England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT WATFORD
(His Honour Judge Viljoen)

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd January 2002

1. LORD JUSTICE POTTER: This application is based upon the submission that in hearing the appeal from District Judge Gill in this case, His Honour Judge Viljoen, in relation to what was a relatively straightforward accident and an issue as to breach of statutory duty, acted in an impermissible manner, in the sense that he did not abide by the findings of fact made by the District Judge at first instance in giving his own decision. The way it is put is that he superimposed a finding of foreseeability (contrary to the view of the District Judge) upon findings of fact made by the District Judge which, in all the circumstances, he was not entitled to do.
2. This is a second tier appeal and in my view nice questions arise upon it as to whether, on the facts and a fine construction of the two judgments, that is the correct way of putting the case or not.
3. The accident involved obstruction by pallets and dies of what was essentially a passageway at a work place and an accident which occurred to the claimant when he trod upon a pallet stacked with blank pieces of metal wrapped in wax paper which produced a surface which, to the eye, was flat and solid. There were issues as to whether or not the claimant could have followed one of what were plainly more inconvenient routes to gain access to the task which he was carrying out, rather than going over what was certainly the quickest but, as was common ground, was not a safe route. The claimant, although in the ordinary way safety conscious, had overlooked the fact that there might be danger in doing as he did. There was evidence of co-workers, which the judge accepted, to the effect that "you did not do that sort of thing" and therefore what was done was not reasonably foreseeable. The District Judge based his finding that the route taken and the danger it presented were not reasonably foreseeable on that fact. The reason why it was said that you did not do that sort of thing was predominantly because of the possibility of damage to the items under the outwardly safe and solid surface, though there was an element of danger also involved.
4. His Honour Judge Viljoen dealt with the matter in this way when dealing with the question of breach of regulation 5 of the Management of Health and Safety at Work Regulations 1992. Having made observations about the fact that this was a temporary obstruction which brought it within regulation 5, as the District Judge had held, he observed:

"The person or persons who placed the obstructions there did so without any thought to the fact that it was an accessway, and more particularly the claimant's access to his place of work, namely to that particular die.

To say that this was a temporary obstruction and is therefore reasonable conduct on the part of the defendants is to ignore the fact that there was no need to stack those obstacles in that particular place. Regulation 5 imposes an absolute obligation on the part of the employer. This much is agreed by both counsel: this obstruction had no business to be there, and involved some element of risk to persons using the floor space. The presence of the pallets and the chain racks served no useful purpose by being in this particular position.

The defendant argues that despite that there were the three alternative routes to which I have already referred. The word 'efficient' contained in regulation 5 is to be seen from the viewpoint of health, safety and welfare. But where a safe route is available and the employee is injured using an unsafe route, the employer will be liable if it was reasonably foreseeable that the employee would use that route. The fact that it was the shortest and quickest route to point C does in my view make it obvious to any bystander that it was a likely and reasonably foreseeable route for an employee to take."

5. Apart from the question of reasonable foreseeability, no objection is taken to the reasoning above set out. However, it is said that, in the circumstances, the District Judge had accepted evidence that stepping on the pallet was something that you did not do and therefore found that it was not foreseen. On the other hand, it was plainly the case that the claimant, who was described by the District Judge as an experienced workmen and very safety conscious, had done just that under the exigencies of his employment which he faced on that day and in the course of getting on with the job which he had been instructed to do.
6. In refusing leave to appeal on paper I said:

"This is a second tier appeal and it involves no important point of principle or practice. The District Judge's finding that there was an alternative safe and 'more conventional' route was not the end of the matter when he also found that the 'quicker and easier' route appeared to be that taken by the claimant. In my view the judge was entitled and correct to hold that, in the District Judge's own findings of primary fact, it was a case of absolute liability subject to a finding of contributory negligence. Finally, a further appeal would be wholly disproportionate in this case."

7. I accept that there may be room for argument, upon a nice analysis of the facts and the judgment, that Judge Viljoen was interfering to some extent, or at any rate refusing to accept to some extent, the findings of fact of the District Judge. I say that there may be an argument, but I do not in fact think that it would be successful. I think that the passage which I have quoted was a fair and proper reflection of the right answer in this case. But even if the point raised before me is arguable, it does not raise a point of serious principle or practice of wider interest in other cases. Further, the sum involved in pursuing this appeal would, I am told, be no more than about £3,000, bearing in mind that the ultimate decision of His Honour Judge Viljoen was that the proper finding was one of 50/50 in respect of liability and contributory negligence. In all the circumstances an appeal would be disproportionate and I refuse permission to appeal in this particular case.
Order: Application refused.