Health and Safety - Scottish Construction Contracts - page 440

or 'business' and, in the particular circumstances of the case, the cleaning, repair
and maintenance of plant, machinery and buildings necessary for carrying on the
employer's business were part of the conduct of their undertaking for the purposes
of s.3(1), whether it was done by the employer's own employees or by independent
contractors.
Accordingly, if there was a risk of injury to the health and safety of persons not
employed by the employer, whether to the contractor's men or members of the public,
and if there was actual injury as the result of the conduct of that operation, there was
prima facie liability, subject to the defence of reasonable practicability.
It was further held that the question of control might well be relevant to the issue
of whether it was reasonably practicable for the employer to give instructions on how
the work was to be done and what safety measures were to be taken and, in each case,
thequestionwasoneoffactanddegree.
There was a subsequent (again unsuccessful) appeal to the House of Lords, who
held that if an employer engaged an independent contractor to do work which formed
part of the employer's undertaking, the employer was required by s.3(1) to stipulate
for whatever conditions were reasonably practicable to avoid risk to the contractor's
employees. Whether or not the employer was in a position to exercise control over
work carried out by an independent contractor was not the decisive question under
section 3, which is whether the activity in question could be described as part of the
employer's undertaking, which will be a question of fact in each case.
20.3.4 Section 4
Section 4 imposes a duty on persons in control of, or concerned with, premises
to ensure, again so far as is reasonably practicable, the safety of persons on those
premises. The duty does not extend to employees. It covers 'non-employees' who use
non-domestic premises made available to them as a place of work or as a place where
theymayuseplantorsubstancesprovidedfortheirusethere.Asimilardutyisfound
in s.2(d) of the 1974 Act in respect of employees.
Intermsofs.4(2),itisthedutyofeachpersonwhohas,toanyextent,controlof
premises to which this section applies to take such measures as is reasonable for a
person in his position to take to ensure, so far as is reasonably practicable, that the
premises are safe and without risks to health.
Section 2 imposes an absolute duty, subject only to the limited qualification 'so far
as is reasonably practicable', see Mailer v. Austin Rover Group (1989). This does not
require the duty holder to take precautions against unknown and unexpected events.
The phrase 'person who has, to any extent, control of premises' has a wide mean-
ing.Instructiveinthisregardisthecaseof T Kilroe & Sons Ltd v. Gower (1983). In
that case, the appellant had obtained a contract to demolish large factory premises.
In order to fulfil this contract, it had entered into an agreement with experienced
demolition contractors to provide the bulk of the labour and execute much of the
work on a profit-sharing arrangement. he factory inspectors discovered that asbestos
de-lagging from pipes in the boiler house of the factory was taking place with the
doors of the premises unsealed and opened and with no proper provision having been