Be careful you don’t have to splash out – Steven Smart

Employers must remember there is more to consider than Covid-19 when assessing risk, writes Steven Smart

Washing hands might prove more complicated than employers would expect (Picture: Sean Bell)

By now everyone is well aware of the importance of washing our hands to prevent the spread of Covid-19. As the lockdown restrictions ease and many employees return to work, employers will require to review health and safety measures.

While social distancing will undoubtedly be top of the agenda, employers ought to weigh up all risks posed to employees. What if an employee is scalded by excessively hot water while washing their hands? This was considered in the recent case of Lee Birch v George McPhie & Son Limited.

The Case

Steven Smart, Partner and Head of Glasgow Office, Horwich Farrelly

The Pursuer worked for the Defenders as a labourer. He returned to their yard at the end of the day, covered in plaster dust from carrying out his job. He proceeded to a small workshop where employees were able to wash their hands. Mr Birch placed his left hand under the hot tap and turned it on with his right hand. The water was very hot and scalded the top of his hand. Evidence before the court established that the water temperature would have required to be between 60 and 70 degrees centigrade to cause the injuries sustained. The intended temperature was between 38 and 40 degrees centigrade.

The Pursuer faced a significant difficulty in the action. He could not prove that there was any fault with the water heater, nor that it was reasonably foreseeable to the defenders that there was such a fault, there having been no reported complaints about the temperature of the water before the accident. Other employees frequently used the hot water with no issues. The temperature of the hot water had been regularly tested and was within acceptable limits.

However, although this meant that his main case failed, that was not the end of the matter. When can a Pursuer prove a case if they cannot prove fault?

The answer lies in the Latin maxim of res ipsa loquitur, meaning “the thing speaks for itself.” Mr Birch argued that the water system was under the Defenders’ control and it having been established the accident happened as alleged, the inference was that there was a fault with the system.

The Decision

Sheriff Weir QC noted that for res ipsa loquitur to apply, the accident had to be such that in ordinary course would not have occurred had the Defenders exercised reasonable care. Furthermore, the Pursuer must not know, nor have been reasonably expected to know, the cause of the event giving rise to the accident. These tests were satisfied. There was therefore an inference of negligence on the part of the Defenders, which it fell to them to rebut.

A risk assessment had not been carried out to identify the potential risk posed to employees by use of the water heater. The Defenders adopted a reactive approach, looking to fix problems as and when they arose, rather than a proactive approach to identify protective measures. The Defenders had a warning sign in place at the sink after the accident, but there was no evidence that the sign or any other measure was in place at the time of the accident.

Although the water temperature was tested regularly, this did not identify the overall condition of the water heater and there was no evidence that it had been tested internally for some 30 years. There was nothing to suggest that any consideration had been given to the ongoing suitability of the water heater, for example when compared with others available on the market. It was therefore held that the Defenders failed to rebut the inference of negligence and damages were awarded.

Summary

As optimism rises that we are hopefully coming out of the worst of the Covid-19 crisis and more employees may be able to return to work in the months ahead, this case serves as a timely reminder that while the principal focus in the short term will undoubtedly be on taking steps to prevent the spread of the virus, there remains a clear duty on employers to proactively assess the risks posed to employees and take reasonable care to implement measures to prevent injuries occurring. If not, there is every possibility it will be the employer who ends up in hot water.

Steven Smart, Partner and Head of Glasgow Office, Horwich Farrelly