw
- Cases that directly consider the meaning of control in section 4 are relatively rare, in all likelihood because the meaning of control has been interpreted widely. The leading case is Austin Rover Group Ltd v Her Majesty’s Inspector of Factories [1990] 1 AC 619;
“… section 4, which imposes duties in relation to the safety of premises and plant and substances therein, recognises that more than one person may have a degree of control of those premises at any one time and hence be under a duty in relation thereto. The words “to any extent” and “to take such measures as it is reasonable for a person in his position to take” (“the middle words”) point to the distinction between the unified control contemplated in sections 2 and 3 and the possible divided control contemplated in section 4…[1]
…The ambit of section 4 is far wider than that of sections 2 and 3. It applies to anyone who is in occupation of non-domestic premises and who calls in tradesmen to carry out repairs, it applies to those tradesmen in relation to the employees of others, and it applies to anyone who makes the premises available on a temporary basis for others to carry out work in. Thus organisations varying from multi-national corporations to the village shop are brought under the umbrella of the section.[2]”
- Lord Jauncey went on to explain that although section 4 sets a wide definition of control at the outset, the extent of control can be taken into account when considering the standard of care. Section 4 only requires a person in control to take such measures as is reasonable for a person in his position. ‘In his position’ requires the court to take into account the extent of his control, and his reasonable foresight of the use to which the premises are to be put.[3]
- There are two cases that arguably qualify the wide interpretation of control in Austin Rover Group. In Aitchison v Howard Doris Ltd 1979 S.L.T. (Notes) 22, a case decided in the Scottish High Court of Justiciary and chiefly concerning section 3 of the HSWA, an employee of the defendant’s sub-contractor had his leg trapped between a cement barge and a boat during the construction of a concrete oil platform. It was agreed that the defendant, who was the principal contractor for the construction of the platform, did not control the boat that was being used by the sub-contractors. The court held that “the liability for defective access is primarily upon the party who directly controls that access as defined in s. 4.” Neither section 3 nor 4, were designed to impose liability for safety of access to a workplace when that access was under the direct control of a third party.
- It is therefore arguable, based upon Aitchison v Howard Doris Ltd, that a higher standard of control (direct control) is required where control of means of access is concerned, rather than control of the premises themselves.
- More recently, in Kinsley v Health and Safety Executive [2014] EWHC 3474 (Admin), the High Court considered the application of section 3 HSWA to a husband and wife for construction work conducted by builders on their property. Whilst distinguishing between the unified control required for sections 2 and 3, and the divided control required for section 4 (see paragraph [2] above), the court found that the wife did not have any control at all over the property. She had never been at the site at a material time, and there was no evidence of her having issued any direction over the work. Her involvement in the planning process was far removed from day to day management of the project. The lower court had therefore been wrong to conclude that she was in joint sole control of the site, or indeed had even some degree of control.[4]
Other caselaw on the meaning of ‘control’
Given the relative dearth of caselaw on the meaning of control in section 4, it it is useful to consider caselaw in other contexts.
The Workplace (Health, Safety and Welfare) Regulations 1992
- Regulation 4 of the Workplace (Health, Safety and Welfare) Regulations 1992 (‘the Regulations’), reads as follows:
“(1) Every employer shall ensure that every workplace, modification, extension or conversion which is under his control and where any of his employees works complies with any requirement of these Regulations…
(2) Subject to paragraph (4), every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirement of these Regulations…
(3) Any reference in this regulation to a person having control of any workplace, modification, extension or conversion is a reference to a person having control of the workplace, modification, extension or conversion in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”
- The wording of the Regulation is therefore similar in many respects to section 4 HSWA.
- In Bailey v Command Security Services Ltd [2001] All ER (D) 352 (Oct), it was held that the employer of a night security guard patrolling a warehouse belonging to a third party was not in control of the warehouse, despite their employee being the only person on the premises at that time. Although the employer had the right and opportunity to draw the warehouse occupier’s attention to defects and dangers in the workplace, the employer did not have the right or opportunity to do anything to make the workplace safe. There was a distinction between having control of security at a workplace and having control of the workplace itself.[5]
- In contrast, in King v RCO Support Services Ltd [2001] ICR 608, it was held that the owner of a bus shelter did have a degree of control over its yard when a sub-contractor was working gritting the yard, and was fully controlling the work. In the circumstances however the work was not a ‘matter within’ the owner’s control, that having been fully entrusted to the sub-contractor, and therefore the owner was not liable under the particular part of the Regulations relied upon.
- In Caerphilly Country Borough Council v Button [2010] EWCA Civ 1311, it was held that a tenant under a lease which prohibited them from making alterations to the premises was still in control for the purposes of the regulations. The tenant was using the building and controlling access, and there was no evidence that the landlord would have been anything other than willing to allow remedial measures to be taken.[6]
Occupiers’ Liability Act 1957
- The Occupiers’ Liability Act 1957 (‘the OLA’), governs the liability of occupiers to visitors on their property. The Act applies to ‘an occupier of premises’[7], a term that is not defined in the Act. On a common sense reading, it may be that thought an occupier of premises is a more restrictive term than ‘a person who has, to any extent, any control of premises’. However in the leading case, Wheat v E Lacon & Co Ltd [1966] AC 552, Lord Denning set out a similar test to that contained in section 4 of the HSWA, stating that the OLA applies wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there. It is not necessary for the person to have entire control or exclusive occupation, but merely some degree of control with others.[8]
- Under the OLA a distinction is made between a landlord who lets to a tenant, who parts with control and is unlikely to be an occupier (eg. Cavalier v Pope [1906] AC 428, and Drysdale v Hedges [2012] EWHC 4131 (QB) at [69]-[74], although the landlord will now still owe a duty under section 4 of the Defective Premises Act 1972), and a landlord who allows a licensee to occupy the premises, in which case the landlord generally retains control, as was the case in Wheat v E Lacon
Conclusion
The test of whether someone has, to any extent, control of a premises will clearly be fact specific. The following factors may be relevant:
- The rights over the premises that the person enjoys;
- The practical control of the premises in fact exercised by the person;
- The presence or lack of it of the person at the premises at material times;
- Whether control has been wholly transferred or ceded to somebody else; and,
- Whether the person ought to realise that any failure on his part will be likely to place others at risk of injury from use of the premises.
[1] Lord Jauncey of Tullichettle at page 634A
[2] Lord Jauncey of Tullichettle at page 635C
[3] Lord Jauncey of Tullichettle at page 635E
[4] Foskett J at paragraph [31]
[5] Mr Jeffrey Burke QC sitting as a High Court Judge at paragraph [31]
[6] Pill LJ at paragraph [19], and Lord Neuberger at paragraph [35]-[36]
[7] OLA section 2
[8] Lord Denning at 578C
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