“(1) Every Employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled. … (11) In this regulation “adequate” means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and “adequately” shall be construed accordingly.”
“14…Many legislative provisions imposing duties upon employers to protect the health and safety of their employees impose strict liabilities different in kind from their duties at common law. Regulation 7(1) uses the language of strict liability in providing that an employer 'shall ensure' that exposure is either prevented or controlled. The primary duty is to prevent exposure altogether, unless this is not reasonably practicable. 'This' must refer to 'prevented' rather than both limbs of the duty. Where prevention is not reasonably practicable, the secondary duty is adequately to control the exposure. Adequately is restrictively defined, the only relevant factors being the nature of the substance and the nature and degree of exposure generally. Nowhere is there any reference to the reasonable foreseeability of the risk. Nor is the duty dependent upon what a risk assessment would have revealed. It is therefore irrelevant whether or not a reg. 6 assessment would have revealed it.”
“’Adequately’ is defined by regulation 7 without any reference to reasonableness or the foreseeability of risk: it is purely a practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else.”
“They involve positive obligations to seek out the risks and take precautions against them. It is by no means incompatible with their purpose that an employer who fails to discover a risk or rates it so low that he takes no precautions against it should nevertheless be liable to the employee who suffers as a result.”
“Q: You would know that anyone with any knowledge of guns would have known you unload them before you cross an obstacle?”
“A: Yes, I probably – yes, I agree”
“Never carry a loaded shotgun when negotiating obstacles. Before climbing over a fence, style or hedge, crossing a brook or on a steep bank, or negotiating any difficult terrain, always unload the gun. It is not sufficient to open the gun and leave the cartridge in.”
“...I explained the purpose of Risk and Coshh assessments, and the statutory obligation of an employer to identify any risk or hazard appertaining to the work activities of their employees. A discussion followed..., as a result of which we were able to identify all known significant risks/hazards relative to their work as gamekeepers.”
“14...Mr Ruddy struck me as someone who was meticulous and exceptionally careful in imparting information both in his correspondence…and in the witness box. The claimant and Mr Pettit could easily have forgotten the details of this meeting and I have no reason to disbelieve Mr Ruddy, whose evidence I accept. I accept therefore that he prepared a risk assessment on this issue…that he discussed it with the keepers and that he left Mr Shepherd the head keeper to review it and give him feedback on it. I also accept that he prepared a leaflet…specifically for distribution to estate staff because of the risk which he perceived of the risk assessment not remaining in the forefront of the keeper’s minds.”
“15. The next question is, was that leaflet distributed? The evidence is not wholly satisfactory because Mr Shepherd is dead, and there was no system of having recipients sign for it. On the balance of probabilities, however, I believe it will have been so distributed. Mr Shepherd’s statement says this was done. He has been described as meticulous about his duties and I ask, rhetorically, why prepare it and not distribute it? Mr Whitehead and Mr Pettit do not recall it, but I have already found that their memories may be at fault in certain respects. Another memo was drawn up in 2005…Again the evidence of its distribution is not really satisfactory, but on balance, I find that it was so distributed for the same reason: Why prepare it and not distribute it? 16. Furthermore, the claimant knew of best practice. I am entitled to ask how he himself knew of it. It seems to me the likelihood is that it is from this meeting and these documents, perhaps reinforced on the ground by the example and authority of Mr Shepherd.”
“55...In my judgment, the test for the adequacy of training for the purposes of health and safety is what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary...This formulation of the test is consistent with the test applied by this court in Dugmore.”
“19...The only feasible control mechanism was to draw up a system...to impart knowledge of the system by adequate training and to ensure, in so far as possible, that the system was observed. The best practice was drawn up. I found that there was training in it. As for ensuring that it was observed, the defendants are entitled to rely upon their knowledge of the claimant, to which I have already referred, as someone who appreciated the need for instruction-based safety procedures, and who appeared responsible enough to follow instructions and upon the supervision and observations of Mr Shepherd, in whose presence best practice appears invariably to have been used. 20. As Mr Copnall suggests, more could have been done, such as asking employees about whether they actually followed best practice. However, that is almost always true...of almost any accident, and it is not the test. The question is not could the employer have taken this, that or the other additional precaution, but rather, looking holistically at what the employer actually did, was it adequate control? In my judgment, in the circumstances of this case, it was.”
“19. I have been out on shoots with Mark prior to this incident and seen him climb over stone walls. He has on these occasions never given me any cause for concern. I have observed Mark remove cartridges from his shot gun before going over walls. 20. I have never seen Mark attempt to climb over a wall with the cartridges still loaded. If I had, then I would have specifically instructed him not to do this. This would be one of the first basic principles of gun use that everybody learns. None of this was in dispute. The statement continued: 26. Between the Gamekeepers and myself, the topic of gun safety came up on quite a regular basis and was talked about in general conversation. This was never documented. The other gamekeepers were aware that they shouldn’t attempt to climb over walls with cartridges still loaded. This was never a condoned practice and [sic] is clearly illustrated in the various guidance notes.”
“There are two further issues relating to the facts about which I have heard which I ought to mention. Firstly, both the claimant and Mr Pettit said they would adopt best practice in the presence of Mr Shepherd. This may be because it was their practice to adopt best practice when in the presence of any other person. I very much got the impression, however, especially from Mr Pettit, that this was a specific reflection upon Mr Shepherd, the implication being that he was someone in a position of authority and who would insist upon best practice being observed at all times...”