England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESTON COUNTY COURT
HHJ Butler

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/04/2016

Lord Justice Tomlinson :

1. This appeal raises a question under The Workplace (Health, Safety and Welfare) Regulations 1992, hereinafter called "the Regulations". The workplace here in question was Burnley Police Station, or more particularly the cell complex. On 17 July 2010 the Claimant, then about 22 years old and with 3 years experience in her role, was working at Burnley Police Station as a civilian detention officer, "CDO", or civilian custody officer. She was employed by Group 4 Security Care and Justice Services, "G4S". The Defendant Chief Constable was the occupier of the police station and had entered into a contractual arrangement with G4S for the provision of custody services including the deployment of the Claimant. The Defendant was not therefore the Claimant's employer but owed to her the duties set out in the Regulations as he had control of her workplace by virtue of being in occupation thereof.
2. During the night in question the Claimant unhappily sustained an accident whilst working in the cell complex. A female "detained person", "DP", had been arrested and charged with being drunk and disorderly. The DP was abusive although not violent and so drunk that she was not in a fit state to undergo the normal processing by the duty sergeant, Sergeant Rowe. Sergeant Rowe asked the Claimant and her female colleague CDO Wilson to take the DP to cell No.11.
3. The Claimant took up position on the DP's left. The Claimant took hold of the DP's left shoulder, probably with her left hand, and took hold of her left wrist, probably with her right hand. The DP's wrist was twisted up behind her back. CDO Wilson adopted the same technique on the DP's right hand side. In this manner the Claimant and CDO Wilson effectively frog-marched the DP to the cell, which as it happens was relatively remote from the custody office.
4. The Claimant and CDO Wilson successfully negotiated various narrow corridors and gates but unfortunately on their arrival at cell No.11 they were confronted by an unexpected obstacle. Cell No.11 was of course unoccupied, ready to receive a new visitor. As they approached, cell No.11 was on the right hand side of the corridor. It was the normal practice at the police station that the door of an unoccupied cell would be left in the fully open position, although there was no standing instruction to this effect. The cell doors were hinged on the outside and opened outwards so that the fully open position involved their being pushed back almost flush to the wall – their handles prevented their being fully flush. The door of cell No.11 was hinged on the side of the door closer to the ladies as they approached the cell three abreast. On this occasion however the door of cell No.11 had inadvertently been left partially open. It was open at an angle facing towards them at a little under 90 degrees. The gap between the leading edge of the door and the opposite wall of the corridor was only about 13 inches, obviously insufficient for the cohort to pass through formed up as it was. CDO Wilson, being the closer of the two officers to the door, took one hand off the DP in order to take hold of the door handle to open the door more fully. However the body of the DP presented an obstacle to the door opening further. In consequence CDO Wilson took both hands off the DP in order to complete the door-opening manoeuvre, which she did successfully. However as the Claimant and the DP moved forward the DP suddenly went to ground, whether deliberately or inadvertently is unclear. She did not strike the door but simply went suddenly to the ground taking the Claimant by surprise, pulling the Claimant with her. The Claimant let go with her own left hand and used her left forearm to try to hold the DP up by putting her left hand across the chest of the DP. Unfortunately the DP was heavy. Although only 5 feet 3 inches tall, she weighed some 13 stones 7 pounds. She pulled the Claimant to the floor. As she landed the Claimant's left arm was trapped between her body and the floor.
5. At the time the Claimant did not think that she had suffered any or any significant injury, but it later turned out, according to the pleaded case, that she had suffered a significant injury to her left dominant wrist.
6. The Claimant alleges that in consequence of the cell door not being fully open "flush" to the wall at an angle of almost 180 degrees, the corridor, which it is accepted was for these purposes a part of her workplace, was not maintained in an efficient state, so that the Defendant was in breach of the duty owed to her pursuant to Regulation 5 which provides:

"Maintenance of workplace, and of equipment, devices and systems

5.—(1) 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.

(2) Where appropriate, the equipment, devices and systems to which this regulation applies shall be subject to a suitable system of maintenance.

(3) The equipment, devices and systems to which this regulation applies are—

(a) equipment and devices a fault in which is liable to result in a failure to comply with any of these Regulations; and

(b) mechanical ventilation systems provided pursuant to regulation 6 (whether or not they include equipment or devices within sub-paragraph (a) of this paragraph)."

7. Other issues were canvassed at the trial which took place over 2 days in March 2015 at Preston County Court before His Honour Judge Butler. The trial was concerned only with liability and causation, there being issues as to the significance of an underlying pre-existing condition of the left wrist from which the Claimant suffered. It is now accepted that the Claimant's only possible route to success in her claim is to establish a breach of Regulation 5, which imposes strict liability. There is no doubt that the Claimant did suffer an injury to her wrist in the course of this accident. The judge held that if the partially open door brought about a breach of Regulation 5, it is appropriate to say that the breach caused the injury rather than simply supplying the occasion for the injury, as the Defendant had contended at trial. However the judge concluded that there was no breach of Regulation 5. The judge found that the partially open door presented no foreseeable risk of injury.
8. It is irrelevant for present purposes to determine the contribution made by the injury sustained on the night in question to the long term debilitation to her left wrist suffered by the Claimant. The only question on this appeal is whether the judge was correct to conclude that there was no breach of Regulation 5.
9. It was common ground on the appeal that if the partially open cell door presented no foreseeable risk of injury then it could not be said that the workplace was not maintained in an efficient state and thus there could be no breach of Regulation 5. I would myself perhaps frame the proposition a little more cautiously in terms of foreseeable material risk of relevant injury, but it may be that that is pedantry. In Koonjul v Thameslink Healthcare Services [2000] PIQR 123, [2000] EWCA Civ 3020, which was concerned with the Manual Handling Regulations, Hale LJ spoke of "a real risk, a foreseeable possibility of injury" and a real risk is, I think, a material risk.
10. The foreseeable injury must I think be a relevant injury because the foreseeable injury must of course in this context be an injury to those whose workplace is under consideration. These Regulations are concerned with the health, safety and welfare of those required to work in the relevant workplace. I mention this point because I do not consider that a foreseeable risk of injury to a visitor will suffice, although often any foreseeable risk will no doubt be one which concerns a person whose workplace is under investigation just as much as it concerns a visitor. Here the evidence tended to show, unsurprisingly, that the risk of a drunk and disorderly DP being injured, or injuring himself or herself, is increased by any delay in getting him or her safely into a cell to cool off. There was therefore evidence that a partially open door could lead to a modest delay in delivering the DP into the cell which could increase the risk of injury to a DP. That in my judgment has little or no bearing on the question whether the partially open door presented a foreseeable risk of injury to the CDOs. The risk identified was simply that associated with delay in getting drunk and disorderly DPs into cells. It had no obvious connection with a partially open door other than identifying the partially open door as a source of delay. The partially open door was not itself identified as a possible source of injury other than through its potential to delay the delivery of the DP into the cell, and was not identified as a potential source of injury to the CDOs.
11. Hale LJ also pointed out in Koonjul that in making the risk assessment called for by the Manual Handling Regulations "there has to be an element of realism". The same is true in my judgment of the assessment which the court must make of the foreseeability of risk of injury in the context of the present Regulations. That is why the risk must be real or material, although it does not have to approach a probability.
12. It was for the judge to decide what is essentially a jury question. However his decision on the point could properly be informed by the evidence which he heard from those responsible for the health, safety and welfare of those who worked within the police station, and it is said that the judge failed to give appropriate weight to elements of that evidence.
13. Two particular pieces of evidence are emphasised by the Appellant. Sergeant Rowe was asked why, in the absence of any standing instructions, it was or should be the usual practice to leave the doors of empty cells fully open. He replied:

"A. That's, I would say, based purely on operational experience. If we are placing detainees in cells, then it's much more practical for the entrance to be unlocked, open so that we can just gain immediate access."

After agreeing that detainees came in not just all shapes and sizes but in all kinds of demeanour and temperament, and that it is unfortunately in the nature of drunk and disorderly detainees in a police station that their demeanour may undergo sudden shifts, he agreed with the following formulation proffered by Mr Mulholland for the Claimant:

"Q. So any obstruction in a sense to getting a person safely and quickly into a cell is to be avoided if at all possible, it makes sense?

A. Yes, I can't disagree with that, yes."

14. Temporary Chief Inspector Victoria Crorker had particular responsibility for the assessment and control of risks in the cell complex. She was asked by the judge at the conclusion of her cross-examination:

"Q. In agreeing with your sergeant that he is absolutely right to say that the proper thing, what you would expect is to find that the door be open at 180 degrees, what would be the reason for that in your view?"

To which she replied:

"A. Well, for me it's common sense. If the door is as open as it can be, that reduces the risk of it being a hazard blocking the corridor in some way."

15. In further cross-examination by Mr Mulholland following that evidence, and her earlier answer that partially open doors creating an obstruction had never come to her attention as a problem, she was asked:

"Q. Would it be right to say that it was never recorded as a problem because it was such a no brainer that the door should be opened flush at 180 degrees?"

To which she replied:

"A. It was just never even an issue about the doors. It was just common sense that that's how they should be, yes."

16. Having noted that there was in this instance a comprehensive risk assessment which identified risks associated with cells and their doors but which did not identify partially open cell doors as presenting any risk, and having cited the well known guidance on the topic provided by Smith LJ in Allison v London Underground Ltd [2008] EWCA Civ 71, the judge concluded:

"63. . . . it is quite clear to me that the claimant and her colleagues saw nothing to criticise in the presence of that open door. They did not stop short with a cry of surprise. They did not stop to discuss what on earth they were to do with this unexpected thing. They simply dealt with that open door in an instinctive way; it was an open door, it needed to be closed. It was their responsibility as the custody officers to assess how when closing that door they kept their detained person (a) safe and (b) under restraint.

64. They did not report it to the custody sergeant as any problem at all. I find as a fact on the claimant's own evidence that no report whatever was made at the time to anyone in a position of responsibility to the effect that this should be regarded as a breach of the system, a breach of some instruction, standing or understood. The claimant and CDO Wilson did not think anything of it. In the context of health and safety as opposed to efficiency of detaining people, in my judgment no unsuitability or insufficiency arises from this risk assessment. On what was known and what could have been foreseen, in my judgment a suitable and sufficient risk assessment was performed and, therefore, logically approaching the question of whether there was a foreseeable risk of injury, following Lady Justice Smith's guidance, I find that there was no foreseeable risk of injury."

17. It is submitted by Mr Mulholland that in reaching this conclusion the judge failed properly to reflect the significance of the evidence which I have highlighted above and in particular that he derived therefrom a false dichotomy between operational efficiency and safety. Mr Mulholland submits that the natural corollary of getting detained persons safely and quickly into a cell is the safety of those who are carrying out that operation. He submits that the relevant users of the corridor to whom the judge should have had regard are the sub-set comprising those who are escorting drunk and disorderly potentially disruptive detained persons to the cells. The risk that is said to be foreseeable as a result of leaving the door partially open is that one of the two custody officers may have to let go of the prisoner and the prisoner may then deliberately or accidentally fall, thereby injuring the custody officer.
18. Attractively though these points were presented, they do not in my judgment render the judge's conclusion impermissible, still less wrong. It is important to get detained persons quickly into a cell because, ordinarily, once inside a cell they are less at risk of injuring either themselves or others, and incarceration and isolation may have a calming effect. It goes without saying that it is important that the safety of detained persons is respected during the entirety of the operation. What has to be focused on here however is whether the partially open door presented a real or material risk of injury to the CDOs. In considering these regulations we are concerned with the health, safety and welfare of the CDOs, not with the health, safety and welfare of the DP. It is obviously the case that the longer the CDOs are required to associate at close quarters with DPs, particularly drunk and disorderly DPs, the greater is the risk that the CDO will be injured by the DP. The question however is whether the partially open door presented a real risk of injury to the CDOs over and above that inevitably associated with the job in question.
19. Mr Jonathan Grace for the Respondent submits that the judge was entitled to reach the conclusion that, absent hindsight, there was no foreseeable real risk of relevant injury having regard to:

i) The absence of evidence, from witnesses or in documents, to the effect that anything had previously occurred to indicate a risk of the nature now alleged by the Appellant – as the judge observed, at [62], "an open door in perfectly good working order might be an inconvenience to be closed but beyond that what is the risk of injury?";

ii) The fact that, on the night of the accident, [64] "the claimant and CDO Wilson did not think anything of it";

iii) The totality of the written and oral evidence of Sergeant Rowe and temporary Chief Inspector Crorker, which he was entitled to and did find clearly reflected an assessment that the good sense of leaving doors fully open related to operational efficiency considerations rather than the health and safety of the workforce; and

iv) The detailed analysis of the evidence as to prior risk assessment which informed a finding, [64], that "in the context of health and safety as opposed to efficiency of detaining people . . . no unsuitability or insufficiency arises . . .".

20. I agree with Mr Grace. The judge's conclusion that the partially open door presented no real risk of relevant injury was in my view not just within the ambit of reasonable decision-making but obviously correct. The cell complex contains 27 cells and 5 detention rooms. The notion that every time one of those doors is inadvertently left partially open there is created a material risk of injury to those who work in the corridors lacks reality. The dichotomy which the judge perceived was both real and practical.
21. In those circumstances the appeal must fail. The judge went on to conclude that even if there was a foreseeable risk of injury still there was no breach of Regulation 5 because the door was "equipment" rather than a place of work, and the door was in perfect working order, not in any way faulty. The judge did not need to go into this analysis. The relevant workplace here was the corridor. The submission which the judge had to address was that the corridor was rendered unsafe – or more accurately not in an efficient state – by the very circumstance that the door was in a partially open position, and that therein lay the breach of Regulation 5. Having concluded that the partially open door did not present a real risk of injury the enquiry was at an end. The question whether the door was a fully functioning door was neither here nor there – it was its position which was said to be relevant not its state of repair. Its position did not entail that the corridor was not maintained in an efficient state and so there was without more no breach of duty.
22. The judge also concluded that there was no breach of Regulation 17, which requires that traffic routes in a workplace shall be suitable for the persons using them. The judge concluded that an open door in perfectly good working order capable of being moved aside created no unsuitability. Mr Mulholland accepted that the problem described was at best "transient" and that the judge's approach in the context of the suggested breach of Regulation 17 could not be faulted. Mr Mulholland was right so to do, but his acceptance that he could not succeed under Regulation 17 was in fact fatal to the argument under Regulation 5. The corridor was the workplace and if the partially open door did not render it unsuitable for pedestrians under Regulation 17 it could not render it not maintained in a efficient state under Regulation 5, not even for the specific sub-set of persons escorting drunk and disorderly detained persons.
23. I am in one sense happy to reach this conclusion because the notion that a cell door inadvertently left half open should in this context expose the Respondent to strict liability for injury attributable to an accident of the type which here occurred lacks all reality. The reality is that this was the sort of unfortunate accident which could have arisen in almost any circumstances in a police station. That does not however detract from my profound sympathy for the Claimant. The Claimant was doing an unpleasant job dealing with a drunk and obstreperous individual in the course of which she sustained a nasty injury, albeit it has not been determined to what extent the injury on the night in question has contributed to her longer term functional deficit. The judge found the Claimant an impressive witness and there is no suggestion that she has in any way embroidered her account or exaggerated her subsequent symptoms. The accident which befell her whilst carrying out her duties was however a misfortune the consequences of which cannot be visited upon the Respondent.
24. I would dismiss the appeal.

Lord Justice Simon :

25. I agree.

Mr Justice Morgan :

26. I also agree.