England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HHJ BROWN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2004

Lord Justice Latham:

1. On the 13^th January 2000, the appellant lost his left thumb and index finger when using a circular saw provided by his employers, the respondents. The judge after a trial on the issue of liability concluded that the appellant had not established that the injury was caused by any negligence or breach of statutory duty on the part of the respondents. He accordingly dismissed the claim. The appellant now appeals to this court.
2. The appellant was born on the 25^th February 1972, and was therefore almost 28 years old at the time of the accident. He was a time served joiner with many years experience as a site joiner. He had been employed by the respondents in that capacity since about 1996. At the time of the accident, he was working with another joiner, Robert Webb, in a team which was replacing wooden window frames and wooden fascia boards on residential properties with new UPVC window frames and fascia boards as part of a planned maintenance programme. That programme had started in April 1999. The appellant had joined the team in about August 1999. Although salaried, all those in the team were entitled to bonuses based on the amount of work done.
3. The site supervisor was Philip Whitlow. He gave evidence, which the judge accepted, that shortly after the appellant had started work on the site, the appellant and Mr Webb asked him whether they could use a portable bench saw in order to trim the fascia boards rather than having to trim them by hand, in order to save time. That request was conveyed to Mr Ankers, who was the building superintendent. Mr Ankers then had a meeting with the appellant and Mr Webb at which he agreed to provide a portable bench saw and gave them instructions that the bench saw was to be unplugged whenever left unattended and when not in use was to be kept in a van on the site. Mr Ankers accepted that he did not arrange for any risk assessment to be carried out, nor did he give any instructions or training to the appellant and Mr Webb. He considered that they were experienced enough to know how to operate such a saw safely.
4. The saw which was provided was a conventional bench saw with the teeth of the saw emerging from the bed of the bench, protected by a guard about which no complaint is made. The saw was used on a regular basis throughout the autumn of 1999. Neither the appellant, Mr Webb nor anyone else made any complaints either to Mr Whitlow or to Mr Ankers about its suitability or about any problems they had working with it. It is, however, common ground that there was one potential difficulty in using the saw to cut the fascia boards. The fascia boards were 5 metres long. The bench was itself only a few feet long. As a result the fascia boards, which were flexible, had a tendency to bow as they passed over the saw bench unless they were supported in some way. This could have been achieved by the provision of a run off bench, that is a second work bench on to or from which the fascia could be fed, or by the fascia being supported by whoever was not carrying out the cutting at the time. The judge made no finding as to whether or not the appellant or Mr Webb did help each other in this way. What is certain is that no run off bench was provided.
5. The bench saw was used thereafter without, on the judge's findings, mishap or complaint and in particular without any request from the appellant to either Mr Whitlow or Mr Ankers for a run off bench. The judge did not accept the appellant's evidence that he had requested one. The only witness to the accident itself was the appellant. He gave an account of what happened to Mr Ankers at a meeting on the 18^th January 2000. He first said that he did not know what had happened but then that he thought he may have sneezed or coughed when using a push stick causing him to move suddenly or stumble forwards putting his hands out in front of himself and down on to the saw bench. The judge concluded that that was a spontaneous account, and not in anyway the result of any suggestions on the part of Mr Ankers. That account was repeated in the report made by the Health and Safety Inspectorate's representative dated the 27^th January 2000 The appellant added that there could possibly have been a "kick back". This was confirmed in the statement that he made to the Health and Safety Executive on the 22^nd February 2000 when he described how he heard "a very loud bang possibly caused by kick back from the saw blade." At that time he considered that there must have been something wrong with the type of blade.
6. In his evidence at trial, he again repeated that the first thing he knew that was wrong was a very loud bang. He then said that he was "99% sure" that what had happened was that the far end of the fascia board snagged on the ground, that the board then "bellied up" on the bench for a moment before the fascia board freed causing it to shoot forwards quickly towards the blade. He denied any suggestion that what in fact had happened was that he had come to the stage where he should have used a push stick to feed the fascia towards the saw blade, rather than his hand.
7. As to the method of working, the judge heard evidence from Mr Ankers and Mr Whitlow, and also from two experts, Mr Holden and a Mr Glenn. Mr Ankers told the judge that he did not consider that it was necessary to give any instructions to the appellant as to how to work a bench saw. It was a perfectly simple piece of machinery; the appellant was a skilled joiner. If there was a problem about bowing, he would have expected the appellant himself to appreciate that he needed a work bench to support the fascia, or the assistance of Mr Webb. He would have been concerned had he seen the appellant using the bench saw without any support for the fascia. Mr Whitlow also considered that the appellant was sufficiently skilled and experienced to have been able to determine himself what was necessary to ensure that the saw could be used safely. He said that on most of the occasions when he saw the appellant using the bench saw, he was being assisted by another worker.
8. Both experts agreed that it was not appropriate for an employer to assume that a joiner was competent and able to assess all the relevant risks himself. The employers should have carried out a risk assessment so as to identify the possible precautions which needed to be taken and to have advised the appellant accordingly. The judge records that the essential difference between the evidence of the two experts was the extent which that would, in the event, have been a counsel of perfection, in the sense that it would have made no difference. The judge concluded that Mr Glenn was saying essentially that the appellant knew full well that there should have been a second work bench or that he should have had assistance from, for example, Mr Webb. Accordingly it would have made no difference if the employers had told him so. A further difference between the experts was that Mr Holden had no difficulty in accepting the appellant's account as given at trial as an explanation as to how the injuries could have been occasioned. Mr Glenn on the other hand had difficulty in envisualising how the snagging of the board and its release could have produced the injury in question.
9. The judge's conclusions as to how the accident occurred were set out at page 29 of his judgment as follows:

"I am satisfied that the reality of this situation is the claimant cannot say what actually took place. He has given differing accounts and he now puts forward an explanation that really only amounts to yet another theory. Both Mr Ankers and Mr Whitlow also forward another possible explanation and all the explanations suggested seem entirely consistent with the evidence which has been presented to me. There were no independent eye-witnesses, and because of the nature of the injury the site was immediately disturbed afterwards by Mr Webb.

In all of these circumstances I am not satisfied on the balance of probabilities that Mr Sherlock was injured as a result of the sequence of events that he has described in evidence."

10. He identified the appellant's case at page 30 as follows:

"Mr Wolfenden says the saw was simply taken to the site and the claimant left to use it without a proper risk assessment, without proper training and effective supervision. That the defendant should have reasonably foreseen that this kind of accident could have occurred and in these circumstances because, says Mr Wolfenden, they are responsible at common law."

11. He then went on to note that the respondents had conceded that there had been a breach of Regulation 20 of the Provision and Use of Work Equipment Regulations 1998, which provides:

"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."

12. The judge further accepted that there was a duty upon an employer to protect even experienced employees. His conclusions, at page 31C of the judgment were as follows:

"But it is all a matter of balance. That is, having regard to the nature of the operation, the nature of the equipment being used, the nature of the risks involved and the nature of the experience of the particular workman.

Mr Sherlock is a tradesman of many years experience and I am satisfied he was well familiar with the use of portable saws such as this one. The alterations to the fascia boards were not significant and amounted only to trimming that would take a short period of time. The portable saw, if used with a run-off table or second man, is a safe method of work. Of course, the duties placed upon employers, both at common law and by statute, are very important but it is not counsel of perfection and with the benefit of hindsight it is very easy to be wise after the event.

This was a most dreadful and unfortunate accident that will continue to have very serious consequences for the claimant. It is well known that accidents do happen with this type of equipment and there must be a duty upon an employee to try and ensure his own safety. Had Mr Sherlock been given any additional training or instructions on the use of this machine in August 1999, then I am satisfied it would not have made any difference to what took place on 13^th January 2000. Mr Ankers had given the claimant instructions on safety aspectds, that is as far as the public was concerned. And knowing of Mr Sherlock's skill and experience, in my judgment, he was entitled to assume the saw would be used in a proper fashion. Mr Sherlock had used this saw for about three months prior to his accident and it must have been very obvious to him that he should have either a run off table or second man involved and that he should keep his hand well away from the saw blade.

In my judgment, even the most experienced worker who had used this saw for a period of months would have known that that was an obvious fact. I am satisfied that the fact Mr Sherlock chose not to follow this procedure shows he was entirely the author of his own misfortune. Therefore, and regrettably as far as the claimant is concerned, I do not find the defendants to have been negligent and, in my judgment, any breaches of the regulations were not causative of the accident. Accordingly I must give judgment for the defendants."

13. Mr Woolfenden first submits that the judge failed to deal adequately or at all with the respondents' common law duty of care. This required them to provide a safe system of work, safe equipment, and proper supervision. Underlining that duty of care are the provisions of Regulation 3 of the Management of Health and Safety at Work Regulations 1999. He accepts that a breach of these regulations does not give rise to any legal liability, but submits that they are important in helping to define the common law duty of care in any given situation. Regulation 3(1) provides:

"Every employer shall make a suitable and sufficient assessment of –

(a) The risks to the Health and safety of his employees to which they are exposed whilst they are at work ….

For the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions …."

14. He submits that this required the respondents to consider the extent to which there were any risks associated with the work, particularly any risk of a breach of Regulation 20, referred to in the judge's judgment, and below. Both experts accepted that this duty existed. There was a clear breach of that duty. And the judge has failed to explain why that was not causative, at least in part, of the accident.
15. He further submits that there were breaches of statutory duty which do give rise to civil liability in themselves. The most important are those contained in the Provision and Use of Work Equipment Regulations 1998. The judge noted and accepted that there had been a breach of Regulation 20. That regulation required the respondents to "ensure" that the work equipment (which for this purposes it is common ground comprised both the saw and the fascia as it passed through the machine) should be stabilised by clamping or otherwise. The solution, accepted by all, is that a run-off bench should have been provided or a second man should have been present at all times in order to support the fascia board. Since the respondents neither provided a run-off board, instructed the appellant to obtain or make one, nor took any steps to ensure that one was used, or that alternatively there were always two men working at the saw, the respondents cannot escape liability under this regulation. The judge; it is submitted, failed adequately or at all to explain why he held that the admitted breach of this regulation was not "causative".
16. He submits that there were further breaches of those Regulations which the judge failed to deal with at all. He relies upon Regulations 8(1) and 9(1).
17. Regulation 8(1) provides:

"Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment."

18. Regulation 9(1) provides:

"Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the method which may be adopted when using the work equipment any risks which such use may entail and precautions to be taken."

19. The respondents admit that no instructions or training were given to the appellant in relation to the use of the saw bench. Accordingly, it is submitted, the judge should have found that there were breaches of both these regulations.
20. Finally, it is submitted that there was a breach of Regulation 4(1) of the Manual Handling Regulations 1992. This provides:

"Each employer shall –

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured –

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them having regard to the factors which are specified in Column 1 of Schedule 1 to these Regulation and considering the questions which are specified in the corresponding entry in column 2 to that Schedule,

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practical, and

(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonable practicable to do so, precise information on –

(aa) the weight of each load,

(bb) the heaviest side of any load or centre of gravity is not positioned centrally."

21. Again it is submitted there was a breach of this Regulation in that there was a clear risk of injury as a result of the appellant, or indeed Mr Webb, handling the fascia board, and the respondents failed to carry out any assessment of the risk so as to reduce it to the lowest level reasonably practicable. Further, the respondent did not in their defence, plead that it was not reasonable or practicable to take any of those steps. Accordingly the judge should have found that there was such a breach, and failed to do so.
22. Mr Woolfenden acknowledges that there was clearly material, as a result of the judge's findings as to the appellant's own knowledge of the risks involved, to justify a finding of contributory negligence. However, he refers us to the passage of the speech of Lord Hoffmann in Reeves –v- Commissioner of Metropolitan Police [2000] 1 AC 360 at page 371 where His Lordship pointed out that the question to be determined is the relative responsibility of the two parties, not degrees of carelessness, and that that question has to take into account the policy behind the rule by which the liability is imposed. Accordingly, he submits that the respondents must accept the major part of responsibility as the common law duty of care, and in particular the Regulations are designed, at least in part, to protect the employee from the consequences of his own negligence.
23. Mr Alldis, on behalf of the Respondents, submits that the claim was bound to fail once the judge had found that his explanation as to how the accident happened had been rejected. The judge was accordingly right to conclude that the appellant had failed to establish that any of the alleged breaches of the common law duty of care and of the Regulations had caused the accident. He further submits that the crucial findings of fact by the judge were that the respondents were entitled to assume that the appellant had sufficient training and experience to be able to use the bench saw safely without the need for any instructions. In effect he acknowledged that in his own evidence. The appellant's case was, although rejected, that he had specifically asked for a run-off bench and it had not been provided. It follows, it is submitted, that he was therefore well aware of what was necessary in order to ensure that the operation could be carried out safely; and it would have taken him no time at all to have provided himself with a run-off bench had he considered it necessary. It was therefore a case where the judge was entitled to ask himself the question "who is really to blame for the accident?" That was the question which Pearson J held was the relevant question in situations such as this in Ginty –v- Belmont Building Ltd [1959] 1 All ER 414 at page 424 A. This approach was approved, it is submitted, by the House of Lords in Boyle –v- Kodak Ltd [1969] 2 All ER 439. In essence that was the approach the judge clearly adopted in the present case. He was entitled to do so; and on the evidence before him, it cannot be said that his decision was wrong. If he was wrong, however, his conclusions as to the skill and experience of the appellant, together with the appellant's own evidence indicating his appreciation of the risks make it plain that this was not a case where the employer's negligence or breach of statutory duty would have protected the appellant from the consequences of momentary inattention. The appellant had deliberately taken a risk which had sadly resulted in injury.
24. Despite the robust attractiveness of Mr Alldis's argument, I cannot accept it. First, as to the cause of the accident, it is true that the judge rejected, or perhaps to be more exact, did not accept, the appellant's account. However, the judge's conclusions were that it should have been obvious to the appellant that he should have either had a run-off table or a second man involved and should keep his hand well away from the saw blade, and that the fact that he chose not to follow this procedure was the reason for the accident. In other words the lack of a run-off table or a second man was at least a cause of the accident. Both experts said that a risk assessment would have identified this as a requirement, and that a risk assessment should have been carried out. In the circumstances of this case, I cannot see that the risk assessment needed to have been the formal procedure envisaged by Regulation 3 of the Management of Health and Safety at Work Regulations 1999; but at least there should have been some informal assessment by Mr Ankers or Mr Willmot identifying the need for the run-off table or the presence of the second man.
25. Even though the judge was entitled to conclude that the appellant was sufficiently well trained and experienced to have identified the requirement himself, that does not seem to me to be sufficient in itself to meet the common law requirement that the respondents should provide proper equipment and a safe system of work. At the very least the question should have been asked as to what was required so as to ensure that the appellant was alerted to or reminded of the need for either a run-off table or a second man. That was essentially what both experts agreed should have happened. If that had been done, both parties, that is the employer and employee, would have identified what was required and even if the only step taken by Mr Ankers had been to tell the appellant that he should construct a run-off bench himself there is nothing in the evidence to suggest that the appellant would not have followed such an instruction. The purpose of a risk assessment in a case such as this is to ensure that what may appear to be obvious is in truth obvious, in the sense that both parties have appreciated the risk. I say both parties, because it also provides the opportunity for an employer to ensure that he has taken appropriate steps to protect his employee.
26. Turning to the breaches of Regulations, I entirely accept that on the findings of the judge, there was no breach of Regulation 9 of the Provision and Use of Work Equipment Regulations 1998. There is nothing to suggest that the appellant was not adequately trained for the purposes of using the work-bench. However, essentially for the reasons I have already given in relation to the breach of the common law duty of care, it seems to me that there was a breach of Regulation 8 in that the need to use a run-off bench could and should have been identified and the appropriate instruction given. Again for the reasons I have already given, I do not consider that it would be a justifiable conclusion that had such instructions been given, they would have been ignored by the appellant. The conclusions that I have already reached mean that there was, further, a breach of Regulation 4 of the Manual Handling Regulation 1992.
27. Accordingly the question is whether or not the judge was entitled on the evidence to conclude that he could absolve the respondents from liability on the basis that the accident was entirely his fault in the sense envisaged by Pearson J in Ginty. That was a case in which a workman fell through an asbestos roof because he was not using crawling boards. The employers had provided crawling boards; the reason that the employee fell was simply and solely because he had failed to use them. The relevant passage at page 424 is as follows:

"Whose fault was it? I shall refer to the decided cases to demonstrate what I have said. If the answer to that question is that in substance and in reality the accident was solely due to the fault of the plaintiff, so that he was the sole author of his own wrong, he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident. There may have been a lack of proper supervision or a lack of proper instruction. The employer may have employed for this purpose some insufficiently experienced man or he may in the past have acquiesced in some wrong behaviour on the part of the man. Therefore, if one finds the immediate and direct cause of the accident was some wrongful act of the man, that is not decisive. One has to enquire whether the fault of the employer of the Statutory Regulations consists of, and is coextensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability."

28. This passage was cited with approval by Lord Reid in Boyle. He put it in the following terms at page 442:

"So the crucial question is whether they (the respondents) have proved by the evidence of the appellant's witnesses that they did everything which they could reasonably be expected to do to prevent this breach. In fact they did nothing. Their case is that they were entitled to assume that a skilled and experienced man would know his duty under the regulations and comply with it. In a case where the regulations require no more to be done than any skilled man would know from his practical experience to be necessary, it may well be that the employer is under no duty to instruct the man as to his duty."

29. It seems to me that in answering this question we should bear in mind what Lord Tucker said in Staveley Iron and Chemical Company Ltd –v- Jones [1956] AC 672 at page 648:

"In Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute."

30. I entirely accept that this is not a case of mere inattention, which was the mischief referred to by Lord Tucker. But requirements of both common law and the regulations which I have identified have as part of their purpose the objective of ensuring that both employer and employee have taken stock of a situation where an appropriate work practice has to be identified so as to ensure that each has in mind the relevant risk and the necessary measures to obviate or reduce it. For the reasons that I have given, that was an obligation on the respondents, going beyond the actions and the decisions of the appellant and which was causative of the accident. It cannot therefore be said here that the fault of the appellant was co-extensive with the fault of the respondents. The respondents' negligence and breaches of statutory duty were accordingly a cause of the accident.
31. The question then arises as to the apportionment of liability. In Toole –v- Bolton Metropolitan Borough Council [2002] EWCA Civ 588, Buxton LJ said:

"It is not usual for there to be marked findings of contributory negligence in a breach of statutory duty case."

32. There may well be some justification for that view in cases of momentary inattention by an employee. But where a risk has been consciously accepted by an employee, it seems to me that different considerations may arise. That is particularly so where the employee is skilled and the precaution in question is neither esoteric nor one which he could not take himself. In the present case he could have made himself a run-off bench, or ensured that Mr Webb was there when he cut the relevant fascia board. In those circumstances, it seems to me that the appellant can properly be required to bear the greater responsibility. I would assess his responsibility for the accident at 60%. Accordingly he is entitled to 40% of whatever damages are ultimately considered to be appropriate for the dreadful injury he suffered to his hand.

Lady Justice Arden: I agree.

Lord Justice Auld: I also agree.

Order:

(1) Appeal allowed.

(2) Order of HHJ Brown given in Liverpool County Court on 2nd May 2003 set aside and following order substituted therefor: (i) judgment for the appellant with a finding of contributory negligence assessed at 60%; (ii) respondents to pay the appellant's costs of the claim (save as hereinafter appears) to be the subject of detailed assessment on the standard basis in default of agreement; (iii) appellant shall pay respondents' costs of claim with respect to period of 8th April 2003 to 2nd May 2003 inclusive, such costs to be subject of a detailed assessment on the standard basis in default of agreement.

(3) Matter to be remitted to Liverpool County Court for the purposes of disposal and assessment of damages and shall be listed for directions before a district judge in Liverpool County Court accordingly.

(4) Respondents shall pay the appellant's costs of the appeal to be subject of detailed assessment on the standard basis in default of agreement.

(Order does not form part of the approved judgment)