Health and Safety - Scottish Construction Contracts - page 439

The general duty laid down by s.2(1), and the more specific duties laid down
in s.2(2)(a)-(e), set out in statutory form the common law obligations owed by
employers to their employees, see West Bromwich Building Society v. Townsend
(1983).
20.3.3 Section 3
Section 3 of the 1974 Act sets out the general duties of employers and the
self-employed to persons other than their employees.
By virtue of sub-sections 1 and 2, virtually identical duties are imposed on employ-
ers and self-employed persons, whereby each is required to conduct their undertaking
in such a way as to ensure, so far as is reasonably practicable, that persons not in their
employment who may be affected by their work are not exposed to risks to their health
orsafety.Itshouldbenotedthats.3(2)alsoimposesadutyonself-employedpersonsto
ensure, again so far as is reasonably practicable, that they, themselves, are not exposed
to risks.
Like section 2, this section imposes absolute criminal liability, subject only to the
defence of reasonable practicability, which defence relates only to measures necessary
to avert the risk.
Particularly crucial in terms of this section is the phrase 'conduct their undertak-
ing'. It was believed that an employer did not conduct his undertaking if he employed
an independent contractor to do the relevant work, provided the employer neither
exercised any control over the work nor was under any duty to do so. That was the
substance of the decision of the English High Court in RMC Roadstone Products Ltd
v. Jester (1994).
While the decision in RMC Roadstone Products Ltd has not been expressly over-
ruled, it was, however, doubted in the case that sets out the present state of the law in
England, namely, R v. Associated Octel Ltd (1996), a decision of the House of Lords.
While not binding in Scotland, there is nothing to suggest that the courts in Scotland
would view matters differently.
In Associated Octel Ltd , the appellant company, which operated a chemical plant,
engaged a firm of specialist contractors to carry out annual maintenance and repair
work. As part of the scheduled work, the contractors had to repair the lining of a
tank within the appellant's chlorine plant, which involved grinding down the dam-
aged areas of the tank, cleaning the dust from the surfaces with acetone and applying
fibreglass matting to rebuild those areas. While the specialist contractor's employee
was inside the tank the bulb of the light he was using broke and the electric current
caused the acetone vapour to ignite. here was a flash fire and explosion, which badly
burned the employee.
Associated Octel were charged with, and convicted of, an offence under the 1974
Act of failing to discharge the duty imposed on it by section 3.
Associated Octel appealed, unsuccessfully, against the conviction. The Court of
Appeal held that the word 'undertaking' in s3(1) of the 1974 Act meant 'enterprise'