England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
HIS HONOUR JUDGE BOND
6BS08371

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2008

Lord Justice Longmore:

Introduction

1. Between classrooms 6 and 7 at the Wyke Regis primary school in Weymouth there is a paved area. One of the paving slabs was raised somewhat above a neighbouring slab. In August 2003 Mr David Craner who worked as a handy man and caretaker at the school was pushing a wheeled trolley along the paving area. The trolley contacted the raised slab and came to an abrupt halt. Mr Craner's right knee struck the trolley and suffered an immediate and painful injury. There was no bruising. He obtained anti-inflammatory tablets from his local health centre but when the pain did not abate he went to see his doctor who referred him to a specialist. In January 2004 Mr Craner had an operation to remove some cartilage. This lead to an improvement but he could not return to his job which required him to do manual work. He had further surgery in November 2004 after which his pain improved. The knee had a pre-existing arthritic condition which meant that the knee would probably have to be replaced at some time in the future. The medical experts agreed that, as a result of the accident, he had to stop doing manual work 3-5 years earlier than he would otherwise have done. Sitting in the Weymouth County Court at Bournemouth, Judge Bond appears to have held that the defendants were

i) in breach of Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations") because the surface of the workplace had not been kept free of obstructions; and

ii) in breach of Regulation 4 of the Provision and Use of Work Equipment Regulation 1998 ("the Equipment Regulations") because the trolley was unsuitable work equipment.

2. Ironically the claimant took it upon himself to inspect the school premises and he made what the judge called a number of full and careful reports about the condition of various parts of the school. According to his statement (para.33) the claimant because a qualified health and safety practitioner and he had heath and safety responsibilities at the school. He made various reports between summer 2001 and June 2003 but none of these mentioned the raised slab. Nor did the Council's Health and Safety Officer Mr Pires, who examined the area after the accident, think that the raised slab constituted a health and safety problem. Nevertheless the judge concluded that the raised slab did constitute a safety hazard and that there was liability pursuant to one or other or both sets of Regulations.
3. The judge had to decide various issues of heavily contested fact such as whether Mr Craner had been morris dancing shortly after the accident (and thus was exaggerating or even, perhaps, inventing his injury) and whether the headmistress, Mrs Davies, had expressly authorised Mr Craner to use the trolley. All such issues were resolved in favour of the claimant but neither counsel nor the judge seemed to have concentrated on the precise construction or effect of the regulations. For this reason certain facts relevant to the regulations do not emerge from the judgment with requisite clarity.
4. It was, for example, not possible for the judge to make any precise finding about the height of the raised slab over that of its neighbour. The only person who measured it was Mr Wall who was the Assistant Insurance and Risk Manager of the Dorset County Council. The judge, however, rejected his evidence because he considered it inconsistent with the photographs. Mr Wall thought the slab protruded 18-20mm above its neighbour. Mr Craner thought it was about an inch (25mm). The only conclusion to which the judge could come was that there had genuinely been an accident as Mr Craner described and that the protrusion (whatever it was) was sufficient to bring the wheels of the trolley to a halt and cause Mr Craner's knee to come into contact with the trolley giving rise to a painful injury. Although the trolley was not in pristine condition, Mr Craner had often wheeled it along the paved area without any adverse circumstances happening. There did not, on the face of it, appear to be anything wrong or unsuitable about the trolley.

Regulations

5. Regulation 12 of the Workplace Regulations relevantly provides:-

"Condition of floors and traffic routes

12. (1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that –

(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and

(b) every such floor shall have effective means of drainage where necessary.

(3) So far as it is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."

Regulation 4 of the Equipment Regulations provides:-

"Suitability of work equipment

4. (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.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

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

The judge cited only regulation 12(3) of the Workplace Regulations no doubt because counsel in final submissions had conceded that regulations 12(1) and 12(2) did not apply. But the provisions for "traffic routes" have to be seen in their overall context. At one time it seemed that the County Council were arguing that the raised slab could not constitute an obstruction within regulation 12(3) and that, since the trolley was suitable for its purpose under the Equipment Regulation, the claim as a whole must fail without any need to have regard to regulations 12(1) and (2) of the Workplace Regulations. But Mr Waite for the County Council made it clear he was not taking a technical point of that kind. He was content to argue the case on the basis that if this court felt, like the judge, that the raised paving slab was a risk to the health and safety of the users of the paved pathway, the Council would be liable pursuant to Regulation 12(3).

The Arguments

6. The claimant's case, effectively accepted by the judge, was that the County Council had either failed to keep the paved area of the workplace free from obstruction within regulation 12(3) of the Workplace Regulations or they had provided him with an unsuitable trolley within regulation 4 of the Equipment Regulations. The County Council's case was that a raised paving slab of an inch or less could not constitute any risk to health and safety and that the trolley was suitable for its intended purpose of transporting Mr Craner's tools or other equipment round the school site. This meant that the County Council were left contending (once the judge accepted the genuineness of the accident and the claimant's injury) that what had occurred was a freak or inexplicable accident which could never have been prevented or guarded against. These arguments have been repeated in this court.

Discussion

7. The judge had to do his best in a case in which the evidence was painfully thin. No one had taken irrefutable measurements of the distance of the protrusion of the relevant slab over the neighbouring slab. No one had done any controlled experiment with the trolley in order to see what had actually happened to cause the accident. No one asked the judge to do a site visit which would, no doubt, have been difficult, the case having apparently been conducted in Bournemouth since the Weymouth County Court was busy with other cases on the day of trial. The judge felt that the County Council could not successfully extricate itself from the dilemma on which Mr Craner sought to impale them. Either the pavement or the trolley was unsuitable otherwise the accident could not have happened: yet it did. The idea that the accident was inexplicable and effectively a freak accident did not appeal to the judge as the right resolution of the case. In the result the judge held that the defendants were in breach of the regulations.
8. I am left in the not very courageous position of saying that I am not persuaded that the judge was wrong to come to the conclusion he did although the evidence was indeed somewhat scanty. This accident was not a freak accident, accidents like it occur frequently up and down the land. However much the courts may not wish to encourage a compensation culture, the fact remains that the Regulations exist. To a large extent they replace the old common law of negligence and, owing their origin to the European Framework Directive, they impose a higher standard of liability as employers than a mere negligence liability. No point, for example, was taken on the words "so far as is reasonably practicable" in regulation 12(3) of the Workplace Regulation. The attitude of the County Council was merely that other matters at the school had a higher maintenance priority than the paving stones. That is entirely understandable but does not, of itself, afford any defence to a claim which alleges breach of the regulations.
9. We, like the judge, were much pressed with the decision of this court in Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528. In that case Mrs Palmer had tripped over a weather strip standing about 9mm high inserted in the floor of the doorway of the staff exit at their Boston branch. Waller LJ concentrated on regulations 12(1) and (2) rather than 12(3) and asked (para 27) whether the floor was

"uneven to an extent which exposed persons to risk of their health and safety."

He said that the weather strip did not expose persons to that risk and that it was suitable. That is, of course, in the end a question of fact. A weather strip (raised less than half the distance above the floor than the paving slab was raised in this case) is a convenient, desirable and regularly used fitting. A paving slab standing proud of its neighbour is rather different. On this question of fact, I would not myself be prepared to disagree with the judge in this case.

10. I would, however, disagree with the judge that the trolley was unsuitable equipment within the Equipment Regulations but that, in the circumstances, does not conclude the matter in the County Council's favour. I would accordingly dismiss this appeal.
11. I would add for the future that a case of this kind should be considered under regulations 12(1) and (2) because the concept of "unevenness" in regulation 12(2)(a) is more apt than the concept of "obstruction" in 12(3) to describe the difference in height (such as it was) between the paving slabs in the present case. The distinction between the state or condition of the workplace and obstructions placed upon the workplace is (as it happens) a familiar distinction to those who used to do cases about the Factories Acts see e.g. Section 28 of the Factories Act 1961 and Jenkins v Allied Ironfounders Ltd [1970] 1 WLR 304. It appears to be a distinction that the framers of the Workplace Regulations have sought to observe.

Lady Justice Arden:

12. I agree with the judgment of Lord Justice Longmore. I also agree with the observations of Lord Justice Sedley in paragraphs [2 and 3] of his judgment, which I have read in draft. In my judgment, there was sufficient material for the judge to come to the conclusion that the appellant was liable under the Workplace Regulations for the accident Mr Craner suffered through wheeling his trolley into a protruding pavement slab. The judge did not make precise findings as to the amount of that protrusion but the appellant was content for us to proceed on the basis that it was some 18-20 mm above its neighbour at the relevant point. As Lord Justice Longmore has observed, that is a different proposition from a fitted weather strip (as in Palmer), which may also protrude but is of a different shape and size.
13. The thrust of the appellant's case is that this was a freak accident. The accident book disclosed no other accident on the footpath in question. It is in any event not implausible on the facts of this case that the protruding paving stone had the potentiality to cause a person to trip, or a person wheeling a trolley (or a pushchair or similar conveyance) to come to an abrupt halt, and so exposed users of the pathway to the risk of injury, even if no accident had ever been recorded.
14. I agree with what Lord Justice Longmore had said in his judgment about the Equipment Regulations, and about the future conduct of cases under the Workplace Regulations.
15. In those circumstances, I too would dismiss this appeal.

Lord Justice Sedley:

16. I too would dismiss this appeal, though without much confidence in the basis upon which the judge came to his conclusion.
17. Both parties were represented by very experienced personal injury solicitors. Yet neither a jointly instructed expert nor, failing that, a unilaterally instructed one was asked to push a trolley along the path to see what happened or to measure the upstand of the offending paving slab. Instead the defendants' solicitors threw all their effort into casting doubt on the claimant's honesty by having him followed by an inquiry agent with a video camera and assembling evidence that he had been spotted morris dancing in public.
18. Having rejected this attack, the judge was left with a claimant who was simply relying on the occurrence of the accident as proof of breach of the council's statutory duties and a defendant who was saying that it must have been a freak occurrence. Neither side showed much interest in the appropriate legal criteria. It was a lamentable basis on which to invite a judge to decide a case, and the defendants really cannot now complain if, given the exiguous evidence and the lack of any focused legal argument, the judge concluded that there was more probably than not an obstruction on the path sufficient to create a risk of injury, and found for the claimant.