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 BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE DURMAN)

		Royal Courts of Justice Strand London, WC2
		4th March 2004

1. LORD JUSTICE TUCKEY: This is an appeal by the defendants, Jaguar Cars Ltd, from the judgment of His Honour Judge Durman given in the Birmingham County Court, in which he found them liable for an accident suffered by the claimant, Mr Coates, in the course of his employment.
2. At about 10 a.m. on 19th January 1999 the claimant tripped, fell and injured his arm whilst going up a short flight of steps at the defendant's factory in Coventry. The judge found that the defendants were negligent for not having provided a handrail at the side of the steps, as they had done after the accident, and rejected the allegation that this was also a breach of statutory duty. He found the claimant 25 per cent to blame for the accident. Damages were agreed. The judge's finding resulted in the claimant being awarded £60,000. The defendants appeal the finding that they were negligent. The claimant cross appeals against the finding of contributory negligence and, if necessary, against the finding of no breach of statutory duty.
3. The steps led from the outside of one of the factory buildings to a car park. They are clearly shown in photographs which were used at the trial. There were four steps. Each was 47" wide, 19 1/2" deep and 6 3/4" high and surfaced with two substantial concrete paving blocks. On one side of the steps there was a chainlink fence. At the time of the accident the other side was open to a grass bank leading to the side of the nearby building. This is where the hand-rail was put after the accident.
4. At the time of the accident the claimant (then aged 58) was employed as a mill press operator. The judge accepted his evidence about what happened. He had to go up the steps to get back to his workplace after a smoke break. As he reached the third step one of his feet caught on the edge of the step. He then stumbled, his other foot caught on the top step and he shot forward. In his attempt to prevent himself falling into the car park fence which was ahead of him, he badly twisted and broke his right arm. The judge did not accept the suggestion that the claimant had been running or going up the steps too quickly.
5. After the accident one of the defendant's safety officers, Mr Barry, inspected the steps. He found them in good condition. This was not in issue at the trial. His evidence was that no formal risk assessment of the steps had been carried out before the accident but if it had been, his view would have been that a hand-rail was unnecessary. There was some uncertainty about how frequently the steps were used. The judge accepted that at the time of the accident they were being used by a substantial number of employees -- the claimant said about 100 each day. However, the steps had been there for a number of years and had been used without accident or complaint throughout that time. After his inspection of the steps Mr Barry recommended that a hand-rail should be erected. His evidence was that he did this simply because there had been an accident.
6. The judge expressed his conclusion on the claim for negligence as follows:

"I have come to the conclusion that if Mr Barry had thought about it, or anybody else for that matter in his position on behalf of the defendants had thought about it before the accident, they would have seen that there was a risk that a workman, perhaps not being as careful as he ought to be, might trip up, as the claimant did, going up these stairs and, in order to guard against that, have recommended that a handrail be provided. In my judgment, there was negligence on the part of the defendant in failing to provide a handrail. That, it seems to me, was something which, if anybody had sat down and thought about it before the accident, would have been provided and failure to do so was failure to take reasonable care to protect employees such as the claimant from a foreseeable risk of injury."

In reaching this conclusion the judge was influenced by his earlier observation that the steps were unusually deep, so that one could not get into one's ordinary stride walking up them. Care was needed because one might miss one's step and it might be necessary to take more than one step to get up to the next one.

7. The judge then considered the question of causation and decided that if there had been a hand-rail, the claimant would have used it and this would have prevented the accident. He found that the claimant would not have fallen if he had been looking at the steps, and so he had contributed to the accident.
8. Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 is headed "Condition of floors and traffic routes". Paragraph (5) says:

"Suitable and sufficient handrails and, if appropriate, guards shall be provided on all traffic routes which are staircases except in circumstances in which a handrail can not be provided without obstructing the traffic route."

The regulations define traffic route as "a route for pedestrian traffic, vehicles or both and includes any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp." In rejecting the claim that regulation 12(5) applied to these steps. The judge noted that this regulation only referred to staircases and said that the steps shown in the photographs could not properly be described as a staircase. The claimant does not challenge this conclusion but relies, in this court, as he did below, on the provisions of regulation 5. This regulation is headed "Maintenance of workplace, and of equipment, devices and systems." Paragraph (1) says:

"The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair."

The judge rejected the argument based on this regulation because he said that it was concerned with maintenance and repair of such equipment as was provided and not with what should be provided. Regulation 12(5) prescribed what should be provided and there was no breach of that regulation.

9. For the defendants, Mr West QC says that the judge's finding of negligence is untenable. There was nothing defective or hazardous about these steps, as the photographs show, and there was no evidence, expert or otherwise, to support the view that contemporary safety standards required the provision of handrails for steps of this kind. He submits that in paragraph 24 of his judgment the judge applied the wrong test. He equated the foreseeability of risk with the duty to provide a handrail.
10. Mr Thompson for the claimant submits that the judge was entitled to reach the conclusion he did on the evidence which he heard, which included the frequency with which these steps were used, that the steps were somewhat awkward to negotiate, and that the defendants had not carried out any assessment of the risk which they posed to employees. The provision of a handrail would have been a reasonably cheap, practical and effective means of reducing the risk of accident on the steps. The standard of care to be expected of an employer in circumstances such as these may not be the same as that of an occupier, who has corresponding obligations to ensure that his premises are reasonably safe for those who visit them.
11. Persuasively though these submissions are put, I do not accept them. Giving all due weight to the trial judge's view of the matter, I cannot see how the failure to provide a handrail for these steps can be characterised as negligent. It is accepted that the fact that the defendants have provided a handrail since this accident is not of itself evidence of negligence. The photographs say it all, I think. These are the sort of steps that one sees everywhere. If the judge is right, no set of steps of this kind which carried any amount of traffic would be considered safe unless there was a handrail, perhaps in this case on both sides given the width, (47") of these steps. These steps are solidly constructed. There are only four of them. They only rise 6 3/4" at a time. Their generous depth, (19 1/2"), makes them easier and safer to tread on. Usually the complaint is that the treads of steps or stairs are not deep enough, so that there is a risk of not gaining a proper foothold on each step. That is not the case here. I cannot see that these steps pose any real risk, provided that those using them exercise the degree of care to be expected of anyone going up or down steps. It does seem to me that the judge has equated his finding of foreseeability of risk with a finding that there was a duty to provide a handrail, but one does not follow from the other.
12. Were the defendants in breach of regulation 5(1)? Mr Thompson correctly submits that the steps were part of the claimant's workplace, that the regulation imposes an absolute obligation on the defendants to maintain the steps in efficient working order and repair, and that efficient in this context means efficient from the viewpoint of safety and not from the viewpoint of productivity or economy. Mr Thompson then says that because there was no handrail the steps were not in efficient working order and so there was a breach. I cannot accept this submission for the same reasons as the judge gave. As its heading and content makes clear, regulation 5 is concerned with maintenance. One must look elsewhere in the regulations to see what is required to be provided. Regulation 12(5) says when handrails should be provided. It is now accepted that this regulation did not require a handrail to be provided for these steps. Looking at the other provisions of regulation 12 one can see that it is directed to the construction of the workplace including the provision of handrails and guards and the like to make those places safe.
13. For these reasons I think that the judge should have dismissed the claimant's claim. The cross appeal against his finding of contributory negligence does not therefore arise.
14. These conclusions obviously mean that the claimant will not receive the damages which he was awarded. I am sorry about that, but my sympathy for the claimant cannot compel the conclusion that the defendants were legally liable for his accident when I do not think they were. I would allow this appeal, set aside the judge's order and substitute an order that the claimant's claim be dismissed.
15. LORD JUSTICE JACOB: I agree.
16. LORD JUSTICE MUMMERY: I also agree.

ORDER: Appeal allowed with costs here and below; judge's order of 20th May 2003 set aside; claim dismissed.