England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. PETER BIRTS Q.C.)

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

Thursday, 11th October 2001

1. LORD JUSTICE WARD: Lord Justice Potter will give the first judgment.
2. LORD JUSTICE POTTER: This is an appeal from a judgment of Mr. Peter Birts Q.C., sitting as a Deputy Judge of the Queen's Bench Division, by which on 12th October 2000 he gave judgment for the claimant on his claim for damages for personal injury sustained on 8th July 1996 when, as an employee of the defendant, he was walking on the roof of the defendant's warehouse premises and slipped and fell through a sunlight to the warehouse floor beneath. The claimant was 28 years old at the time and he suffered serious and permanent injury. He is now a paraplegic. The trial was on liability only.
3. The claim was made both in negligence and for breach of statutory duty. Like the judge, I shall deal with the question of common law negligence first.
4. The essential history and background facts as they appear from the findings of the judge and the largely undisputed evidence are as follows. The defendant company was a small flooring supply company owned, controlled and run by the claimant's father, Mr. Terence Parker, its managing director. It employed six other people. The claimant was its sales director. He had worked in the company since leaving school at 16 and, by the date of the accident at the age of 28, he was second in command. His father was in his mid-50s and was intending to hand over control some six months after the accident, but at the time he was very much the working boss. Also employed by the company was Mrs. Parker, the claimant's mother, who was the company secretary. There were four other employees, of whom it is only necessary to mention one, Mr. Peter Stemp, who was the company's warehouse manager and a witness to the accident.
5. The company had been formed in 1984 and had since then occupied two warehouse premises, the first at Seven Kings, Essex and the second at Harold Hill, Romford, where the accident occurred. Those premises had been leased since March 1993 and they consisted of offices and a warehouse area with a gently sloping roof some 12 feet from the ground. They were situated on an industrial estate which was in or near what the judge called "a rough area" with a housing estate to the rear of the warehouse. The two estates were separated by a fence, breached by holes made in it which allowed access from the housing estate and the waste land adjacent to the warehouses premises. The industrial estate was regularly visited by vandals whose activities had been much in evidence. The same had been true of the Seven Kings premises, which had suffered a previous break-in when burglars had got onto the roof, kicked in a skylight and descended via a rope attached to the roof into the warehouse below, where they stole some of the property which they found there.
6. The defendant was not a company in which the employees had any particular job description or well-defined duties. There was no safety officer and no one had ever carried out a safety assessment of the premises of working practices. However, security at the Romford premises was the informal responsibility of the claimant. For instance, if, for example, a burglar alarm went off during the night, it would be the claimant who would be the person who would attend. The position was that, although all employees had their separate jobs, there was a good deal of overlap in dealing with the various tasks. As the claimant put it, "We all mucked in". However, it is common ground that none of the employees had been on the warehouse roof for any purpose before. When work to the roof had been considered necessary in the past, Mr. Parker Senior had brought in specialist contractors.
7. On the day of the accident the claimant was on the telephone in the office at the premises when Peter Stemp came in and asked him to go outside to look at what he described as a rope or wire which he had noticed hanging from the roof of the warehouse at the rear. The claimant went out and examined it and saw that there was a piece of cable, fixed to the roof at some point beyond his vision, and coming all the way down to the ground. Despite fairly regular security checks around the building conducted at ground level, he had not seen this before and both he and Mr. Stemp became concerned. It reasonably struck the claimant that the wire could have been fixed by prospective burglars or vandals, intending to gain entry in much the same manner as had happened at Seven Kings on the earlier occasion. The claimant decided to remove the cable. At first he tugged at it, and tried to pull it down but it would not move. It held fast even when he applied his full weight. Appreciating that it presented a risk to the security of the premises, he and Mr. Stemp collected a 15-foot aluminium ladder which was kept in the inside of the premises and placed it against the rear roof of the building. The claimant was not clear why the ladder was kept in the premises but said it had been in use in Seven Kings and had been included in the move to Romford. However, the judge inferred that because, by reason of its length, there could be no real use for the ladder on the inside of the premises, it would have been reasonable for any employee to assume that the reason or main reason why it was on the premises at all was for the purpose of gaining access to the warehouse roof if it proved necessary.
8. Mr. Stemp was afraid of heights and he would not himself have gone up the ladder. He said to the claimant, as the claimant ascended the ladder, "Just cut the wire," by which he meant, as the judge inferred, just cutting it at eye level at a height where it could not be reached from the ground. The claimant, however, wanted to find out where the wire was attached to the roof so that he could remove it, stating, as the judge accepted, that he thought vandals might still be able to reach it and attach another wire to it if any remnant were left hanging from any part of the building. He said he wanted to do the job properly.
9. On reaching roof level, the claimant could not see where the rope was attached, as it appeared to go on from his vision to a point beyond the first shallow peak in the warehouse roof. He decided to go onto the roof and see where it was attached. Unfortunately, he was wearing leather-soled boots with insufficient grip. He took a couple of steps onto the roof and had gone about 3 to 5 feet when his right foot slipped outwards away from him and he fell forward through the adjacent skylight.
10. The claimant stated in his witness statement, and it was not contradicted, that because of his informal responsibility for the over-all security of the premises he considered it was his responsibility to investigate the position and purpose of the rope and ensure that the premises were secure. In his evidence in chief he said he was aware of the nature of the roof, namely that it was asbestos, but he considered that it was adequate to take his weight if walked on. Indeed, there is no evidence to the contrary. He further stated in his witness statement that:"I had never received any instruction, there was certainly no warnings not to go on to the roof. My father who had overall responsibility for the running of the company had never given instructions to me, or as far as I am aware any of the other employees not to go on to the roof."
11. Finally he said that, if any instruction had been given not to go on the roof, or if somebody responsible for safety had told him not to go on the roof, he would not have done so.
12. In evidence in chief the claimant was specifically asked (page 6 of the transcript) by his counsel:

"QCan I ask you this? Had you been told, principally by your father and, equally, by anyone else in authority not to go on the roof, in the circumstances you have described would you have gone on to the roof? A. No."

13. He was immediately asked in cross-examination by Mr. Pooles (page 7 of the transcript):

"QYour real complaint is: 'If father had told me not to go up there, I wouldn't have gone.'

A. That's right.

"QThat is really all that it boils down to, is it not? A. Yes."

14. Despite cross-examination in order to seek to break down that assertion, the claimant persisted in it. I should say at this stage that he was in all respects in relation to his evidence accepted to be an honest and reliable witness by the judge. At one stage of his cross-examination, however, after the claimant had observed that his father was the boss of the business, Mr. Pooles hypothesised to the claimant as to what would have happened if his father had been asked whether the claimant should go up on the roof. The following exchange occurred (page 12 of the transcript):

"QAnd if you had gone to him that day and said: 'I am going on the roof', he would have said: 'No', would he not? A. Yes.

"QBecause that is what fathers tend to do, I am afraid, and you knew that then as well, did you not? A. What? When I was going up on the roof?

"QWhen you took the ladder out, you knew if you had gone and said to your father: 'I am going to go up on the roof', he would have said: 'No, we will get the men in'? A. But my intention was to look where the wire was hooked on.

"QOf course, but he would have still have said: 'Don't do it, we will get the men'? A. Yes. I didn't actually know I was going to go on to the roof.

"QNo. But if you had told him you were going to, he, like any other father, would have said no? A. Yes, he would have said no."

15. Content with that answer, Mr. Pooles ended his cross-examination.
16. The claimant was asked in re-examination why, in the circumstances, he went up on the roof and his answer was (page 13 of the transcript):

"A. As I repeated, to find out where the wire was hooked on to. That was the only reason I went up there. You know, I didn't know that I was going to try and walk up the roof and find out where it was hooked on to.

"QCan I ask you this? If there had been someone who was put in charge of safety ... say someone had been appointed to look after safety, even if that person was, say, junior to you in the firm, and that person had expressly told you not to have gone on the roof, what would have been your reaction then? A. Well, I wouldn't have gone on the roof.

QSorry? A. I wouldn't have gone on the roof. But there wasn't a health and safety officer."

17. I have quoted from the claimant's answers in oral evidence at some length because a principal argument by Mr. Pooles for the defendants depends on the significance of those answers and the judge's treatment of them in evidence, to which I shall shortly turn.
18. It was the claimant's case in negligence, advanced before the judge, that the roof with its slippery surface and unguarded skylights was an unsafe place to permit employees to go for whatever reason, at least unless they were provided with adequate (i.e., unslippery) footwear and boards on which to walk or crawl and that the defendant's employees should have been prohibited from venturing on it, for whatever reason. The roof was no more than 12 feet from the ground and readily accessible by a ladder which was available on the premises and in these circumstances it was reasonably foreseeable that for some reason or other an employee might on occasion legitimately venture up there - in the case of the claimant in the course of his security responsibility. While it was acknowledged for the defendant that, doing as he did, the claimant was indeed acting in the course of his employment, it was argued that the claimant's own evidence established that, so far as he was aware, no employee had gone up on the roof of the Romford premises before and that the claimant's father had always brought in specialist contractors if the roof required work or inspection. It was said that, in those circumstances, to hold that it was reasonably foreseeable that an employee would go up on the roof, or that any warning or instruction should be issued to prevent it, was to impose too high a standard of foresight.
19. It was further argued, again on the basis of the admissions made by the claimant in his own evidence, (a) that the claimant was author of his own misfortune in that he appreciated the dangers in going on the roof in unsuitable (i.e., slippery) leather-soled shoes and (b) that he accepted that if his father had been asked whether he should go on the roof he would have said no. Accordingly it was argued that despite the claimant's assertion that he would have observed any embargo on access to the roof if it had ever been intimated, a prohibiting instruction or notice would not in fact have been complied with by the claimant and that any omission of the defendant in that respect was thus not causative of the accident.
20. The judge dealt with those issues comprehensively in the following passages of his judgment. I turn to page 9, line 22:

"In addressing the question whether the company ought reasonably to have foreseen that one of its employees might decide to climb on to the roof for some reason, I remind myself of the size and nature of the company's operation according to the limited evidence place before me. I have heard only from the claimant himself. The defendants called no evidence ...

"The company consisted with a staff of seven, as I have already said, with their own separate jobs but to some extent sharing out the various practical jobs that arose from time to time in and about these premises. It seems to me, using ordinary common sense, that some of these tasks might well have involved briefly inspecting the exterior of the premises up to roof level, the gutters and downpipes for blockages perhaps, if not the roof surface itself. Such inspections might well have extended to the skylights, for leaks or damage, or for the removal of objects lodged or thrown or indeed blown on to them or other parts of the roof surface. The availability of the ladder facilitated such cursory inspections if not encouraged them. As already observed, I find it hard to think what else the ladder could reasonably have been supposed to have been available for. If, as I hold, a reasonable employer could have foreseen that inspections of this kind up to roof level might be carried out by the employees using the ladder, so that, for example, a fall from the top of the ladder could have been foreseen, is it to be said that the action of a conscientious employee in momentarily leaving the ladder and climbing on to the roof to remove some object on or attached to the roof and sustaining injury as a result, could not reasonably have been foreseen?

"In my judgment, the answer to that question must be no. It seems to me that in the circumstances of this case possible climbing on to the roof could and should have been foreseen, both in the context of the cursory inspections of the kind mentioned and also in the light of the general threat to the premises posed by vandals seen against the background of the burglary at Seven Kings. The fact that specialist contractors had been employed in the past when access to the roof had been necessary cannot, it seems to me, exclude the possibility of employees taking it upon themselves on occasions to attempt such brief or cursory inspections of their own by using the ladder provided.

"It follows, in my judgment, that the company did owe a duty of care to take reasonable steps to prevent its employees from going on to this roof and that in failing to take any such steps it was in breach of that duty. The issuing of a general prohibition or company rule wold have been one such step. Warning notices would have been another. I reject the submission that such a prohibition or rule or such notices would have been ineffective or counter-productive. Whether placed on the rear wall of the warehouse or displayed on the roof itself, such notices would have brought home to employees, including the claimant, the danger of going on to the roof and the company requirement that they should not do so for their own safety.

"I also reject the submission that the claimant would have disregarded any prohibition from his father or warning notice displayed on the premises or on or near the roof itself. I found the claimant to be a straightforward person, who was being honest and sincere when he said that he would obey his father for whom he had worked continuously since leaving school. I accept his evidence that had he been told not to go on the roof, he would not have done so, and I find no inconsistency between that and his other equally sincere answer to Mr. Pooles that he knew at the time that his father would not have allowed him to go had he asked him. It is one thing to do something you know you would be refused if you asked; but it is another thing to go against an express prohibitions. I find this claimant would not have disobeyed a clear company rule or an express prohibition from his father.

"I therefore find on the balance of probabilities that the company's failure to take any of the steps referred to above, combined with its effective provision of the ladder facilitating access to the roof, were negligent breaches of duty which caused this tragic accident."

21. In my view, those findings are unassailable.
22. Mr. Pooles has made a number of points on the wider implications for industry and employers of our upholding on appeal a case in which the central complaint of the claimant, as a ground-based employee, is that he was not prohibited by his employer from going on to roof of the premises at which he was employed, either at all or in leather-soled shoes. In effect he says, where will nannyism in the case of intelligent adults end? The answer to that seems to me to be that given by Mr. Prynne for the claimant. Cases of this kind are fact-sensitive and occur in a variety of situations. The over-all duty of the employer is to take reasonable steps for the safety of his employees against those types of risks which are reasonably foreseeable as likely to occur in the course of the employee's employment, which in turn depend upon the nature, functions, restrictions and general parameters of the employee's job and the broad areas of activity in which he is likely to be engaged or to engage himself in furtherance of his employer's interests. If there are no circumstances reasonably likely to occur which might require or lead an employee in the course of his employment to inspect or concern himself with the roof or objects placed upon it, and if no access is provided, authorised or made readily available, that is one thing. If his job is, however, of a general nature and involves responsibility for security and may foreseeably lead him to the roof for some purpose or other of a legitimate nature, that is another.
23. This was a situation in which there were few hard and fast boundaries to the functions of a small band of employees. As the judge held, it was reasonably foreseeable that someone might use the ladder available on the premises to have access to the roof for some legitimate purpose. In the particular case of the claimant, his function included responsibility for security and there is no suggestion that in doing what he did, at least to the stage of reaching roof level, he was doing other than his duty; nor is it suggested that in going onto the roof he was breaking any instruction or warning he had ever received.
24. In those circumstance, as the judge specifically found on the evidence, the type of accident was foreseeable and the absence of any instruction or warning causative.
25. Broken down, Mr. Pooles' submissions can be shortly stated as follows. He says it was not reasonably foreseeable that any inspection would take place, other than from the ground. Alternatively, if that was reasonably foreseeable, it was not foreseeable that the claimant would proceed onto the roof to inspect or to carry out any operation upon it. Again, the answer to that, in my view, is that the risk which the employer should have foreseen and against which he was required to guard was simply that of an employee having cause or at least the inclination in the course of his employment to go up on the roof for some legitimate purpose. If that was foreseeable, the fact that the detailed circumstances of the visit may not have been foreseeable does not give rise to a defence.
26. Secondly, Mr. Pooles says that if it was foreseeable that an employee might go up on the roof, it was in any event not reasonable to require the erection or posting of warning signs. He says that the danger of going on a roof in unsuitable shoes in such circumstances was self-evident, and that the suggestion that signs should be placed to that effect was really superfluous. He says this would equally apply to the suggested need for specific instructions to be given to the employees.
27. In respect of that contention, I consider that for the reasons given by the judge it was foreseeable that an inspection of some kind might be carried out using the ladder available for the purpose and, if so, it was specifically necessary to warn that no work should be done or access pursued onto the roof.
28. Finally, Mr. Pooles says that in any event it was not necessary in the case of the claimant's son to issue him with any specific instruction because he knew his father's views. So far as that argument is concerned, I read the evidence of the claimant, not as an acknowledgement that he had in mind at the time his father's attitude, merely that in hindsight he acknowledged his father would have said no, if he had been there and asked. What is apparent is that, first, the father had never made clear that the roof was out of bounds. He did not give evidence either as to that or to the effect that his son should or would have known his views. Secondly, the judge found that if such a warning or instruction had been given, the claimant would have followed it and there would have been no accident. Thus causation was clearly established.
29. I would therefore uphold the judge on the issue of negligence.
30. There was of course an issue as to contributory negligence before the judge, who apportioned blame in the proportion 50/50. Mr. Pooles had argued before him and has urged upon us that the proportion of blame upon the claimant should have been far higher as the claimant was effectively the author of his own misfortune. Again the judge gave careful and comprehensive reasons for his finding as follows:

"I turn now to the question of contributory negligence. Mr. Prynne realistically accepts that, on any view, the claimant must be held partly to blame for this accident and that his damages should be reduced accordingly. But he says that, in applying the Law Reform (Contributory Negligence) Act 1945, the court should balance the claimant's momentary act of folly on the one hand against the long-term systematic failure of the defendant to prevent the state of affairs leading to the accident from developing on the other. Mr. Prynne says that in those circumstances the greater part of the blame, which he puts at least at three quarters, should lie on the defendant.

"Mr. Pooles, on the other hand, consistent with his submissions as to the cause of the accident combined with the claimant's admitted state of knowledge of the circumstances, says that the claimant was entirely to blame or, if not entirely, then very substantially.

.....

"True it is that the defendant effectively in the form of Mr. Parker senior (unhappily - for, whatever my decision in this case, he is no doubt full of regret for the accident and its consequences) had disregarded, on my findings, its safety obligations to all his employees. No one, on the evidence, had turned their mind to the foreseeable, and that led to the accident and is the foundation of liability.

"On the other hand, the claimant, it must be said, took it upon himself to go into a situation of obvious danger. As his frank and refreshingly honest evidence confirmed, he appreciated that the roof was slippery and that his leather soles were no match for its surface. He went up the ladder determined to detach the cable rather than cut it, as suggested by Mr. Stemp, and he made the conscious decision to leave the relative safety of the ladder, which was being held by Mr. Stemp, and walk on to the roof surface knowing that the skylight (at least) was fragile. The claimant was not a novice or an apprentice but an experienced employee about to take over the reins from his father whom he knew would not have allowed him to go on the roof had he asked him. On any view, his decision was foolhardy. Against that, it must be said that he was only doing his conscientious best for the company in trying to remove an obvious hazard from the roof and to do the job properly and permanently. That hazard might be said to exist in the threat both to the security of the company's property for which he, the claimant, was effectively responsible; and also to the safety of any trespasser, whether a child or not, who might enter the company's premises and try to use the cable to get on to the warehouse roof in order to steal from the company, with catastrophic results should he fail.

.....

"In my judgment, the claimant's share of responsibility for this accident is substantial but it is no more and no less substantial than that of the defendant, and I think it just and equitable that liability in negligence be apportioned between the parties as to 50% each."

31. It is not for this court to interfere with the finding of a judge on contributory negligence unless it considers that he was plainly in error in his finding. Fine judgments on the basis that the court might have been inclined to order a somewhat different apportionment are to be avoided. The claimant's actions constituted the type of situation frequently encountered where an employee, properly concerned to do his job and solve a problem in the interests of an employer, is insufficiently cautious in respect of his own safety. While the judge said that the decision of the claimant to go up on the roof was foolhardy, it did not involve ignoring any previous instruction or amount to a deliberate flirting with danger of the kind frequently encountered in industrial injury cases. On the defendant's side, the judge has found that the possibility of such an action should have been anticipated, had the employer been safety conscious rather than simply muddling through.
32. In my view, an apportionment of 50/50 on a rough and ready basis was reasonable and there are no sufficient grounds for disturbing the judge's finding.
33. Turning briefly to the question of breach of statutory duty, the case for the claimant was that the failure of the defendant to issue instructions or institute a company rule against access to the roof or post a prohibitory or warning notice to that effect constituted a breach or breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular Regulations 13(1) and 13(3), which require that in relation to an employee's workplace the employer shall, so far as reasonably practicable, take suitable and effective measures to prevent any person falling a distance likely to cause personal injury. A breach of Regulation 13(4) was also alleged.
34. Mr. Pooles for the defendants took a number of points before the judge to the effect that regulations relied on were either not applicable or not breached. In particular he submitted that despite the wide definition of "workplace" in Regulation 2, as "any premises ... made available to any person as a place of work", the roof was not in any appropriate sense within that definition. The judge found that a breach or breaches of statutory duty had been established. Mr. Pooles has raised some interesting and arguable points. However, in the light of the clear view I have formed on the issue of common law negligence, and the fact that the judge's assessment of 50/50 contributory negligence was not varied or affected by his findings of breach of statutory duty, it is unnecessary for us to decide those issues.
35. I would dismiss the appeal.
36. LORD JUSTICE WARD: I agree.
37. LORD JUSTICE MAY: I also agree.
ORDER: Appeal dismissed; costs order in favour of the respondent; order for detailed assessment of Legal Services Commission funding. (ORDER NOT PART OF APPROVED JUDGMENT)