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 PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE ANTHONY THOMPSON QC)

		Royal Courts of Justice Strand London, WC2 Tuesday, 26th November 2002

1. LORD JUSTICE ALDOUS: I invite Lord Justice Potter to give the first judgment.
2. LORD JUSTICE POTTER: This is an appeal by the claimant (with the permission of the court) given on 2nd July 2000 from a decision of His Honour Judge Anthony Thompson QC on 24th January 2002. In his judgment of that date he dismissed the claimant's claim for damages for negligence and breach of statutory duty in respect of personal injuries sustained by the claimant on the premises of the second defendant in the course of his employment by the first defendant as a contract cleaner.
3. The accident happened as long ago as 22nd October 1997. I shall call the first defendants "the employers" and the second defendants "the occupiers".
4. The facts of the accident can be shortly stated as they were found by the judge. The employers had a cleaning contract with the occupiers at their factory premises in Portsmouth. The claimant had a number of maintenance and cleaning tasks, but in particular he had to collect rubbish and waste left around the premises and empty it into what are called Biffa-type skips positioned out in the large factory yard for the purposes of receiving the factory waste and rubbish. Various skips were provided for the various types of waste involved, eg one for metal waste and one for wood waste. In particular, one was used for general waste, including paper, which was the skip used by the claimant at the time of his accident. The skip itself was in the shape of a tall square bin with a heavy hinged plastic/rubber type lid which could be lifted and placed back in an upright position just beyond the vertical when the skip was in use. However, it did not go far back beyond the vertical because of a raised metal bar across the apex of the skip, against which the lid would rest near to its hinged base. Because the skip sides were high, too high for easy tipping into the skips by the average employee, it had placed before it a platform about 2 feet high, consisting of two large wooden pallets, one placed on top of the other, being about 4-foot 6 or 5-foot square, thus providing a substantial platform on which to stand when emptying the contents of a bin into the skip. In that position, if the lid was down, it was possible to raise it, pushing it up and back against the bar so that it rested there at an angle of slightly more than 90 degrees. In fact that is how the lid would normally be left until the skip was full; i.e. open to receive waste. However, as the judge found, on the occasion of the claimant's accidence:

"... there was not any securing device so if there was a gust of wind ... [the lid] ... could close in the way which it apparently did"

5. I now turn to that occasion. On the day of the accident the claimant, who was familiar with the site, having been employed there for a long time, was performing a familiar task. He had a large plastic dustbin containing mostly paper waste which he had gathered up in the factory. He carried it out of the factory premises into the yard. It was a windy day. The lid of the skip was standing in the open position, as usual. The claimant stepped up onto the pallet platform and leaned forward to empty the bin into the skip, when he became aware that the lid was falling down on top of him. He put up his arm to protect himself. The lid fell down and its weight on the claimant's arm, coupled with the weight of his bin, caused him to fall backwards off the pallet, twisting him to the left so that he fell, landing on his left-hand side and injuring himself.
6. So far as common law negligence was concerned, the relevant particulars of negligence pleaded against the employers were:

"(a) Failing to ensure that the Claimant was provided with adequate plant and equipment in that the skip he was required to use had a design fault and/or was badly manufactured with the result that the lid could slam shut in a sudden gust of wind when it ought to have been kept securely open at all material times. ...

(c) Failing to provide the Claimant with a safe system of work.

(d) Failing to ensure that the Claimant had a safe place of work at the premises of the Second Defendant. ...

(f) Failing to inspect the skip on a regular basis or at all to ensure that it was in a safe condition for the Claimant to use."

7. So far as breach of statutory duty was concerned, reliance was placed on regulations 5(1) and (2) of The Provision and Use of Work Equipment Regulations 1992. However, because of the conclusion I have come to in respect of the allegations of negligence on the part of the employers, it is unnecessary to explore the by no means easy question of the ambit and effect of such regulations in a situation of this kind.
8. So far as the occupiers were concerned, various particulars of negligence and/or breach of the common duty of care under section 2(2) of the Occupiers' Liability Act 1957 were relied on as follows:

"(a)Failing to ensure that the lid of the said skip was securely held or tied back or restrained when in its open position, suitably strongly and firmly so that it could not close suddenly if caught by a gust of wind.

(b) Allowing an unsafe skip to be situated on the Second Defendant's premises which could thus constitute a hazard to visitors using the skip such as the Claimant.

(c) Failing to carry out regular or any checks and/or inspections upon the said skip to ensure that it was safe to use. ...

(h) Failing to discharge the common duty of care to see that the Claimant was safe in using the said skip contrary to Section 2 Occupiers Liability Act 1957."

9. The witness statements of the witnesses who were called for the defendants can be summarised as follows, so far as their relevant parts are concerned. For the employers Mr Balay, the employers' Regional Operations Manager, could give little evidence of immediate relevance. He said a Miss Milburn had been the site manager for the factory site. She was not called. He spoke simply in general terms of the health and safety policy of the employers, and said that a "site pack", kept on site but no longer available, would have included risk assessments and method statements relating to the work of the employees at the premises. He said that inspections of the site were carried out once a month to ensure cleaning standards were maintained. He said he recalled very few accidents at the site, and none similar to that of the claimant.
10. Sarah Tuck, the employers' Area Manager, confirmed that the claimant was an experienced workman who was required to clear quantities of waste and empty the waste bins into the skip, which she said was left open at all times. She recalled that there was no securing mechanism for the lid, but said that it was unnecessary because, according to her recollection, the lid when opened was left hanging down the back of the bin there being no bar to prevent it; she did not recall its being left upright as the claimant described it and as the judge had found, and indeed as appears from photographs before us of the type of skip said to have been in use on that day. She could not speak to the circumstances of the accident, saying that she was not the Area Manager at the time, the matter being dealt with by Miss Milburn and Mr Balay. However she did say, at paragraph 10 of her witness statement:

"Generic risk assessments were carried out in relation to office, shop floor and toilet cleaning. The waste bin which the Claimant was carrying at the time in question was included in these assessments. However, I believe that the task of emptying the same into the skip was not. No paperwork is available in this respect, as records were not kept at the time in question."

In that respect she said, at paragraph 15 of her witness statement:

"I recall that the wind did tend to blow fairly steadily through that area. However, as I have previously stated the lid on the skip dropped right back and flush with the body of the skip and would not have been affected by the wind in the way alleged by the Claimant."

She said, at paragraph 17:

"As far as I am aware, neither the Claimant nor any other of the First Defendants employees made any complaints or comments as to the position or accessibility of the skip in question, or in relation to the positioning of the lid, or at all.

18. There were no similar accidents or incidents to that being claimed by Mr Hannington during the course of the First Defendants contract with the Second Defendant."

11. Finally for the employers, Mr Mortimer, a work colleague of the claimant's at the time of the accident but who did not witness it, said:

"11. The claimant and I would share the responsibility of cleaning the waste bins at the Defendant's premises. This would be done by emptying the same into a 'biffa' type plastic skip. The lid to the same was quite heavy and awkward to lift. The lid would remain closed when not in use."

That last observation was contrary to what Miss Tuck said, as well as what the claimant said and the judge found.

12. Mr Mortimer also said:

"13. I had not experienced any problems with the steps leading up to the skip. I did, however, on one occasion experience difficulties with keeping the lid of the skip open whilst depositing waste. This was compounded on that occasion by the presence of high winds, which would from time to time blow through the yard and car park, due [to] the presence of a railway track running adjacent to the premises.

14. As far as I was concerned the task in question was just part of our job. I did not make an official complaint, regarding the skip. However, I did mention the incident to persons in the general office. ...

17. Neither the Claimant or I received any form of training or supervision in relation to the tasks expected of us, which for the most part merely involved the use of common sense. Further, I am not aware of any risk assessments having been carried out in relation to our duties, or in particular the 'biffa' skip."

13. For the occupiers, one witness of fact only was called, Mr Dyson, who was employed as the occupiers' Maintenance and Contract Team Leader. His statement read as follows, so far as relevant to the issues on this appeal:

"5. The Skips themselves were not owned by the Defendant. The Skips are contracted and the one at the time of the Claimant's accident was contracted from BIFFA. It would be our responsibility to decide on the size of the skip needed and to arrange how many times they should be emptied. The maintaining of the Skip was the responsibility of the owners. ...

11. At paragraph 47 the Claimant alleges that the accident could have been avoided by De La Rue by providing a means of preventing the lid from falling. However it was not De La Rue's responsibility to modify Skips. It was the Contractors' equipment. ...

16. It was purely the Cleaning Contractors themselves that had responsibility for the cleaners. This was not at any time ever the responsibility of De La Rue."

14. It was not in dispute that the yard where the skip was placed was an open flat yard which tended to be windy, and it was common ground that it was indeed a windy day on the occasion of the claimant's accident. Nor, despite the evidence of Miss Tuck to that effect, was it suggested by anybody else that the hinged lids of the general waste skips were left either closed or hanging down the back of the skip when open. The accident could not have happened in the way it did, had that been so.
15. In those circumstances, the witnesses put forward as being the supervisory staff concerned with employees' safety were cross-examined as to their knowledge of the system and the obvious danger, as it was put for the claimant, that the lid might blow down on a windy day.
16. Mr Balay was cross-examined by Dr McCormick for the claimant to the following effect:

"Q. What is very important, of course, is to see in advance ... exactly what tasks the operatives are being required to perform and then do a careful safety and risk assessment of those particular operations, to get a system in place to ensure that that particular operation can be carried out safely. You would agree with that as a general proposition.

A. Yes, I would.

Q. ... Neither you, I suggest, nor anyone else, ever evaluated that or did any risk assessment of that particular operation. Did you ever do such a risk assessment?

A. No.

Q. Have you ever seen any such risk assessment having been done or any evidence that one was done?

A. I honestly believe an evaluation of the job was made, but a risk assessment, to the best of my knowledge, was never made for this specific job.

Q. Do you feel then that ... an important task that your operatives were required to carry out was never risk assessed, and it ought to have been?

A. I can't disagree with that.

Q. Had it been risk assessed, one can think of a number of ways in which the job could have been made much safer. Would you agree with that? It was not inherently and necessarily dangerous. There were safe ways of doing this if the systems had been put in place, were there not?

A. Yes. But in hindsight, having worked the system for probably four years prior to us taking the contract, it would [not] be unreasonable to accept that the guys had evaluated their own method of work and achieved a safe method of work.

Q. Yes, but is it not the employer's responsibility to provide a safe place of work and a safe system of work? Is that not a legal statutory responsibility on the employer?

A. Yes.

Q. So you cannot rely upon some previous employer or upon the workmen themselves and say 'Oh, well, it's up to them to discharge the duties that are imposed on the employer', can you?

A. No."

17. Dr McCormick then proceeded to the two aspects of the operation which were criticised by the claimant as contributing to the accident. The first concerned the quality and status of the platform; it is not necessary to refer to that. The judge made the point that the claimant in his evidence expressly did not complain that the platform was unsafe.
18. When Dr McCormick moved to the security of the lid, the cross-examination proceeded as follows:

"Q. You have to clamber on to something in order to reach over and put the thing down. Just to be able to do that, you are going to be in a position that if the lid were to come down you would be in difficulties, would you not?

A. Yes.

Q. Looking at that lid, is it not fairly obvious, had someone inspected and thought about the matter in advance, that the lid could well have come down rather rapidly, either by being knocked, by some vibrations or, the most obvious explanation, a gust of wind? Because there was nothing holding the lid back, was there? It wasn't secured from the ground or to the base or to any stable structure. It was just standing more or less upright at something approaching 90° and could have fallen down with relatively little force being applied to it, could it not?

A. I cannot disagree with what you are saying.

Q. That being the case, I suggest that had someone ... been charged with doing a risk assessment looked at it, it is a point that would have been obviously and readily picked up. Would you agree with that?

A. Yes. But, as I said earlier, I really do believe that the situation had been evaluated. It just had not, unfortunately, been documented on a risk assessment.

Q. Yes, but you do agree with me that had someone done a risk assessment of that particular operation before the accident they would have realised that there was an obvious danger there?

A. Yes."

19. The last passage to which I would refer in Mr Balay's cross-examination is this:

"Q. You say you were not responsible for the upkeep of the skips, the steps or the bin. It is perfectly true that you were not the ones who hired them nor were you the ones who owned them. But, I suggest to you, what you were responsible for was that they were in a safe condition and represented a safe place of work, and you were responsible for them to that extent by virtue of your responsibility as an employer. Do you accept that you had all the full responsibilities of an employer to Mr Hannington at the time of his accident?

A. Yes. But I don't accept that we had the responsibility of the fabric.

Q. But if the fabric were to pose a danger to any one of your operatives, then I suggest ... that it is in fact your responsibility as an employer to ensure that your employees are working in a safe place, whether or not you own that place and whether or not the equipment is yours. ... What do you say about that?

A. Exactly what I said a few moments ago. I accept what you are saying and we have learnt a lot and our risk assessments are second to none now."

20. Miss Tuck was engaged on the question of whether or not the lid was left in a position down the back of the skip. She was referred to other evidence of the photograph and the type of skip, and she recognised that she may well have been mistaken. Following that, the position was reached as follows:

"Q. If it [the lid] ... was standing more or less something close to a 90° position and resting in there, a bit like a car bonnet that would be up and if it has not got anything propping it up then it could easily come down, could it not?

A. Yes, quite possibly.

Q. Unless it had some sort of hydraulic mechanism that would stop that. And it did not have anything of that sort, did it?

A. I can't remember.

Q. Just simple hinges, was it not?

A. From what I can remember.

Q. There was nothing to slow the swing of the lid once it came down.

A. As it has been proven, I've not remembered the skip very well. So I'm probably not the best person to ask."

21. Mr Mortimer, the claimant's work colleague, confirmed the tendency of the wind to blow the skip lid shut. At one point the cross-examination went as follows:

"Q. So far as the skip itself is concerned, you say that you had on one occasion some difficulties with keeping the lid open whilst depositing waste.

A. Well, there was the odd occasion when the wind blew a little bit and you had to sort of stop it as it was coming down. That's all you could do if you were sort of there at the time and it came down.

Q. On one occasion, you say?

A. Yes.

JUDGE ANTHONY THOMPSON: He said the odd occasion, I think you said, did you not?

A. Well, the odd occasion the wind might -- as you were out there, it might go and then you sort of put your hand up if you were lucky enough to see it coming towards you, of course."

Then a little later:

"Q. The problem that you have described of the occasional time that the lid would be blown by the wind, it was not a sufficient problem for you to report it either to Mitie people or to De La Rue people, was it?

A. Well, no, because, as I say, it was a thing which was an ongoing thing that used to happen now and again, you know. Really we thought that the firm should have supplied a better system for keeping the lids back.

Q. But you did not do anything about that, did you, Mr Mortimer?

A. Not at the time, no. As I say, the actual firm that supplied the bins, we thought.

Q. Are you saying that you thought it was a problem for Biffa?

A. Well, really, because I would have thought that they should have supplied a better way of keeping the lids back.

Q. But I am right, am I not, that it was not a sufficient problem to you that you felt it was something that you should talk to your employer Mitie about?

A. No.

Q. Nor anyone from De La Rue like Andy Woods?

A. No, because there's a lot of things that used to happen at different times and that. I mean, if you went and reported every little item, you'd be in and out all day long.

Q. As you say, 'every little item'. You did not think this was something that threatened your safety.

A. No. ... I had it happen maybe a couple of occasions.

Q. Over the entire time?

A. Yes, but I was lucky at the time. I managed to save -- to sort of put my hand up to save it from falling.

Q. Were those particularly windy days?

A. Well, as was stated before, I believe, it was very windy round that area anyway most of the time."

22. Finally, it was put to Mr Mortimer that, if the lid got forward of the 90-degree line, it would come down quite rapidly:

"Q. It just needed a bit of wind to catch it at the top and over it would come?

A. Yes.

...

Q. Just in terms of when you encountered it blowing down, when you actually saw it blowing down, how many times do you think altogether, prior to Mr Hannington's accident, did you see this thing blowing down? ...

A. My own personal experience is about a couple of times, maybe three, something like that.

Q. Two or three times.

A. Yes.

Q. And, as you said, you were lucky, it did not actually hit you. ...

A. Yes. The wind was there, I was putting stuff in, and then I see the bin -- the lid coming down and put my hand up luckily enough to save myself.

Q. You said you thought the firm should have supplied a better system for keeping the lids back?

A. If they'd have had a chain or something on there with a hook from the lid to the bin or something which was to hold it back, that would have been a more suitable idea."

23. Mr Mortimer did say that he had never made any formal complaint, but he had mentioned the incident round the office.
24. The submissions of the parties were short, as was the judgment of the judge, a transcript of which is before us. Having made his findings of fact as to the circumstances of the accident, he referred to the case as advanced in court in the following terms:

"In fact the case as advanced yesterday and today on behalf of the claimant was that there was no securing mechanism and in fact the claimant said that he knew that the wind did cause this lid to shut and indeed sometimes people shut it in any event to prevent the wind from blowing any of the rubbish out of the skip and about the yard, as this was apparently quite a windy area. One of the devices which he had employed to keep the lid open was to tie it with a piece of string, but he found the Biffa operatives when they came to empty the skip tended either to cut through the string or just remove it and so he had not bothered to do it on this occasion.

As I say, there are variations in the accounts which he gave. I am satisfied that Mr Hannington is an honest man. I do not think he is in any way inventing his explanation which he gave to the court, but obviously there are these variations, although the differences between them may be more matters of semantics than of significance."

25. The judge then turned to the way in which the case was put against the employers, referring to the allegation of failure to provide proper plant or equipment, in that the lid could slam shut with a sudden gust of wind and ought to have been kept securely open, but also as failure to provide a safe system of work; finally, failure to inspect the skip regularly or provide proper supervision for the claimant. The judge also referred to the alleged statutory breaches. He then referred to the repetition of the particulars of negligence against the occupiers and relied on as a breach of section 2(2) of the Occupiers' Liability Act, in that "there was a failure to make the premises safe for the claimant who had to work there, so far as reasonably practicable."
26. (It is perhaps worth saying in parenthesis that that is not an accurate summary of the occupiers' duty under section (2)(1)-(3) of the Occupiers' Liability Act: see further below).
27. In relation to the allegation that the platform provided was unsafe or slippery, the judge, in my view rightly, relied on the evidence of the claimant himself that the platform was solid and he did not regard there as being anything wrong with it. That allegation has not been pursued upon this appeal.
28. Dealing with the lid, he also rejected the suggestion that it was itself defective, relying on the evidence of the claimant and Mr Mortimer in that regard. He said this:

"So far as the lid of the skip was concerned, there again the suggestion that it was in some way defective is I think completely untenable. This skip had a lid which opened. When it was in the open position it was at an angle of slightly more than 90 degrees, resting backwards against a bar, but of course there was not any securing device so if those was a gust of wind it could close in the way which it apparently did on this occasion."

29. He moved to consider the evidence of the claimant that he had never himself seen or known the lid to be blown down in the way described, and the evidence of Mr Mortimer that he had known it blow down on a couple of occasions or so. He then dealt with the matter compendiously as follows, without referring again to the absence of any securing device. He said:

"So I am satisfied that there was nothing to suggest that there was anything defective about the lid. Really the issue, so far as liability is concerned, is this, was this really an unsafe system of work? Should there have been some sort of risk assessment, or some advice given, or some instruction given, to Mr Hannington about the way in which he should empty the contents of bins into the skip?

Both he and Mr Mortimer were realistic about it and basically what their evidence came to was this, that this was the sort of job there you used your commonsense, and I think really that is about the measure of it. Mr Mortimer said, having mentioned the couple of occasions when the lid had blown down, that he could not remember telling anyone about it, either from Mitie, his employers, or De La Rue, and I think the reality of the situation was that neither Mr Hannington nor Mr Mortimer regarded this as a particular hazard. Of course in a high wind I suppose anything can be a hazard, and that must be the reality of the situation and when one looks at the basic situation it seems to me quite clear that if you have got a dustbin with a lid and there is a gust of wind there is always the possibility that the gust of wind will either open up the lid if it is closed, or blow it shut if it is open.

For my part I cannot see that there is anything negligent on the part either of the employers or of the occupiers of these premises in these circumstances. It seems to me one of the ordinary hazards of life that on a windy day things do blow about, and it was not something of which either the first defendants as employers were aware or the second defendants were aware as occupiers, any more than one might say, everyone with a modicum of commonsense would be aware that on a windy day things do get blown about and one has to take precautions accordingly."

30. The judge went on to hold that no breach of common law or statutory duty had been established against either defendant, and he therefore did not deal with the question of damages.
31. It is the last sentence quoted in paragraph 29 above, apparently uttered by the judge as his reason for finding absence of any duty upon the defendants towards the claimant, which Dr McCormick particularly focuses upon in this appeal.
32. So far as the employers are concerned -- and I shall deal first with the case against them -- Dr McCormick makes the following submissions.

(1) The statement of the judge seems to suggest that he regarded an employer as exempt from taking precautions for the protection of his employee in circumstances where what happened could properly be described as one of the 'ordinary hazards' of life. At the same time the judge recognised that on a windy day, when things get blown about (and by implication this included the use of the skip when in use) "precautions had to be taken accordingly". Again by implication, the judge was suggesting that the duty to take such precautions (unspecified) could properly be left to the employee. He did not specify how this should have been done or what the employee should have done.

(2) This approach is at odds with the true nature of the employers' duty to the employee, in which it is well recognised that, in so far as it is practicable to do so, it is the duty of the employer to guard his employee against risk of harm from the ordinary hazards which foreseeably arise in the course of his employment, providing him with a safe place of work and with equipment which can be safely used in the course of that work, including, in this case, use of the skip in windy conditions, regularly encountered in the factory yard.

(3) On the evidence before the judge, not only had Mr Mortimer spoken to the risk, and the couple or so of occasions on which he had experienced a lid falling, but the supervising witnesses for the employers had themselves recognised the risk, recognised that it could and should have been covered by a risk assessment exercise, but admitted it had not. Nor did they suggest that if the risk had been recognised it could not have been avoided or prevented in one of a variety of ways, including: (i) a security mechanism on the lid of a skip; (ii) a request for a skip with a hydraulic or other mechanism to prevent the lid falling rapidly; (iii) positioning the skip with room for the lid to be rested backwards along the back of the skip, provided that the skip had no bar; (iv) a wedge or pole to wedge the lid open; (v) placing the skip in a sheltered area of the site, if one could be conveniently found, or if not, creating some kind of windbreak so far as the lid was concerned.

33. Dr McCormick has referred us to various familiar authorities on the nature and extent of the employers' duty, to which I do not consider it necessary to refer for the purposes of dealing with employers' duty or its breach in this case.
34. In the passages from the evidence which I have quoted in extenso, the employers recognised their duties of evaluation and assessment of the task to be performed, yet again they had failed to identify or take precautions or give instructions to prevent the occurrence of an accident of the type which happened and of which the risk was readily foreseeable. In these circumstances it is clear to me that they were breach of their common law duty of care towards the claimant.
35. What the employees themselves foresaw as likely or worthy of complaint can at best be a guide, but not the test, of what the employers should have foreseen or done to discharge their duty. The risk of the lid falling down in a wind was there to be recognised and was obvious, as the judge found. It was also one which the employees would inevitably encounter in the course of doing their work in what was recognised to be a windy yard. That being so, an appropriate and simple mechanism to avoid such an occurrence could and should have been provided, despite absence of any specific previous complaint from the employees concerned.
36. Without discourtesy to the gallant efforts of Miss Goolamali for the employers to argue the contrary, those efforts have principally been directed to a somewhat strained interpretation of the judgment, rather than the content of the evidence or the implications of the judge's primary findings of fact. I hope I may be forgiven for not elaborating upon her submissions. As I have indicated, I accept the submissions on behalf of the claimant.
37. Turning to the position of the occupiers, Dr McCormick has sought effectively to repeat his previous arguments as though they applied mutatis mutandis. In this respect it seems to me he is in error, certainly so far as his allegations of breach of the Occupiers' Liability Act are concerned. In that respect, the degree and nature of the occupiers' duty to a visitor is different from that of the employer towards his employee. Subsections (2) and (3) of section 2 read as follows:

"(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

38. It is the submission of Mr Green, for the occupiers, that while it must be accepted that the claimant was a visitor to the premises for the purposes of carrying out his cleaning duties, the occupiers were entitled to view him in that context, i.e. that the purpose for which he was invited or permitted be there (see subsection (2)) was in his capacity as an experienced industrial cleaner, working for a respectable and experienced firm of cleaners, who themselves regularly inspected and provided supervision for their employees, including the claimant, in the course of his duties. As such they might reasonably be expected to carry out safety assessments in respect of their staff and their tasks in order to satisfy themselves that their system of work, using the equipment supplied or available, was safe and efficient for their purpose.
39. Mr Green submits that, on the face of it, and in such circumstances, the degree of care and want of care ordinarily to be looked for in such a visitor (see subsection (3)) would be an ability safely and sensibly to empty bags or bins of refuse into skips supplied for that purpose, and that the occupiers, having hired and produced modern skips for the placing of the rubbish claimed from the factory, could expect the employers' employees, if they were not satisfied with the equipment or concerned that such equipment might prove dangerous in the conditions in which it was to be used, to bring the matter to the attention of the occupiers (whether directly or through their supervisors) so as to obtain a different type of skip.
40. Mr Green submits that the situation expressly provided for in section 2(3)(b), which refers to special risks ordinarily incident to the calling of the visitor, is but an illustration of the wider test or criterion of the degree of care ordinarily to be looked for in a visitor. Vis-á-vis the claimant, the occupiers were not under a duty of risk assessment of the kind now broadly recognised as affecting or required of employers in relation to the work of their employees.
41. In answer to this, Dr McCormick accepts the force of the argument so far as it goes, but asserts that, in the circumstances of this case, the occupiers assumed a higher duty of care by reason of the fact that they themselves were responsible for the placing of the skips in their yard, and had themselves placed them in a position where their open lids might be affected by gusts of wind in respect of which there was a foreseeable risk of injury to users of the skip generally, including the claimant.
42. I have considered that argument carefully, but in the circumstances of this case I reject it. I would accept the submissions of Mr Green. Nor do I think the position is improved for the claimant by reason of an assertion of breach of the ordinary common law duty of negligence based on the foreseeability to which the employers' witnesses admitted.
43. Again in this context it seems to me that the claimants were reasonably entitled to rely on the opportunity which the employers had for inspection and protest if they were not satisfied with the prima facie up-to-date and satisfactory equipment provided and its use by the employers' experienced employees. There was no evidence, so far as I am aware, that the occupiers were actually aware of a particular wind hazard or of the unsafe or unsatisfactory nature of the operation of the lids if left open, or that the employers were not providing any protection or instruction so far as their cleaning staff were concerned.
44. Absent the specific task of risk assessment which the employers bore, but which vis-á-vis a non-employee was not in my view incumbent upon the occupiers, I consider that there was no obligation to act so as to provide protective measures, the need for which was unknown to the occupiers.
45. In so far as it is sought to rely on the concessions of Mr Dyson in cross-examination, these were made after the event and in a mood of concern and regret. They did not in my view amount to a departure from the position which he essentially maintained, that the safety and operation of the skip was a matter for the suppliers, Biffa, on the one hand and for the employers on the other, upon whom lay an obligation to inform the occupiers of any concerns which they might feel about the safety of the skips provided.
46. In these circumstances, I would allow the appeal of the claimant to the extent of finding liability in negligence against the employers, but I would dismiss the appeal as against the occupiers.
47. LORD JUSTICE ALDOUS: I agree.

ORDER: Appeal against the first defendant on liability allowed with costs here and below; order of the judge set aside; judgment for the claimant on liability against the first defendant; claim against the second defendant dismissed with costs here and below; claim for damages be remitted back to the Portsmouth County Court for the assessment of the damages to be paid by the first defendant, to be heard by a different judge; consideration of damages at large; case management conference; detailed assessment of all costs.

(Order not part of approved judgment)