This is what the inspector advised and I signed as QS. 

This is what the inspector advised and I signed as QS. 

Lyle

A well written summary which makes a change from the drivel I normally get to read. As GK says above the NI version of the ESQCR would apply in this case.

Chris

Words used in legislation are defined in the citation of the Act or Regulations, this is done for the ESQCR. Under the control of the consumer is not defined in the ESQCR. The principle of English law where the word or words are not defined in the Act or Regulations the normal meaning in the OED is used in the courts. The word or words may have been defined in a Stated Case in the High Court, so called Judge made Law. Foe example to commit burglary the offender must enter the premises as a trespasser. Stated cases have defined this for example going in to a shop when it is open to the public is not trespass, but going in to the shop and entering the stock room without consent is trespass. Persistent shop lifters are given warnings when caught that they are banned from the premises may be charged with Burglary rather than the less serious offence of Theft. Introducing a fishing rod through a letter box in order to steal car keys has been held to be burglary as the fishing rod was held to be an extension of the persons arm. This is the stuff that lawyers make the money on arguing points of law. 

There is a Stated Case relating to the duties of the DNO that seems to say that the DNOs, although having a statutory duty to maintain their equipment on consumers premises, are not liable to pay compensation for the failure of their statutory duties? See here https://www.lexology.com/library/detail.aspx?g=8dd003bd-93be-4d6d-bb9d-f5358774517e

Sorry the link does not work so Google Smith and others v South East Power Networks

JP

Hi John, for your info the link works ok for me. An interesting read. Thanks.

John Peckham said:

There is a Stated Case relating to the duties of the DNO that seems to say that the DNOs, although having a statutory duty to maintain their equipment on consumers premises, are not liable to pay compensation for the failure of their statutory duties? See here https://www.lexology.com/library/detail.aspx?g=8dd003bd-93be-4d6d-bb9d-f5358774517e

John, that ducks the question of the meaning of, "under the control of", but it does make interesting reading. The full judgement may be found at https://www.bailii.org/ew/cases/EWHC/TCC/2012/2541.html. The Court found:

CONCLUSION ON BREACHES OF DUTY

125. It follows from the above that there are only a limited number of respects in which I am satisfied on the balance of probabilities that there were breaches of the tortious duties owed by the Defendants to the individual Claimants:

(a) The failure to implement a biennial inspection scheme whereby each cut-out in premises within their respective curtilages was inspected by staff under the control of the respective Defendant.

(b) The failure to have in place any regime for the replacement of cut-outs.

(c) The failure to have maintained records in relation to at least the type and the date of installation of the cut-outs

126. What has not been established on a balance of probabilities is any breach relating to temperature strips, TICs, quinquennial inspections and fingertip testing, any breach involving possible replacement of cut-outs every 25 years and any breach relating to the collation of records as to "vulnerable" properties.

The cases failed on causation. The point seems to have been that resistive heating builds up over time, due perhaps to corrosion caused by damp, and that the final stage takes hours, perhaps days, but not weeks [53(k)].

The judgement has something to say about access [40], which does have a bearing on control. I would say that if the DNO has no right of access, the equipment can hardly be under his control?

40. The Rights of Entry (Gas and Electricity Boards) Act 1954 (referred to in Schedule 6 to the Electricity Act 1989) specifies that rights of entry to premises can only be exercised by bodies such as the Defendants with the consent of the occupier, with a warrant or in emergencies.

Back to the OP ...

The Court cites the leading case of Baker v Quantum Clothing Group Ltd.:

35. Between Paragraph 62 and 80, he reviewed whether requirements regarding safety in the statute were absolute or relative. He concluded at Paragraph 80, simply as follows:

"In summary, safety must, in my view, be judged according to the general knowledge and standards of the times…"

So I have to conclude that however gruesome the Irish intake room may appear, wwhether it was appropriate to apply insulating tape must be judged against the standards of the time.

Of course should the tape fail, and should a worker be harmed as a consequence, the DNO might have been negligent, but there are still the hurdles of duty of care, foreseeability, and causation.