Smith & Ors v South Eastern Power Networks Plc [2012] EWHC 2541 (TCC)

“1(5) “danger” includes danger to health or danger to life or limb from electric shock, burn, injury or mechanical movement to persons, livestock or domestic animals, or from fire or explosion, attendant upon the generation, transmission, transformation, distribution or use of energy; “distributor” means a person who owns or operates a network… “equipment” includes plant, meters, lines, supports, appliances and associated items used or intended to be used for carrying electricity for the purposes of generating, transmitting or distributing energy, or for using or measuring energy; “meter operator” means a person who installs, maintains or removes metering equipment used for measuring the flow of energy to or from a network at or near the supply terminals; “network” means an electrical system supplied by one or more sources of voltage and comprising all the conductors and other equipment used to conduct electricity for the purposes of conveying energy from the source or sources of voltage to one or more consumer’s installations, street electrical fixtures, or other networks… “supplier” means a person who contracts to supply electricity to consumers…”

“3. —(1) Generators, distributors and meter operators shall ensure that their equipment is— (a) sufficient for the purposes for and the circumstances in which it is used; and (b) so constructed, installed, protected (both electrically and mechanically), used and maintained as to prevent danger, interference with or interruption of supply, so far as is reasonably practicable. 4. Generators, distributors, suppliers and meter operators shall— (a) disclose such information to each other as might reasonably be required in order to ensure compliance with these Regulations; and (b) otherwise co-operate amongst themselves so far as is necessary in order to ensure compliance with these Regulations. 5. A generator or distributor shall, so far as is reasonably practicable, inspect his network with sufficient frequency so that he is aware of what action he needs to take so as to ensure compliance with these Regulations and, in the case of his substations and overhead lines, shall maintain for a period of not less than 10 years a record of such an inspection including any recommendations arising therefrom. 24. —(1) A distributor or meter operator shall ensure that each item of his equipment which is on a consumer’s premises but which is not under the control of the consumer (whether forming part of the consumer’s installation or not) is— (a) suitable for its purpose; (b) installed and, so far as is reasonably practicable, maintained so as to prevent danger; and (c) protected by a suitable fusible cut-out or circuit breaker which is situated as close as is reasonably practicable to the supply terminals.”

"From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

“An employer following generally accepted practice will not therefore necessarily be liable for common law negligence, even if the practice involves an identifiable risk of leading to noise-induced hearing loss. There is, as Hale LJ also said succinctly in Doherty v Rugby Joinery (UK) Ltd[2004] EWCA Civ 147…para 44, "a distinction between holding that a reasonable employer should have been aware of the risks and holding that certain steps should have been taken to meet that risk".”

“101 There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence. The classic statements by Swanwick J in Stokes and Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 which have been quoted by Lord Mance at paras 9 and 10 of his judgment remain good law. What they say about the relevance of the reasonable and prudent employer following a "recognised and general practice" applies equally to following a code of practice which sets out practice that is officially required or recommended. Thus to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence. But there are circumstances where it does not do so. For example, it may be shown that the code of practice or regulatory instrument is compromised because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators (see per Mustill J in Thompson at pp 419-420); or because the instrument has failed to keep abreast of the latest technology and scientific understanding. But no such circumstances exist here. The Code was the result of careful work by an expert committee. As the judge said, at para 87, the guidance as to the maximum acceptable level was "official and clear". He was entitled to accept the evidence which led him to conclude that it remained the "touchstone of reasonable standards" for the average reasonable and prudent employer at least until the publication of the consultation paper on the 1986 draft Directive (para 48). 111 Like Lord Mance, I prefer the approach of the judge, with the qualification that what is "safe" is an objective question in the sense that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer. The concept of what is safe is not, however, absolute. As Lord Nicholls and Lord Hobhouse said in R (Junttan Oy) v Bristol Magistrates' Court [2003] UKHL 55…, safety is a relative concept. People can legitimately hold different opinions as to what is safe. Opinions as to what is safe may vary over time as, with developing knowledge, changes occur to the standards that are reasonably expected to be followed. I do not, therefore, agree with Smith LJ (para 78) that what is objectively safe cannot change with time. Standards of safety are influenced by the opinion of the reasonable person and foreseeability of risk plays a part in the forming of that opinion. If reasonable foreseeability is not imported into the concept of safety, then unless the Court of Appeal are right in holding that it is relevant to reasonable practicability, section 29(1) imposes an obligation on employers to guard against dangers of which they cannot reasonably be aware (in so far as it is reasonably practicable to do so). Breach of that obligation exposes the employer to potential criminal liability: see section 155 of the 1961 Act. That is an unreasonable interpretation to place on the statute, which I would not adopt unless compelled to do so by clear words, whether express or necessarily to be implied. In my view, there are no such words. 121 But in my view, the foreseeability of a risk is distinct from the question whether it was "reasonably practicable" to avoid it. Diplock LJ explained the point in Taylor v Coalite at pp 319-320 in the passage quoted by Lord Mance at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable. 122 The importance of the section 14(1) line of cases is that they recognise that the mere fact that a risk of injury is foreseeable as a possibility is not necessarily sufficient to make the machinery "dangerous". It is dangerous only if the risk of injury is sufficiently likely to make it more than a minimal risk: see, for example, the passage in Lord Denning's judgment in Close which I have quoted at para 113 above. I would apply that approach in the present case… 125 I assume that the justification for saying that the statutory duty must differ from the common law duty is that the statutory provisions would otherwise be otiose. But there is no principle of law that a statutory obligation cannot be interpreted as being co-terminous with a common law duty. As Stephenson LJ said in Bux v Slough Metals Ltd [1973] 1 WLR 1358, 1369-1370: "The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it". Sometimes Parliament may decide that, in the interests of clarity and certainty, there is advantage in providing a detailed all-embracing set of rules. The merit in setting these out in a single authoritative document, such as a statute, is not undermined even if they do no more than reflect what the courts would be likely to decide when applying the common law… 129 On this hypothesis, however, I do not agree with the Court of Appeal that the acceptability of risk is irrelevant to reasonable practicability. I would adopt what Lord Mance says at paras 82 and 83. Smith LJ refers to the "quantum of the risk" as being relevant to whether it is reasonably practicable to eliminate it. I agree. But if the quantum of the risk is relevant to that question, how can the fact that a Code of Practice says that a risk is acceptable not be relevant? As Smith LJ said, the classic exposition of reasonable practicability is to be found in Edwards v National Coal Board [1949] 1 KB 704. Tucker LJ said at p 710: "in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost." If, to use the words of Smith LJ, a responsible or official body has suggested that a particular level of risk is "acceptable", that is likely to be cogent evidence that this level of risk is minimal and one that can reasonably be disregarded.”

“I think to be completely candid, we probably dodged asking ourselves that question too harshly right now whilst the obligations still exist. It is something we have looked at more than once over the years, in working out what do we do, or what is the appropriate thing to do, about managing this large asset base distributed in customers' premises. One of the reasons why I did this investigatory work back in the early eighties was because although the incidence was very, very small, it was a niggle at the back of your mind, does it pass the common sense test of: you're not expecting these things? Why not? But when you look at the practicalities of what we would have to do to detect something that was actually definitely going to give rise to a problem, that seems to be beyond what is currently the possible.”

“I think it suggests two things: it suggests that the phenomena that we are actually looking for are hard to detect; and secondly, that, given that meter reading is a piece work based activity where they are incentivised by numbers done, I think there is a widespread belief that meter readers only provide the most cursory discharge of that activity.”

“…the way I perceive them…is that given the simplicity and the robustness of construction of cut-outs, an opportunistic inspection procedure in my view is wholly appropriate. My assessment is that biennial inspection happens to be one of the opportunities that are available to DNOs [Distribution Network Operators] and therefore they should take that opportunity to carry out inspections or implement or have implemented inspections at that time but in the philosophy of opportunistic inspections. I don’t read–I don’t envisage that the procedure should be opportunistic inspections and biennial inspections. I perceive that biennial inspection is very much a part of a reasonable inspection programme based on opportunity.”

“Q. And I want to know what tests have to be undertaken to demonstrate that these work and then my second question after that was why haven’t you done them or asked for time to do them. A…I think the Tyco tests insofar as they did do establish in principle that the temperature strips work, that is to say they measure the temperature of the surface of the cut-out, which is in a sense to be expected. The main element of those tests that was missing is the rate at which the connection fails and the temperature increases. MR JUSTICE AKENHEAD: And you need that to determine at which point the use of temperature strips are efficacious. A. Exactly. MR JUSTICE AKENHEAD: So, if they only show up 24 hours before the fire, well, they are not worth a candle. A. No MR JUSTICE AKENHEAD: But if they show up six months before the fire or three months before the fire, or two years before the fire at the outside, then they have a value. A. Exactly MR JUSTICE AKENHEAD: Is that really your point? A. That’s my point. MR JUSTICE AKENHEAD: So, therefore, I think you have been moving on parallel lines here. You’re basically satisfied from your own knowledge and from Tyco that the temperature strips work and they can be attached on these different types of cut-out generally but what you can’t tell from Tyco is at what stage in the life cycle of the cut-out they are going to cut in, so to speak, they are going to change colour? A. That’s correct, my Lord, yes. MR JUSTICE AKENHEAD: And it is that series of tests, the life cycle tests, if you like, and at what point the resistance that is building up starts to show a significant increase in heat, at what point in the life cycle that actually starts to show. Is it just before the failure? Is it a week, a day, two weeks, is it six months, nine months? A. Exactly, yes. MR JUSTICE AKENHEAD: And you don’t know and you can’t help me on that as to when it’s likely to come up? A. No, I can’t, no. MR JUSTICE AKENHEAD: And there is no data that you have seen from disclosure, as I understand it, from the defendants which helps you on that? A. No, there isn’t.”