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 WAKEFIELD COUNTY COURT
(His Honour Judge Cockroft)

		Royal Courts of Justice Strand London WC2 Wednesday, 5th December 2001

Wednesday, 5th December 2001

1. LORD JUSTICE LAWS: I will ask Kay LJ to give the first judgment.
2. LORD JUSTICE KAY: This is an appeal from a decision of His Honour Judge Cockroft sitting in the Huddersfield County Court on 14th February 2001 by which he gave judgment to the claimant, Stephen Paul Green, for damages to be assessed in respect of personal injuries suffered during his employment with the defendant, the Yorkshire Traction Company Limited.
3. The defendant now appeals against the finding of liability with permission granted by the trial judge.
4. The facts are very straightforward. The claimant was the driver of a bus on 12th May 1997. At approximately 1.40 p.m. he was getting off the bus at the bus station when he slipped on the step of the bus and fell, striking this back against the pole which acted as the passenger safety rail.
5. The factual allegation in the claim was that he slipped on grease on the step. In his witness statement he had described it as a "large blob of grease". However in oral evidence he resiled from this description, and the judge concluded that it was not grease but that the step was wet. It was wet because it was raining on that day. The bus had been in service from 6.50 a.m. and passengers in the period of very nearly seven hours had got on and off the bus. The judge accordingly concluded that it was wet because of rain water having in all probability been trailed on to the bus by passengers.
6. Even when the allegation was of slipping on grease, it was not suggested that negligence could be established, and no such allegation was made in the pleadings. In Latimer v AEC Ltd [1953] AC 643 the House of Lords considered a case of slipping on a factory floor which had become flooded in an unusually heavy rain storm causing a mixture of water and oily coolant, normally confined to a channel, to coat the floor. The conclusion reached was that the employer was not negligent because it had done all that could reasonably be expected of it having regard to the degree of risk. It was accepted on behalf of the claimant that that decision could not be distinguished from the present facts.
7. However, on 1st December 1993 the Provision and Use of Work Equipment Regulations 1992 ("the Regulations") came into force and the sole allegation made in the claim was a breach of regulation 6(1) of the Regulations.
8. Regulation 6(1) reads:

"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

9. It was contended that the bus came within the ambit of "work equipment" and that the condition of the step amounted to a breach of regulation 6(1).
10. The judge accepted this argument and accordingly found for the claimant. It is against that decision that this appeal is brought.
11. In reaching his decision, the judge placed reliance on the decision of this court in Stark v The Post Office [2000] PIQR 105. In that case the court was concerned with an accident to a postman. The postman was riding his employer's bicycle in the course of his employment when the stirrup which formed part of the front brakes broke in two, lodging in the front wheel and causing it to jam, thereby propelling the claimant over the handle bars. The evidence was that the defect would not have been discoverable on any routine inspection. Nor would a perfectly rigorous examination have revealed it. In these circumstances negligence was not made out, but the Court of Appeal concluded that there was, nonetheless, a breach of regulation 6(1) of the Regulations. The duty under that regulation was an absolute one and did not require proof of fault by the defendants. The argument accepted by the court was that the bicycle, clearly work equipment, had to be kept in a state in which it worked efficiently at all times. The bicycle was not working efficiently when the stirrup broke and, whatever the reason for it not working efficiently, the Post Office was in breach of the regulation.
12. On behalf of the defendant in this case it is accepted that in accordance with Stark, if the step of the bus could not be said to have been "maintained in an efficient state" because of the presence of water upon it, liability would follow whether or not fault on the part of the defendant could be established.
13. However, Mr Limb, on behalf of the appellant, contends that the judge was wrong to conclude that the bus, and in particular the step of the bus, had not been maintained in an efficient state. He argues that these words are straightforward words which have appeared in a variety of statutory provisions directed at worker's safety over the years and that they have to be given their clear ordinary meaning, a meaning which has been the subject of judicial consideration over the years, in particular in Latimer.
14. Mr Limb submits that if one considers the meaning of the words as used in the regulation, it is impossible to say of the step of a bus, about which no criticism has been a made of its construction or state of repair, that merely because in ordinary use on a wet day some water has got on to the step that it has not been maintained in an efficient state. Thus, he argues, that the judge's conclusion was wrong.
15. Mr Copnall on behalf of the claimant submits that the meaning of regulation 6(1) has to be interpreted in the light of the Framework Directive (EC 89/391). The Framework Directive was adopted by the Council pursuant to Article 118a of the Treaty of Rome, which required in paragraph 2 the Council to adopt, by means of directives, minimum requirements for gradual implementation to encourage improvement as regards the health and safety of workers.
16. Mr Copnall draws attention to Article 5 of the Framework Directive, which provides at paragraph 1:

"The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work."

17. He referred to the requirement in Article 16(1) of the Framework Directive that:

"The Council ... shall adopt individual Directives, inter alia, in the area of [work equipment]".

18. This, he rightly said, led to the Work Equipment Directive (EC 89/655), which was adopted on 30th November 1989.
19. The United Kingdom brought into force a number of regulations, including the regulations to comply with both the Framework Directive and its "daughter" directives.
20. He argues that in accordance with Litster v Forth Dry Dock & Engineering Company Ltd [1990] 1 AC 546, regulation 6(1) has to be read so as to comply with the obligation contained in Article 5(1) of the Framework Directive unless it is not possible to read it in that way.
21. Mr Copnall's submission is that the purpose of Article 5(1) of the Framework Directive was to place responsibility for the consequence of no fault accidents on the employer rather than the employee. He gives three reasons why he contends that that is so:

(a)The language of the paragraph requires "ensure" to be used in the sense of "warrant" or "guarantee".

(b)Article 5(1) has to be read together with Article 5(4) which empowers a Member State to provide for the exclusion or limitation of employer's responsibility when occurrences are due to unusual and unforeseeable circumstances beyond the employer's control or exceptional events, the consequence of which could not have been avoided despite the exercise of all due care.

(c)Article 5(1) also has to be read with Article 2(2) which for certain public service activities and certain specific activities, with which it would conflict, makes the directive inapplicable but requires that safety and health of workers must be insured as far as possible in the light of the objective of the directive.

22. It is contended that if regard is paid to the obligation under Article 5(1), the relevant provision, regulation 6(1) of the regulations has to be read so that the bus step was not maintained in an efficient condition unless it was in a state at all times in which no-one would slip on it.
23. This interpretation, it is suggested, does not strain the language of the regulation and is, therefore, one that must be taken to be the correct interpretation to give effect to the relevant part of the Framework Directive.
24. On behalf of the defendant, Mr Limb responds in a number of distinct ways. First, he submits that Article 5(1) of the Framework Directive was not to place an absolute responsibility on the employer. The requirement that there should be a duty on the employer did not provide any guidance as to the extent of the duty. Such guidance could be derived by consideration of other parts of the Framework Directive and also, in this case, the Work Equipment Directive. The recital to both the Framework Directive and Work Equipment Directive made specific reference to Article 118a of the Treaty of Rome and the obligation on the Council to provide minimum requirements for encouraging improvements to guarantee a better level of protection of the safety and health of workers. The language and reference to minimum requirements was, it is submitted, hardly appropriate if the duty being imposed was in fact an absolute duty.
25. Mr Limb then referred us to Article 1(1) of the Work Equipment Directive, which again made reference to minimum requirements and which reads:

"This Directive, which is the second individual Directive within the meaning of Article 16(1) of the [Framework Directive], lays down minimum safety and health requirements for the use of work equipment by workers at work..."

26. Article 3 of the Work Equipment Directive provides the general obligations under the Directive, and paragraph 2 reads:

"Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."

27. Article 4(2) of the same directive provides:

"The employer shall take the measures necessary to ensure that, throughout its working life, work equipment is kept, by means of adequate maintenance, at a level such that it complies with the provisions of paragraph (1)(a) or (b) as applicable."

28. It is argued that the language of both Article 3 and Article 4 is quite inconsistent with the absolute duty contended for by Mr Copnall.
29. Mr Limb gains support for his argument in this last respect from the judgment of Waller LJ in Stark. At page 1012 Waller LJ said:

"Mr Storey relied on the language of Article 3 and Article 4 of the Work Equipment Directive. He suggested, and I agree, that the language of the Directive is not such as to compel a Member State to introduce absolute obligations."

30. Mr Limb secondly contends that the language of regulation 6(1) of the Regulations is straightforward and that no amount of interpretation could give it the meaning contended for on behalf of the claimant.
31. For my part I am satisfied that Mr Limb's arguments are sound, and I am of the same clear view as that reached by Waller LJ in Stark, with which Robert Walker LJ agreed, that the duty under the Framework Directive is not in any sense an absolute obligation. Member States are required to provide minimum requirement to fulfil the duty, and the precise form and nature of those obligations are then to be in accordance with the rest of the Framework Directive, and particularly the daughter directives. However, as Waller LJ concluded in Stark, nothing in the directives can justify an interpretation which weakens the obligations already in place, since the whole purpose is to improve health and safety for workers. That in itself does not in any way alter the considerations in this case.
32. Thus I am satisfied that the sole question that the judge had to ask himself was whether the condition of the step on this bus was such that it could not be said to have been maintained in an efficient state given the ordinary meaning of those words.
33. I find it impossible to conclude that a bus which is going about its ordinary every day work, picking up passengers and transporting them in weather which was not in any way out of the ordinary, can be described as not being maintained in an efficient state just because, on a rainy day, some water has got on to the step, either from the wet clothing of the passengers or from their feet. To hold otherwise would be to impose the sort of absolute duty for which Mr Copnall contended but which I reject.
34. In these circumstances I am satisfied that the conclusion to which the judge came, albeit with considerable reluctance as is apparent from his own judgment, is wrong and that this appeal must accordingly be allowed.
35. LORD JUSTICE LAWS: I entirely agree.
Order: Appeal allowed. The claimant shall pay the defendant's costs in the Court of Appeal and below assessed at £9,322 as agreed between the parties. Permission to appeal to the House of Lords refused.