Human beings tend to be problem solvers – we like to make things work, to provide solutions. Most of the time, this ingenuity is an entirely admirable and positive trait. Sometimes, however, the solution causes a whole new mess – one not so easily resolved.
In Howmet Ltd v Economy Devices Ltd & Others [2016] the owner of a factory that was destroyed by a fire appealed against dismissal of its claim against the manufacturer of a “thermolevel” device which, had it functioned correctly, should have prevented the fire.
Unfortunately, the device was defective. Prior to the final fire, which destroyed the factory, the device failed twice, resulting on both occasions in fires breaking out. Although those fires were extinguished and caused no damage, the factory staff ceased to rely on the device as a fire-prevention tool. However, rather than replace or repair the device, the factory staff simply introduced a new “work-around” system, primarily based around operator vigilance. Sadly, this system also failed, and the factory was destroyed in what should have been a preventable fire. The factory owner sought to recover its loss from the manufacturer of the defective device.
At first glance, the factory owner’s case seems straightforward – device was intended to prevent fire, device was defective, fire broke out and caused damage, therefore manufacturer should be held responsible for that damage. However, at both first instance and in the Court of Appeal, the factory owner was unsuccessful. By the time the final fire occurred, the factory staff were well aware that the device was not functioning correctly and were no longer relying on it to fulfil its preventative purpose. A replacement monitoring/risk control system was in place, and it was the failure of this new system which led to the break out of the destructive fire. The Court of Appeal found that the collective knowledge of the factory staff regarding the defective device could be attributed to the factory owner and that no liability attached to the manufacturer once its device was no longer relied upon to monitor fire risk.
The lesson learnt
If you discover any fault or defect in safety equipment you should:
- alert the manufacturer immediately
- cease to use the equipment and seek either to repair or replace it as a matter of urgency
- halt any activity which is reliant upon the safety equipment being fully functional.
It is important that neither you nor your staff seek to implement a "work-around", even on a temporary basis. Whilst the financial temptation to keep machinery running or production lines open may be significant, the risks to both the business and employees should you do so must weigh against such a decision. Downtime, whilst potentially painful in the short term, will be beneficial in the long term.
By failing to notify the manufacturer of defects, and/or by continuing activities without the benefit of appropriate safety equipment (even if an apparently suitable "work-around" can be found), you are potentially releasing the manufacturer from a continuing duty of care towards you, and leaving yourself solely liable to carry any losses in the event of disaster. You may also open yourself up to criminal investigation by the HSE and/or civil claims if personal injuries occur because proper safety equipment was not functioning correctly or was otherwise unavailable, or because a "work-around" system was not properly risk assessed. Furthermore, it is important to remember that you are unlikely to be the only user of the equipment - notification to the manufacturer allows other users to be notified of potential defects and/or for the product to be recalled.
Any system that relies upon a human response is inherently flawed; especially when the system is hastily implemented to provide a short term solution to a problem, and has therefore not been risk assessed or subject to appropriate training. “Work-arounds” do not work long term, and generally cause more problems than they can ever solve – put simply, don’t take the risk.
For further information please contact Matt Kyle, senior associate or Michael Mercer, solicitor.