England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr Recorder Cousins QC
Stoke on Trent County Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 November 2002

Mr Justice Bodey:

Introduction:

1. This is an appeal by the Claimant Darren Horton against an order of Mr Recorder Cousins QC in the Stoke on Trent County Court dated 15^th November 2001, when the Claimant’s Action against the Defendant Caplin Contracts Ltd was dismissed.
2. The basis of the appeal is that the Learned Recorder was wrong in failing to find the defendant in breach of statutory duty and / or wrong to hold that, even if there had been breaches of statutory duty, such did not cause the accident which the claimant sustained and which formed the subject matter of the action.

The Facts:

3. At the material time, the Claimant (then aged 31) was employed by the Defendant as a carpenter on a site in Walsall. As part of the conversion of offices into a public house, it was necessary to remove a suspended ceiling in a room measuring about 15ft. by 20ft. and it was upon this task that he was engaged.
4. It involved the Claimant standing on a scaffolding tower the platform of which was about 8ft. by 4ft, such platform being about 5½ to 6ft. off the ground, as found by the Learned Recorder. The shorter side of the platform had guard rails fitted, but not the longer sides. It was common ground at the trial that there were no stabilisers (or ‘outriggers’) fixed, these being extensions which can be fixed to the bottom of each leg and which extend outwards from each corner of the tower, thereby effectively increasing the overall size of its base and helping to make it more stable. As found by the Learned Recorder, there were brakes fixed on the wheels of each leg of the scaffolding tower.
5. On the 27^th October 1997, the Claimant was standing on the platform of the tower removing ceiling tiles. There was a major issue at the trial as to how he came to fall off, which the Learned Recorder resolved against the evidence of the Claimant. He held that W, a work colleague of the Claimant, following an altercation between the two of them, toppled the tower over quite deliberately by intentionally applying force with that object in mind. In so finding, the Recorder effectively accepted the accuracy of a statement made by the Claimant himself in 1998 that W "… in a rage of temper and beyond belief pushed the scaffold over…".That statement was inconsistent with the Claimant’s case at the trial (namely that he did not know quite how the tower came to be toppled, or whether it had happened accidentally).
6. In the fall the Claimant unfortunately suffered quite severe injuries, by reason of which he commenced the action leading to the Judgment against which this appeal is brought.

The Statutory Duties

7. Mr Evans QC for the Claimant relies upon three alleged breaches of statutory duty.

(1) The first is Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 (PUWER), which is headed up "Suitability of Work Equipment". It reads:

"(1) Every Employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(4) In this Regulation "suitable" means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person".

8. It is clear from the wording of these 2 sub-regulations, taken together, that the target of achieving suitability for purpose is to be measured by reference to such hazards to anyone’s health or safety as are reasonably foreseeable.
9. In my judgment, it was not at all reasonably foreseeable that W would behave as he did. It follows that the Defendant was not in breach of Regulation 5(1) and that the Learned Recorder was right so to find.

(2) The second Regulation relied upon by Mr Evans QC is Regulation 20 of PUWER which is headed up "Stability" and reads:

"Every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for purposes of health or safety."

10. Clearly the words "shall ensure" smack of absolute liability. However such a conclusion would be to ignore that the obligation (to ensure stabilisation) only arises where such is "necessary" for purposes of health or safety. This phraseology seems to me to introduce considerations of foreseeability, since a step is realistically only "necessary" when the mischief to be guarded against can be reasonably foreseen.
11. Accordingly, it seems to me that the Learned Recorder was right in dealing with Regulation 20 when he said:

" … these matters have to be considered in context. The employer has to consider whether it is necessary for purposes of health or safety to stabilise the equipment. It is true that outriggers were not employed, but it was not in my judgment to be foreseen that the equipment would be exposed to the kind of forces actually employed by W."

12. Mr Evans QC argues the proper effect of Regulation 20 as being that, if as he submits, the stabilisation of the scaffolding tower by outriggers was "necessary for purposes of health or safety" on the basis that the tower might topple in foreseeable circumstances (such as someone colliding with it by accident) then the absence of outriggers must constitute a breach of the Regulation even though the event which caused the tower to fall was something quite different, namely that W deliberately pushed it over.
13. I will deal with this argument further below under the heading ‘causation’; but in any event, I am not persuaded that it is a proper construction of Regulation 20, given the use of the words "where necessary".

(3) The third statutory regulation relied on by Mr Evans QC is Regulation 5(2) of the Construction (Health Safety and Welfare) Regulations 1996 (CHSWR) which is headed up "Safe place of work" and reads as follows:

"Every place of work shall, so far as reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there".

In dealing with this Regulation, the Learned Recorder said, "…again it seems to me, context is supremely important. The platform itself, the working place, was not inherently unsafe. It was made unsafe only because of the intervention, the unlawful intervention, which was not foreseeable of W".

14. Again, I can find no fault with that construction of Regulation 5(2). The tower as such was a safe place of work (at least when not being pushed around with a man standing on it, as did use to happen). That was conceded, and in my view rightly conceded, by Mr Evans.
15. It only became unsafe whilst it was static because someone unexpectedly came along and purposely tipped it up. The Regulation does not mention in terms "reasonable forseeability", but to interpret it without some regard thereto would be an affront to common sense. The words "any person at work there" suggest that it is safety and health in the context of the work being done (as distinct from the context of some extraneous, deliberate, unpredictable and violent act of a third party) which the Regulation addresses. Moreover, the concepts of safety and risk necessarily involve a view of what is reasonably foreseeable.
16. Applying, therefore, a purposive constructive of Regulation 5(2) I am unpersuaded in the circumstances of this case that the Defendant was in breach.
17. It follows, that in my judgment, the Learned Recorder was right to reject the Claimant’s case on the basis of the alleged breaches of statutory duty relied upon; which conclusion suffices to dispose of this appeal. However, issues of causation arise, which I propose also to deal with.

Causation

18. Even (and on the assumption) that the Learned Recorder’s construction of the above Regulations was wrong, and the Defendant is therefore taken to have been in breach of any or all of the Regulations concerned, the Claimant still has to prove that any given breach of statutory duty was causative of the accident.
19. In this respect the Recorder said:

"…finding as I have done, that there was a deliberate toppling of the scaffolding, it seems to me that it is impossible to find that, had the scaffolding been maintained in a different way, it would not have fallen over in just the way that it did, subjected to the deliberate application of force. If outriggers had been employed, some degree of force and pressure would eventually have toppled the scaffolding. We do not know precisely how much pressure would have been required, but it is far from clear on the evidence before me that greater pressure than that actually applied by Mr W in his rage would have been necessary. If Mr W was determined to topple the platform, there is no reason to suppose that he would not have been able to do so, even with outriggers. We have no evidence as to the added degree of protection that such outriggers would have provided. A similar finding must be made in relation to guard rails. If the platform toppled, as I have found that it did, there is no reason to suppose that the Claimant would have avoided injury as a result of the provision of guard rails. He has certainly not proved on a balance of probabilities that injury would have been avoided had guard rails been provided."

20. That conclusion by the Recorder reflected exchanges between himself and Mr Farrer (Junior Counsel who represented the Claimant at the trial) where the latter was submitting in effect that stabilisers (i.e. outriggers) would have stopped the scaffolding tower toppling. At this the Recorder said "…The problem is we do not know. We just do not have any evidence about the extra force that would have been required, whether it would have been within the physical capacity of Mr W, or whether it would have just required the amount of determination that he was displaying as it was. We do not know, we have not got a calculation … it is going to depend on the weight imposed by the Claimant on the platform, on his exact height, on the outriggers …" – and one might add ‘and on the Claimant’s precise position on the platform at the material time’.
21. Now, those representing the Claimant below were in a difficult position since (given the Recorder’s rejection of the Claimant’s evidence at the trial) they were not in a position realistically to have brought forward the sort of expert evidence which the Claimant’s case lacked. As Mr Grime QC for the Defendant submitted to us, the difficulty of the Claimant’s case was that the Court was denied any clear and reliable version of the facts. Mr Grime was equally right in saying that, had the Claimant’s case been at and in preparation for the trial that Mr W had toppled the scaffolding tower in a rage, then the Claimant’s expert could have carried out proper and worthwhile experiments, which might have supported the Claimant’s case that the presence of outriggers and handrails would probably have meant that this accident would not have occurred, or else that the Claimant would have suffered less serious injuries.
22. As it is, it is impossible to disagree with the conclusion of the Recorder (the person best placed to deal with all these issues essentially of fact) that the Claimant failed to satisfy the burden on him of establishing causation in respect of the absence of outriggers and/or guard rails.
23. Reverting to the argument of Mr Evans referred to above in connection with Regulation 20 of PUWER, the fact that outriggers would have stabilised the tower so that it would not have fallen in ordinary usage is not the same as saying that outriggers would probably have stopped it being toppled by an individual in a rage determined to push it over. The Recorder decided that a mere appeal to common sense was insufficient in this respect and in my judgment he cannot be faulted in that decision.

New Intervening Act [Novus Actus Interveniens]

24. Finally the Recorder dealt with ‘New Intervening Act’, describing what happened as "…a classic novus actus, in that the incident was caused by an independent and wilful act on the part of W and was not one which was to be foreseen on the part of the employer". In so saying he was anticipating the submission of Mr Evans QC in this court that there were two concurrent or contributing causes of this accident (namely the actions of W and the absence of stabilisers and guard rails) and that the latter cause ought to have been sufficient for the Claimant to have succeeded, notwithstanding the role of W.
25. I understand the textbooks do not see entirely eye to eye on the question of New Intervening Acts. The 10^th edition of Charlesworth and Percy at paragraph 11 – 65 states "… whether or not the independent act of a third party is a defence to an action for breach of statutory duty is … not free from doubt" whereas; Clerk and Lindsell states at paragraph 11.54 "… even where the Claimant can show causation in fact, the Court may still reject the Defendant’s breach of statutory duty as the legal cause of the damage in favour of some other more important factual cause with which the Defendants breach of statutory duty interacted".
26. In my view, accepting for the sake of argument the proposition that there were indeed these two causes, it is still necessary to ask whether the wholly unpredictable, deliberate and violent action of W was an event of such an impact as to obliterate the defendant employer’s responsibility. But for that action by W, the accident would clearly not have happened; whereas the Recorder was simply not able to be satisfied that, but for the lack of stabilisers or guard rails, it would not have happened. An unforeseeable, unreasonable, deliberate, violent act is a paradigm example of a new intervening cause.
27. Accordingly, even if there were a breach of statutory duty in the failure to supply outriggers and handrails and even if these breaches (contrary to the view expressed above) could properly be seen as having some causative role in the accident, I for my part would agree with the Recorder that the extraneous deliberate and unpredictable behaviour of W constituted a ‘new intervening act’ such as to break the chain of causation.
28. For my part, I can see no logical reason why this concept should not be applicable to breach of statutory duty: for whether it reflects an overall evaluation of causation or of fault (see the discussion in Clerk & Lindsell in paras 2-36ff and especially at 2-37) it is but one facet of the overall ingredient of causation inherent in any such successful cause of action, an ingredient which is itself ultimately concerned with responsibility (ibid. at para 2-02).
29. For all the above reasons, I would dismiss this appeal.

Lord Justice Rix: I agree.

Lord Justice Mantell: I also agree.