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Cite as: [2012] EWCA Civ 263, [2012] WLR(D) 65, [2013] 1 WLR 251, [2012] ICR 1154

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		Neutral Citation Number: [2012] EWCA Civ 263
		Case No: B3/2011/1920

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT (sitting at Bradford)
Mr Recorder Cameron
Claim No. 8SE11781

Royal Courts of Justice
Strand, London, WC2A 2LL

08/03/2012

B e f o r e :

THE CHANCELLOR OF THE HIGH COURT
LORD JUSTICE PATTEN
and
LORD JUSTICE PITCHFORD
____________________

Between:

	MARK BRYNMOR WHITEHEAD	Appellant
	- and -
	TRUSTEES OF THE CHATSWORTH SETTLEMENT	Respondent

____________________

Richard Copnall (instructed by Russell Jones & Walker - Solicitors) for the Appellant
Graham H Wells (instructed by DWF - Solicitors) for the Respondent

Hearing date: 28 February 2012
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Pitchford :

This is the judgment of the court. On 7 June 2011 Mr Recorder Cameron, sitting at Bradford County Court, dismissed the appellant's claim for damages for personal injuries suffered in a shooting accident during the course of the appellant's employment with the respondent. The appellant appealed against that judgment. At the conclusion of the hearing the court dismissed the appeal. In reaching its conclusion the court has been required to consider the meaning and scope of regulation 12 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306), regulations re-enacted (in succession to the 1992 Regulations) in performance of the United Kingdom's obligations under the Council of Europe's Framework Directive of 12 June 1989 (Safety and Health of Workers at Work) and the Work Equipment Directive of 30 November 1989. The following are our reasons for dismissing the appeal.

The appellant

The appellant was born on 29 January 1960 and is now aged 51 years. He enlisted with the Royal Engineers in 1977 and received basic training in the handling and use of rifles and machine guns. He was an army driver and did not use weapons on active service. Nevertheless, his competence in the use of personal weapons was tested annually. In the 1980s he owned a shotgun for personal sporting use and was issued with a shotgun certificate. The appellant left the army in 1991. In April 1994 he underwent a deer stalker's course during which he used a sporting rifle under supervision. On 2 May 2000 the appellant was engaged by the agent of the Bolton Abbey Estate, Benedict Heyes, as a water bailiff and gamekeeper. His supervisor, who took part in the appellant's interview, was the head gamekeeper, Brian Shepherd. One of the appellant's responsibilities was to patrol the estate's river waters and to keep down vermin. For this purpose he carried a shotgun supplied by the respondent. From time to time the appellant was also engaged to act as a "loader" for sporting guns during shoots held on the Bolton Abbey and Chatsworth estates. That work required knowledge of the safe use of guns by guests and clients of the estate in which he was instructed by Mr Stephenson. He was required to obtain and did obtain his second shotgun licence upon taking up his employment. By 2006 the appellant had become experienced in the use of shotguns.

The accident

On 8 February 2006 the appellant was engaged alone in river duty. He was carrying the side-by–side Sarriguate 12 bore shotgun provided to him by the respondent broken over his arm, which meant that the safety catch was automatically engaged. However, there was a live cartridge in the breech of each barrel. The appellant climbed a low stone wall which crumbled under his weight causing him to fall. As he fell the gun somehow closed and discharged both cartridges into his right calf. This account of the accident was admitted in the pleadings.

The employer's duty

The appellant's claim was brought in negligence and for breach of statutory duty. It was common ground that the high point of the appellant's claim for breach of statutory duty was an alleged breach of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No 2306). The appellant acknowledged that if his appeal against the Recorder's finding in respect of regulation 12 failed then no more favourable claim was available to him either for breach of statutory duty or in common law negligence. Thus the appeal focused upon the Recorder's rejection of an alleged breach of regulation 12 which provides, in its material parts, as follows:

"Protection against specified hazards

12(1) Every employer shall take measures to ensure that the exposure of a person using work equipment to any risk to his health or safety from any hazard specified in paragraph (3) is either prevented, or, where that is not reasonably practicable, adequately controlled.

(2) The measures required by paragraph (1) shall-

(a) be measures other than the provision of personal protective equipment or of information, instruction, training and supervision, so far as is reasonably practicable;

(b) include, where appropriate, measures to minimise the effects of the hazard as well as to reduce the likelihood of the hazard occurring.

(3) The hazards referred to in paragraph (1) are-

(a) any article…being ejected from work equipment;

…

(d) the unintended or premature discharge of any article…which…is produced, used or stored in the work equipment;

(e) the unintended or premature explosion of…any article…produced, used or stored in [the work equipment].

(4) For the purposes of this regulation "adequately" means adequately having regard only to the nature of the hazard and the nature and degree of exposure to the risk…"

Application of regulation 12

While the regulations may not have been drafted with the circumstances of the appellant's accident in mind, the definition of 'work equipment' in regulation 2(1) as "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)" is wide enough to include a shotgun and it is common ground that the appellant's shotgun was work equipment for this purpose together with the cartridges which formed part of the equipment.

It was also common ground that in the course of the appellant's work he would be expected to patrol the respondent's river water carrying his shotgun for the purpose of eliminating vermin if the occasion arose. The parties were agreed at trial that it was normal practice for a keeper, on open, flat, ground, to carry a shotgun broken (that is, open at its hinge and carried over the arm), but loaded with a cartridge in the breech. There was, the respondent conceded, a risk that while negotiating an obstacle or difficult terrain, the keeper may fall on or drop his shotgun. If he did, there was a further, if remote, risk that the gun would fire an unintended shot, exposing the keeper himself or any bystander to shotgun wounds. Thus, it was agreed that by the application of regulation 12(3)(d) the duty of the employer owed under regulation 12(1) and (2) applied to the circumstances of the appellant's accident.

In Dugmore v Swansea NHS Trust & Another [2002] EWCA Civ 1689, [2003] 1 All E R 333 the Court of Appeal considered the effect of the similar wording in regulation 7(1) and (11) of the Control of Substances Hazardous to Health Regulations ("COSHHR") 1994:

"(1) Every Employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.

…

(11) In this regulation "adequate" means adequate having regard only to the nature of the substance and the nature and degree of exposure to substances hazardous to health and "adequately" shall be construed accordingly."

Giving the judgment of the court Hale LJ, as she then was, explained the effect of regulation 7, paragraphs (1) and (11) as follows:

"14…Many legislative provisions imposing duties upon employers to protect the health and safety of their employees impose strict liabilities different in kind from their duties at common law. Regulation 7(1) uses the language of strict liability in providing that an employer 'shall ensure' that exposure is either prevented or controlled. The primary duty is to prevent exposure altogether, unless this is not reasonably practicable. 'This' must refer to 'prevented' rather than both limbs of the duty. Where prevention is not reasonably practicable, the secondary duty is adequately to control the exposure. Adequately is restrictively defined, the only relevant factors being the nature of the substance and the nature and degree of exposure generally. Nowhere is there any reference to the reasonable foreseeability of the risk. Nor is the duty dependent upon what a risk assessment would have revealed. It is therefore irrelevant whether or not a reg. 6 assessment would have revealed it."

As to the meaning of the alternative duty, to ensure that the exposure to hazard was "adequately controlled", Hale LJ said at para. 25:

"'Adequately' is defined by regulation 7 without any reference to reasonableness or the foreseeability of risk: it is purely a practical matter depending upon the nature of the substance and the nature and degree of the exposure and nothing else."

In the later appeal of Allison v London Underground Ltd [2008] EWCA Civ 71, [2008] IRLR 440, Smith LJ, giving the leading judgment, examined the question whether the duty owed under regulation 9 of the Provision and Use of Work Equipment Regulations 1998 to provide training in the use of equipment should properly be described as "strict" or "absolute" . At paragraph 31 Smith LJ used the term "strict liability" to describe the consequence to the employer of a failure which could not be excused on the ground that it was not practicable or reasonably practicable to avoid a risk of harm; "absolute liability", however, was a term reserved for those failures which could not be prevented even by the taking of all possible care. It was in the former sense that, in the opinion of Smith LJ, Hale LJ used the term "absolute liability" at paragraphs 22 and 24 of her judgment in Dugmore. In fact Hale LJ seems to have used the terms "strict" and "absolute" interchangeably ...see paragraph 7 above). Smith LJ, in Allison, found that regulation 9 of the 1998 Regulations required the employer to provide training which was adequate in all the circumstances (paragraph 55). That duty required the employer to take steps to inform himself of "the risks inherent in his operations". At paragraph 27 of Dugmore, Hale LJ described the duty under the COSHHR 1994 in similar terms:

"They involve positive obligations to seek out the risks and take precautions against them. It is by no means incompatible with their purpose that an employer who fails to discover a risk or rates it so low that he takes no precautions against it should nevertheless be liable to the employee who suffers as a result."

That, however, is not quite the end of the search for the proper construction of regulation 12 which is not in terms identical to either regulation 9 of the 1998 regulations or regulation 7 of COSHHR 1994. At paragraph 36 of Allison Smith LJ pointed out that although the terms of the Framework Directive in general referred to a requirement to "ensure" safety, by Art 5.4 the Directive "shall not restrict the option of member states to provide for the exclusion or limitation of employers' responsibility where the occurrences are due to unusual and unforeseeable circumstances beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care". In Smith LJ's opinion the effect of Art 5 was to require a "norm" that health and safety would be guaranteed; any limitation of the employers' responsibility would require special words.

Unlike regulation 7(1) of COSHHR 1994, regulation 12 of the Work Equipment Regulations 1998 requires the employer, not to "ensure" but, to take "measures to ensure", that exposure to risk to health and safety (from a regulation 12(3) hazard) is prevented, or, if prevention is not reasonably practicable, to take measures to ensure that the risk is adequately controlled. The reason why reference is made to "measures" in paragraph (1) seems to be the draftsman's choice to identify in regulation 12(2) both the extent and the limits of the duty. It emerged in argument that there are two possible interpretations of paragraph (2)(a): Either (1) the measures required did not include "the provision of personal protective equipment or of information, instruction, training and supervision" or (2) the measures required might include such provision, but, if so, the employer was nevertheless required to take such other measures as were reasonably practicable. At trial the second interpretation was adopted by the parties and the Recorder. We consider that they were right to do so. While separate and compendious duties are owed under regulations 8 and 9, which might otherwise signify an intention by the draftsman to keep the duties under regulations 8, 9 and 12 exclusive and separate, there is no separate duty provided in Part II of the Regulations to protect the user of equipment by adequate supervision. This suggests a legislative intention to provide that measures calculated to safeguard the user from risk may include, but must not be limited to, protective equipment, information, instruction, training and supervision, so far as it is reasonably practicable to take additional measures. An important consequence of this interpretation of regulation 12(2)(a) is that, unlike regulation 7(1) of COSHHR 1994, reasonable practicability is, at least in part, relevant to the assessment of both limbs of the duty upon the employer either to prevent or adequately to control the risk. The dominant phrase in regulation 12(1) is "shall take measures" which is explained in regulation 12(2). Read together, regulation 12, paragraphs (1) and (2) define the duty of the employer, by the taking of measures, both to prevent and adequately to control exposure to risk.

There are two limbs to regulation 12(1), just as there were in regulation 7(1) of COSHHR 1994. Under regulation 12(1) the employer's first responsibility is to take (reg. 12(2)(a)) measures (which may include but, so far as reasonably practicable, are not limited to the provision of personal protective equipment, or of information etc.), to "prevent" the exposure of the user to risk to his health from a paragraph (3) hazard. Where, however, it is not reasonably practicable to prevent the exposure to risk altogether, the employer's second, and alternative, responsibility is to take (reg. 12(2)(a)) measures (which may include but, so far as reasonably practicable, are not limited to the provision of personal protective equipment, or of information etc.), to ensure that exposure to the risk is "adequately controlled". The term "adequately" means, by paragraph (4), "adequately having regard only to the nature of the hazard and the nature and degree of exposure to the risk". The measures to be taken include (reg. 12(2)(b)): (1) measures to reduce the likelihood of the hazard occurring, and (2) where appropriate, measures to minimise the effects of the hazard.

In Dugmore the Court held that the employer, Swansea NHS Trust, had failed to ensure, "so far as was reasonably practicable", that the appellant's exposure to a substance hazardous to health was prevented, by reason of its failure to heed that powdered latex gloves were hazardous to some users, and to the appellant in particular, and its failure to supply an alternative, namely vinyl gloves. Alternatively, the Court held, since other barriers were readily available, the provision of powdered latex gloves only could not constitute "adequate control" of the risk of a serious skin reaction. While the liability arising under both limbs of regulation 7(1) COSHHR 1994 has been described as "strict" or "absolute" it is plain that paragraph (1) did not, and regulation 12(1) does not, in their second limb, require complete control of exposure to risk. If that was the case there would be no meaning to be given to the first limb. In contrast to the position under regulation 7(1) COSHHR 1994, however, under the second limb of regulation 12(1) a judgment is required whether, by the taking of measures (as defined by regulation 12(2) – see paragraphs 10 and 11 above), the exposure to risk is "adequately controlled". The process by which that judgment is reached involves a weighing of three material factors, (1) the measures available (including but, so far as reasonably practicable, not limited to the provision of protective clothing or of information etc.) by which the exposure to risk to health and safety could be controlled, (2) the nature of the hazard and (3) the nature and degree of exposure to the risk.

The appellant's case

It was accepted at trial that the appellant was at least in part responsible for his injuries and the Recorder was invited to apportion responsibility for the accident. Mr Copnall argued and the Recorder accepted, rightly in our view, that since it was common ground that the employer owed the duties which applied under regulation 12(1) it was for the respondent to establish, either that prevention of the risk of unintended firing was not reasonably practicable, or that the risk was adequately controlled. The appellant's case was that he was following a practice common among the keepers employed by the estate to leave live cartridges in their shotguns when working alone in pursuit of vermin, not just when walking on flat ground but also when negotiating obstacles. The appellant did not contend that there was any measure which the employer could have taken beyond searching out the risk and instructing the appellant accordingly. Its duty, the appellant contended, was, first, to discover that he may have been running a risk with his own safety and, second, to ensure, by instruction, training and, if necessary, by disciplinary measures, to ensure that the risk was prevented. Alternatively, if these measures could not prevent the risk, the employer's responsibility was to ensure, by taking the same measures, that the risk was adequately controlled. It follows that the recorder was not concerned to ascertain whether there were reasonably practicable measures other than instruction and training which could have been taken to prevent or to control the appellant's exposure to risk.

The evidence at trial

In evidence the appellant acknowledged that at the time of his accident he was aware of the risk of accidental discharge of the shotgun while attempting to cross an obstacle such as a wall. He knew that "best practice" was to remove the cartridges from the shotgun before attempting to negotiate an obstacle. The term "best practice" was used by Mr Copnall when opening the case to the Recorder and seems to have stuck. It was not a term of art. In fact it was the agreed expert evidence that it is "standard practice throughout game shooting and pest control" to remove the cartridge before crossing an obstacle. That is the sense in which the witnesses were using the term "best practice". The removal of ammunition in such circumstances was one of the safety features for which the appellant was tested during his deer stalker's course in 1994. He accepted that during his employment, when in the presence of his head gamekeeper or in the company of others, he would remove the cartridges before crossing an obstacle. The appellant was asked by Mr Wells in cross examination:

"Q: You would know that anyone with any knowledge of guns would have known you unload them before you cross an obstacle?"

The appellant replied:

"A: Yes, I probably – yes, I agree"

Asked how he knew what best practice was, the appellant replied that he could not remember, but 'a lot of it' was common sense. He agreed that if he was out with Brian Shepherd or Alistair Jones-Perrott (who, we understand, was a senior member of the respondent's staff) he would make sure he observed best practice at all times. The appellant acknowledged that when he was working alone he was responsible for his own actions. In his witness statement the appellant had said that when working alone in pursuit of vermin he did not consider it was "practicable" to keep loading and unloading the gun and he did not do so. In evidence he said that although he knew what the best practice was, at the time of his accident he did not think about it. Then he reconsidered, and said that he did think about the obstacle he was negotiating but, having thought about it, he believed it was safe to leave the cartridges in the broken gun. The appellant asserted that if he had been instructed by his employers to remove the cartridges before crossing an obstacle he would have done. He had not been instructed to do so. He assumed, he said, that the other keepers followed the same practice that he did. In support of this assertion he relied upon the evidence of Allan Pettit who was, until his resignation in June 2008, also a gamekeeper on the estate. Mr Pettit said that he knew what the best practice was but he had never received instructions to adopt it. Ninety nine per cent of the keepers did not, when working alone and shooting vermin, remove their cartridges because to have the gun broken but loaded enabled far quicker shooting.

The respondent's case was that, contrary to the evidence of the appellant and Mr Pettit, they had both been instructed in the proper carrying of shotguns over obstacles, instructions which had been reduced to writing and distributed on at least two, and probably three, occasions. The appellant and Mr Pettit were both present at a health and safety meeting held by the respondent on 15 December 2000 to ensure compliance with the respondent's obligations under the Management and Safety at Work Regulations 1999. Its purpose was to provide the six keepers, including Mr Shepherd, with updated risk assessments upon a variety of activities and a new risk assessment as to the use of guns. The trustees, through Mr Heyes, engaged Mr John Patrick Ruddy as a consultant and adviser for the purpose. On 23 January 2001 Mr Ruddy reported back to Mr Heyes in a letter which described the assessments covered at the meeting. What was at issue between the appellant, Mr Pettit and Mr Ruddy, was whether there was at the meeting a discussion of the specific risks associated with carrying a loaded shotgun and a distribution of Mr Ruddy's "Generic Risk Assessment for the Use of Guns". Mr Ruddy said that he had researched gun safety, pooled the information he had obtained from a variety of sources, and had drafted his risk assessment. In that document Mr Ruddy had itemised the hazards arising from the use and carriage of shotguns. One of the hazards identified was "Climbing over fences, stiles, steep banks, walls and difficult terrain". Those at risk were identified as "Gamekeepers" and "People carrying [or] using guns". Mr Ruddy identified "Preventative Measures for Risks/Hazards Control". Under the title "Obstacles" appeared the instruction:

"Never carry a loaded shotgun when negotiating obstacles. Before climbing over a fence, style or hedge, crossing a brook or on a steep bank, or negotiating any difficult terrain, always unload the gun. It is not sufficient to open the gun and leave the cartridge in."

Mr Ruddy gave evidence that having prepared the document he discussed its contents with the keepers and left it with Mr Shepherd for consideration and amendment if necessary. In his letter to Mr Heyes, Mr Ruddy described the process as "instruction and discussion". In respect of his risk assessments Mr Ruddy wrote:

"...I explained the purpose of Risk and Coshh assessments, and the statutory obligation of an employer to identify any risk or hazard appertaining to the work activities of their employees. A discussion followed..., as a result of which we were able to identify all known significant risks/hazards relative to their work as gamekeepers."

Mr Ruddy said that while he covered other topics those most relevant to his audience of keepers were their legal powers and responsibilities, set out in a document called "Guidelines for Gamekeepers and Bailiffs", and the generic risk assessment for the use of guns to which we have just made reference. They were the items for most prolonged discussion. The use and carrying of shotguns, Mr Ruddy said, was specifically discussed. It was suggested by Mr Copnall that he may be mistaken in his recollection. He replied, "That was the...two important things at that meeting...the guidelines...and the risk assessment relating to guns."

There was no change suggested to Mr Ruddy's proposals for the 'Use of Guns' risk assessment, so he prepared for Mr Shepherd in November 2001, for distribution to the keepers, a leaflet setting out the safety measures required, including the instruction to unload when negotiating obstacles or difficult terrain. Mr Shepherd died after making his witness statement which was admitted under the Civil Evidence Act. In his statement Mr Shepherd said that both the risk assessment and the leaflets were distributed. The appellant and Allan Pettit gave evidence that they could not recall any discussion about shotgun safety and did not receive either the Risk Assessment document or the leaflet, or indeed the reissue of the same instructions, called 'Use of Guns-Guidance Notes' drafted by Alistair Jones-Perrott in November 2005.

The Recorder's findings of fact

The Recorder found at para. 14 of his judgment:

"14...Mr Ruddy struck me as someone who was meticulous and exceptionally careful in imparting information both in his correspondence…and in the witness box. The claimant and Mr Pettit could easily have forgotten the details of this meeting and I have no reason to disbelieve Mr Ruddy, whose evidence I accept. I accept therefore that he prepared a risk assessment on this issue…that he discussed it with the keepers and that he left Mr Shepherd the head keeper to review it and give him feedback on it. I also accept that he prepared a leaflet…specifically for distribution to estate staff because of the risk which he perceived of the risk assessment not remaining in the forefront of the keeper's minds."

As to the question whether the relevant documents were distributed the Recorder said at paras. 15 and 16:

"15. The next question is, was that leaflet distributed? The evidence is not wholly satisfactory because Mr Shepherd is dead, and there was no system of having recipients sign for it. On the balance of probabilities, however, I believe it will have been so distributed. Mr Shepherd's statement says this was done. He has been described as meticulous about his duties and I ask, rhetorically, why prepare it and not distribute it? Mr Whitehead and Mr Pettit do not recall it, but I have already found that their memories may be at fault in certain respects. Another memo was drawn up in 2005…Again the evidence of its distribution is not really satisfactory, but on balance, I find that it was so distributed for the same reason: Why prepare it and not distribute it?

16. Furthermore, the claimant knew of best practice. I am entitled to ask how he himself knew of it. It seems to me the likelihood is that it is from this meeting and these documents, perhaps reinforced on the ground by the example and authority of Mr Shepherd."

It is not in issue that the Recorder was entitled on the evidence to make each of the findings of fact made in paragraphs 14 – 16 of his judgment.

It was the joint expert evidence (D Johnson and W Harriman) that the shotgun was in sound mechanical condition and safe to use. It was a simple and robust gun of a type regularly used for pest control and game shooting. The safety catch functioned normally. The shotgun was subjected to tests designed to replicate the accident. The experts could not reproduce a firing by dropping the shotgun from a variety of heights even while the safety catch was disengaged; nor could a firing be induced by snapping the gun closed while loaded. Finally, the experts attempted to produce a firing by striking the butt stock on a hard surface. At their third attempt, by striking the stock on a hard surface with a force much greater than that produced by dropping the gun, they managed to produce a firing of the right barrel. This experiment was repeated on three occasions with the same results. In the view of the experts the firing was caused by the progressive jolting of the right hand lock mechanism to a degree which enabled the gun to fire. There was therefore no mechanical fault which could explain the accident. Indeed, despite the admission by the respondent in its Defence, the experts could not accept that the gun had fired simply because it had snapped shut while the appellant was negotiating the wall (in his witness statement the appellant said that he had fallen on the gun). The experts agreed that the accident would have been easily prevented by use of the standard practice in game shooting and pest control of removing the cartridges from their chambers. This takes a few seconds. The experts did not accept as 'credible' the appellant's assertion that he retained the cartridges in the gun in order to fire at short notice. An accurate shot could not be fired while straddling a wall. It seems clear that they meant the retention of the cartridges in the breech did not, as a matter of fact, assist the appellant's task of shooting vermin.

Regulation 12(1) - prevention of risk

As to the first requirement of regulation 12(1) the respondent argued that it was beyond the ability of the employer to have removed the cartridge so as to make the gun safe. No other method of removing the hazard was available. The appellant was working alone and it was in the nature of his work that from time to time he would need to fire the gun. Mr Copnall responded that the employer discharges its duty by ensuring that it has an appropriate system in place to make sure that the user himself removed the cartridges. That would include, Mr Copnall submitted, training, instruction, sanctions and refreshers. The Recorder rejected this argument. Removal of the cartridges was a measure beyond the control of the employer and entirely under the control of the appellant. It was not practicable to require the employer to remove the cartridges since the nature of the appellant's work was solitary. In our view, the Recorder was in error to the extent that he found that 'control' of the gun was the conclusive issue on the facts of the present case. The purpose of the regulations is to protect the user from the risk of injury, including injury from misuse of the work equipment. There were, however, no practicable measures by which the risk could have been prevented save by appropriate instruction and training. The appellant had, upon the findings of the Recorder, received the appropriate instruction and training, yet the risk was not prevented. It follows that if the Recorder's findings of fact were sustainable it was not reasonably practicable to prevent the risk.

Upon the issue of adequacy of the instructions and training received it is instructive to consider the specific duties owed by the employer pursuant to regulations 8 and 9 of the 1998 Regulations:

"Information and instructions

8.—(1) 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.

(2)...

(3) Without prejudice to the generality of paragraphs (1) or (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on—

(a) the conditions in which and the methods by which the work equipment may be used;

(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and

(c) any conclusions to be drawn from experience in using the work equipment.

(4) Information and instructions required by this regulation shall be readily comprehensible to those concerned.

Training

9.—(1) 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 methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.

(2)..."

The meaning and scope of regulation 9 was considered by this Court in Allison v London Undergound Ltd [2008] EWCA Civ 71, [2008] IRLR 440. Smith LJ, giving the leading judgment, said at paragraph 55:

"55...In my judgment, the test for the adequacy of training for the purposes of health and safety is what training was needed in the light of what the employer ought to have known about the risks arising from the activities of his business. To say that the training is adequate if it deals with the risks which the employer knows about is to impose no greater a duty than exists at common law. In my view the statutory duty is higher and imposes on the employer a duty to investigate the risks inherent in his operations, taking professional advice where necessary...This formulation of the test is consistent with the test applied by this court in Dugmore."

The same considerations must apply to regulation 8. It is the duty of the employer to provide adequate health and safety information and, where appropriate, written instructions as to the use of equipment. Information and written instructions will only be adequate if they are sufficient, when applied, to protect the user of the work equipment from harm in normal, and foreseeable but abnormal, working conditions (regulation 8(3)(a) and (b)). The responsibility is on the employer to investigate the risks which attend such use and issue information and written instructions accordingly.

The appellant made no separate claim under regulations 8 and 9 but in his Reply to the Defence he asserted that, upon discovery of the keepers' 'common practice' of not following "best" practice when working alone, the respondent should have provided the information, instruction and training required by those regulations. Regulation 8(3)(a) and regulation 9 were of particular application to the appellant's accident. The evidence was that negotiating obstacles or rough terrain with a gun was a feature of the keeper's work. The employer's responsibility was to ensure that the appellant was properly instructed and trained in handling his gun in those conditions. The Recorder found, for the purposes of the second requirement of regulation 12(1), to which we shall return in a moment, that the appropriate written instructions and training were provided. Subject, therefore, to the issue whether the respondent should have discovered the common practice, the Recorder was correct in his rejection of the claim under the first limb of paragraph (1), if not for the reason he gave.

Regulation 12(1) – risk adequately controlled

As to the second and alternative requirement of regulation 12(1) that the appellant's exposure to the hazard must be "adequately controlled", the Recorder found that, even if what the appellant described as the common practice was followed by the keepers, the agreed expert evidence was to the effect that the chance of an unintended firing was "very low". On the other hand, if the unintended firing did occur the nature of the injury could be serious. This analysis was undisputed. Mr Copnall recognised that, upon the agreed expert evidence, there were a number of occurrences, more or less improbable, which had to befall the appellant before the risk of unintended discharge was realised. However, we accept the appellant's case that appropriate instruction and training was required in order to ensure that the risk was "adequately controlled".

In the Recorder's opinion the only feasible measure by which the risk of unintended firing could be controlled in the circumstances of the appellant's accident was a system of instruction and training. The Recorder found that the appellant was regarded as a responsible employee, experienced with a shotgun, and had, upon the Recorder's judgement of the evidence, been properly instructed and trained. By this means, even in the absence of periodical checks as to the practice being adopted by the appellant, the employer had taken the appropriate measures to ensure that the risk was "adequately controlled". As the Recorder put it:

"19...The only feasible control mechanism was to draw up a system...to impart knowledge of the system by adequate training and to ensure, in so far as possible, that the system was observed. The best practice was drawn up. I found that there was training in it. As for ensuring that it was observed, the defendants are entitled to rely upon their knowledge of the claimant, to which I have already referred, as someone who appreciated the need for instruction-based safety procedures, and who appeared responsible enough to follow instructions and upon the supervision and observations of Mr Shepherd, in whose presence best practice appears invariably to have been used.

20. As Mr Copnall suggests, more could have been done, such as asking employees about whether they actually followed best practice. However, that is almost always true...of almost any accident, and it is not the test. The question is not could the employer have taken this, that or the other additional precaution, but rather, looking holistically at what the employer actually did, was it adequate control? In my judgment, in the circumstances of this case, it was."

Mr Copnall renewed before this court the argument which he addressed to the Recorder. As we have noted, the appellant and Mr Pettit both gave evidence that it was common practice among the keepers, when working alone, to carry live cartridges within the breech of their broken shotguns even when negotiating obstacles. The only evidence upon the issue adduced on behalf of the respondent was the witness statement of Mr Shepherd, who said:

"19. I have been out on shoots with Mark prior to this incident and seen him climb over stone walls. He has on these occasions never given me any cause for concern. I have observed Mark remove cartridges from his shot gun before going over walls.

20. I have never seen Mark attempt to climb over a wall with the cartridges still loaded. If I had, then I would have specifically instructed him not to do this. This would be one of the first basic principles of gun use that everybody learns.

None of this was in dispute. The statement continued:

26. Between the Gamekeepers and myself, the topic of gun safety came up on quite a regular basis and was talked about in general conversation. This was never documented. The other gamekeepers were aware that they shouldn't attempt to climb over walls with cartridges still loaded. This was never a condoned practice and [sic] is clearly illustrated in the various guidance notes."

We have noted that in evidence both the appellant and Mr Pettit agreed that they did in fact adopt "best" practice when in the company of Mr Shepherd.

It was, in the appellant's submission, not sufficient to instruct the keepers as to approved practice. The mortal danger presented by the accidental discharge of a shotgun was such that the employer had a duty, in order adequately to control the risk, to ensure that its instructions were being followed. Accordingly, written instructions were insufficient unless they drew attention to the practice among keepers working alone and forbade it. Such instructions could only be given if the respondent was aware of the practice, and the respondent could only be aware of the practice if it conducted secret spot checks, or made enquiries among the keepers and at least one of the keepers admitted it. At the least, it was submitted, regular reminders of the instruction should have been issued. No spot checks were carried out and no enquiry was made of the keepers. For this reason, it was submitted, the system of instruction and training was inadequate to control the risk to which the appellant was exposed.

The task in which the Recorder was engaged was an assessment of the nature of the hazard and the nature and degree of the appellant's exposure to the risk. The appellant acknowledged in evidence that when in the presence of any other person, including Mr Shepherd, he removed the cartridges from his gun when crossing an obstacle. He accepted that he knew of "best" practice and the reason why best practice should be followed. The agreed expert evidence was to the effect that, contrary to the explanation given by the appellant and Mr Pettit, there was no exigency of the work of river bailiff or keeper which should have tempted them to contravene that practice. Nevertheless, had there been reason to suspect that the appellant in particular or the keepers in general were taking risks with their safety, we accept that the duties under regulations 8, 9 and 12 should have been assessed accordingly.

The evidence accepted by the Recorder was that the specific risk which attended the keeper's work was raised at the meeting held on 15 December 2000 and discussed, and, in consequence, the relevant instructions were issued in writing. Those instructions were re-issued in almost identical terms in November 2001 and as recently as November 2005. They were in mandatory terms. The appellant and Mr Pettit denied having been so instructed but their evidence was rejected upon this issue. They did, however, both accept that they knew what the proper practice was. The Recorder was entitled to infer that they knew best practice because they had been taught it. The appellant said that whenever he was in the company of another he adopted that practice. The occasion for a revelation that the keepers were adopting a contrary practice, if that was the case, was the meeting on 15 December 2000 when these matters were discussed expressly in order to identify risk and the prevention of risk. There was no evidence before the Recorder that anyone present raised the matter. In our judgment, the absence of any ground to suspect improper practice was a fact material to the Recorder's assessment of the nature and degree of risk. In this case, unlike Dugmore and Allison, the employer had sought out risk, identified it and issued instructions accordingly. Written instructions were periodically re-issued. There was no cause for the respondent to think that, despite those instructions, the appellant was, in private, adopting an unsafe practice and, therefore, no reason to make unusual or surreptitious investigations. In our judgment, the Recorder made no error when concluding that (1) it was not reasonably practicable to prevent exposure to the risk and (2) the instructions and training provided were such that the risk to which the appellant was exposed when using his shotgun was adequately controlled.

Mr Copnall complains that the Recorder failed to make a specific finding whether or not it was common practice among the keepers, when working alone and crossing an obstacle, not to remove cartridges from their guns. However, the terms of the Recorder's judgment at paragraph 20 (paragraph 25 above) make it clear that he assessed the adequacy of control on the assumption that at least some of the keepers were adopting the alleged practice. It would have been preferable had the Recorder made a specific finding but we do not consider it was essential for a proper resolution of the regulation 12 questions.

Mr Copnall also challenges a finding of fact made by the Recorder at paragraph 17 of his judgment which reads:

"There are two further issues relating to the facts about which I have heard which I ought to mention. Firstly, both the claimant and Mr Pettit said they would adopt best practice in the presence of Mr Shepherd. This may be because it was their practice to adopt best practice when in the presence of any other person. I very much got the impression, however, especially from Mr Pettit, that this was a specific reflection upon Mr Shepherd, the implication being that he was someone in a position of authority and who would insist upon best practice being observed at all times..."

Mr Copnall says that Mr Shepherd's insistence on best practice was not an averment made at trial and there was no evidence to support what the Recorder called his "impression".

In our judgment there was evidence which supported the Recorder's finding. Mr Shepherd said in his witness statement that he had been in the field with the appellant and that if he had seen the appellant fail to remove cartridges when crossing an obstacle, he would have instructed him accordingly. During cross examination by Mr Wells the appellant had not been entirely consistent as to the reason why he had always removed the cartridges when in the presence of Mr Shepherd but did not do so on the occasion of his accident when he was alone. First, he had said that the nature of his work required him to prepare for rapid fire; second, he said that he had not thought about the risk; and third, he said that he had assessed the risk and thought he was safe to leave the cartridges in place. It was a natural and, in our view, permissible inference that the appellant knew what he should do and the reason for it; that when in the presence of Mr Shepherd or anyone else he would remove the cartridges because he knew what was expected of him.

Mr Pettit also told the Recorder that if he was alone he would leave the cartridges in his gun. If, on the other hand, he was with Mr Shepherd he would take them out. Mr Pettit and the appellant had, therefore, given evidence to much the same effect. For the reasons we have given it was open to the Recorder to infer that the keepers were aware what Mr Shepherd's attitude would have been if he had come across them ignoring standard or, as the appellant called it, best practice.

The Recorder was not required to spell out the detailed reasons for his "impression". Had the appellant succeeded in establishing his claim against the respondent, his reasons for taking the action he did at the time of his accident would have been material to the issue of contributory fault. However, the appellant's motivation for adopting a different practice when in the company of Mr Shepherd from his practice when working alone was not an issue central to primary liability. The material issue was whether Mr Shepherd had reason to suspect that the appellant or any other keeper did not adopt the correct practice when working alone. Neither of the parties and no witness suggested that anyone failed to adopt best practice or talked about not adopting best practice when Mr Shepherd was around.

Conclusion

The appellant advanced before the Recorder further claims that the respondent was in breach of regulation 4 of the Manual Handling Operations Regulations 1992 (SI 1992 No 2793), and regulation 4 and schedule 1 of the Management of Health and Safety at Work Regulations 1999 (SI 1999 No 3242). Finally, it was contended that the respondent was in breach of its common law duty of care as an employer. Each of these claims was dismissed. Mr Copnall acknowledged that the ultimate issues which arose as to the sufficiency of the assessment of risk and appropriate instructions and training were the same in each case. If, as we have found, the appellant could not succeed upon his appeal against the Recorder's judgment in respect regulation 12, then he could not succeed upon the balance of his claims.

For the reasons we have given the appeal is dismissed. In the circumstances, no issue of contributory negligence arises.