England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
On appeal from Middlesbrough County Court
Her Honour Judge Matthews QC 2YL78702

		Rolls Building Fetter Lane, London, EC4A 1NL
		10/10/2014

Table of contents:

A. Introduction	1
A1. Overview of the claim and the appeal	1
A2. The issues below, and the judgment	12
A3. My conclusion, and the structure of this judgment	20
B. The facts found by the judge	21
C. The claim under regulation 12(3)	31
C1. Regulation 12(3) and the reasonable practicability defence	31
C2. Absence of notice and opportunity to respond	33
C3. Adequacy of evidence on reasonable practicability	44
C3.1 Adequacy of evidence: general	44
C3.2 Adequacy of evidence: the alleged possibilities	45
C3.3 Evidence, alleged lack of notice, and opportunity to respond	58
C4. Reasonable practicability: alleged errors of law	63
D. Regulation 5(1)	69
E. Conclusion	79

Mr Justice Walker :

A. Introduction

A1. Overview of the claim and the appeal

1. This is an appeal against a decision of Her Honour Judge Matthews QC sitting at Middlesbrough County Court. By her decision she dismissed the claim of the appellant claimant ("Mr Burrows") against his employer, the respondent defendant ("Northumbrian Water"), for damages for personal injury.
2. In February 2010 Mr Burrows accidentally fell and fractured his ankle. The accident happened while he was on foot on a concrete access road at Whorley Hill in the course of his work for Northumbrian Water. He had been employed by Northumbrian Water for approximately 35 years. At the time of the accident, and since 1 March 2000, his job was that of Trunk Mains Operator. It involved among other things the adjustment of valves, and it required him to make emergency visits in order to respond to alarms at unmanned reservoirs. One such is at Whorley Hill, which lies to the north of the River Tees and to the east of Barnard Castle.
3. Mr Burrows's claim in these proceedings was that he fell on black ice, and that Northumbrian Water was liable for the resultant physical damage, pain and suffering and financial loss. It was said that his fall was caused by common law negligence on the part of Northumbrian Water, alternatively by breaches by Northumbrian Water of statutory duties imposed by the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations") and the Provision and Use of Work Equipment Regulations 1998.
4. The particulars of claim identified two main factual aspects of what occurred. First, it was said that what Mr Burrows slipped and fell on, while walking on the access road, was black ice, and that the presence of black ice on the access road involved negligence or breach of statutory duty. I shall refer to this as "the black ice claim". Second, it was said that Mr Burrows slipped and fell in circumstances where he had had to leave the vehicle provided to him by Northumbrian Water, and that he had had to leave it because negligently or in breach of statutory duty it had not been equipped with proper tyres. I shall refer to this as "the tyres claim".
5. Northumbrian Water denied any such negligence or breach of duty. It said as regards both the tyres claim and the black ice claim that it had done all that the common law and the regulations required.
6. Thus central questions at trial were likely to concern what measures needed to be taken by Northumbrian Water as regards the risk that emergency operatives might slip on black ice when on foot on the access road and the risk that vehicle tyres might not be adequate. Northumbrian Water contended that it had taken such measures as were needed to provide the protection to emergency operatives required under principles of common law liability for negligence and under the regulations in question. If, as Northumbrian Water contended, it had indeed taken all such measures as were required of it, then the claim would fail in its entirety.
7. Each of the black ice claim and the tyres claim involved sub-claims of common law negligence and of breach of particular regulations. Within the negligence sub-claims specific factual issues arose. Within the sub-claims for each particular regulation relied on there were potential, and to varying degrees actual, sub-issues of law and fact concerning the applicability of the relevant regulation, its effect, and whether Northumbrian Water was in breach. Unfortunately, as discussed in section A2 below, there was no agreed list of issues prepared to assist the judge at trial.
8. The claim was tried by Her Honour Judge Matthews QC at Middlesbrough County Court. Witness evidence on both sides was heard on 18 July 2013. Written closing submissions were lodged, after which oral submissions were heard on 16 September 2013. In a written judgment handed down on 3 December 2013 the judge found that Mr Burrows's injuries were not the fault of Northumbrian Water as a matter of common law negligence, nor had there been any breach of statutory duty. Accordingly she dismissed the claim.
9. In this appeal there is no challenge to the judge's conclusion acquitting Northumbrian Water of negligence in relation to both the black ice claim and the tyres claim. Nor, as regards the tyres claim, is it said that the judge ought to have found in favour of Mr Burrows's sub-claims asserting breach of statutory duty.
10. Mr Burrows's complaints on appeal concern only the black ice claim, and are limited to the judge's rejection of that claim under the Workplace Regulations. There are 9 grounds of appeal. Grounds 1 to 8 assert in various ways that the judge "was wrong and/or unjust" in relation to Mr Burrows's claim under regulation 12(3). Ground 9 asserts that the judge "was wrong and/or unjust" in relation to Mr Burrows's separate claim under regulation 5(1).
11. Skeleton arguments were provided by each side prior to the hearing of the appeal. At the hearing of the appeal I was assisted by oral submissions from Mr Stuart Roberts and Mr Edward Broome appearing on behalf of Mr Burrows and Northumbrian Water respectively, as they had done before the judge. Written submissions in reply by Mr Roberts were lodged after the conclusion of the hearing at my request.

A2. The issues below, and the judgment

12. This was a case where the complexity of actual or potential issues and sub-issues plainly called for steps to be taken by the parties to agree a list of issues. It is unfortunate that in the present case no agreed list of issues was ever prepared. The result was that the written closing submissions provided to the judge lacked a clear focus.
13. The problems arising from the lack of any agreed list of issues persisted right through to the start of the hearing of the appeal. At an early stage in the argument on the appeal I concluded that I needed a document giving an account of relevant issues as they were at the start of the trial and of how they changed as matters developed prior to the judgment. The hearing was adjourned so that such a document could be prepared and agreed by the legal teams on each side.
14. Shortly after midday I was supplied with the document I had sought. It was drafted at a high level of generality. What emerged was that the position prior to judgment was said to have included the following:

(1) it had been agreed that the Workplace Regulations applied and that the access road was a traffic route within the meaning of those regulations;

(2) as regards regulation 12(3) of the Workplace Regulations, prior to judgment there were disputes among other things as to a defence which I shall call "the reasonable practicability defence";

(3) contentions on behalf of Mr Burrows in relation to the reasonable practicability defence included a contention that the defence could not be raised "unless it was plainly and self evidently impossible in practical terms to take the steps in question";

(4) regulation 12(1) of the Workplace Regulations "was introduced [as having been broken, and thus giving rise to a further sub-claim] on the basis that if [Northumbrian Water] was permitted to address the court on the basis of the [reasonable practicability] defence afforded under regulation 12(3), [Mr Burrows] would seek to introduce regulation 12(1)";

(5) a dispute also existed as to whether regulation 5(1) of the Workplace Regulations applied "to a case of snow and ice on the ground due to its transitory quality";

(6) it was agreed that if regulation 5(1) applied then "liability was strict".

15. The document added that Northumbrian Water disputed the applicability of regulation 12(1) for the same reasons as it disputed the applicability of regulation 5(1). In oral submissions on the appeal there was no contention on behalf of Mr Burrows that regulation 12(1) would enable him to succeed if his claim under regulation 5(1) failed. That being so, I say no more about regulation 12(1).
16. Even with the belated benefit of this document I did not find it easy to gain a clear understanding of what factual and legal issues arose for consideration by the judge and where they fitted in to the claims and sub-claims.
17. It seems to me to be apparent from the judgment that similar problems confronted the judge:

(1) Her judgment dealt with introductory matters in paragraphs 1 to 4, including an observation in paragraph 4 that the burden of establishing liability rested on Mr Burrows.

(2) Paragraphs 5 to 18 were headed "The Evidence" and dealt with a number of matters:

(a) Paragraphs 5 to 9 described the evidence given by Mr Burrows.

(b) Paragraphs 10 and 11 noted that he appeared to change his evidence from an account in which he walked down the near side of his vehicle to an account in which he walked down the driver's side, and gave reasons for preferring the first account.

(c) Paragraph 11 also made a finding that "Mr Burrows did not access his PDA [Personal Digital Assistant] as he should have done" and recorded evidence by his manager, Mr Bates, that "all operatives should access the risk assessment before doing a task".

(d) Paragraph 12 described what happened when Mr Bates and Mr Nevison came to the rescue of Mr Burrows.

(e) Paragraphs 13 to 17 gave an account of aspects of oral evidence at trial, and documentary evidence supplied after trial, in relation to the vehicle used by Mr Burrows and its tyres.

(f) Paragraph 18 made a finding that (contrary to the evidence advanced on behalf of Mr Burrows) the vehicle had not on any previous occasion been fitted with off-road tyres.

(3) Paragraphs 19 to 43 were headed "My findings in respect of the evidence". Paragraphs 19 to 29 were concerned with the black ice claim, making findings of fact in that regard (see section B below) and giving reasons for concluding that "this was an unfortunate accident which was not due to fault on the part of the employer." Paragraphs 30 to 41 gave reasons for acquitting Northumbrian Water of fault in relation to the tyres claim. Paragraphs 42 and 43 gave reasons for acquitting Northumbrian Water of fault in relation to an unpleaded claim advanced in oral evidence that the vehicle was in some other way unfit for purpose.

(4) Paragraphs 44 to 53 were headed "My Findings in respect of the applicability of the Regulations". As to those paragraphs:

(a) Paragraphs 44 to 51 are discussed in section C below. They were confined to a consideration of the Workplace Regulations. The judgment did not expressly identify which particular regulation or regulations were being considered. The judge must, however, at least have had regulation 12(3) in mind, as she expressly made reference to the reasonable practicability defence.

(b) Paragraphs 52 and 53 were the two concluding paragraphs of the judgment. They stated:

52. On the evidence before me I do not accept that it is [Northumbrian Water's] fault that [Mr Burrows] fell over and sustained injury. Nor do I accept that [Northumbrian Water] is in breach of [its] statutory duty nor breached [its] common law duty …

53. For the reasons set out above this claim is dismissed. …

18. It is apparent from these two concluding paragraphs that the judge believed she had dealt with all the ways in which Mr Burrows advanced his claim. However she made no express reference to his sub-claim under regulation 5(1) of the Workplace Regulations. Nor in her judgment does she discuss the issue on regulation 5(1) as set out in the document that I requested, or any other issue specifically concerned with regulation 5(1).
19. I am sure that if a document containing an agreed list of issues had been prepared by the parties then the judge would have dealt expressly with regulation 5(1) in her judgment. Enabling the judge to have a checklist of this kind is an important benefit of such a list. But that is not the main reason why an agreed list of issues was needed. It was needed so as to enable orderly preparation for trial, presentation at trial, and consideration at and if necessary after trial, of the different claims and sub-claims, and of the particular factual and legal issues to be decided when determining the outcome. The written submissions and skeleton arguments provided to the judge, along with those provided to me prior to the start of the appeal hearing, lacked the orderly consideration which the court is entitled to expect.

A3. My conclusion, and the structure of this judgment

20. For reasons set out below I have concluded that the appeal must be dismissed. In section B below I summarise the facts found by the judge. I then turn to discuss grounds of appeal 1 to 8 in section C. They are all concerned with regulation 12(3), and in particular with the reasonable practicability defence. I begin with grounds 1 to 3, which complain that Mr Burrows had no notice that Northumbrian Water would rely on the reasonable practicability defence and no adequate opportunity to deal with it. I then turn to grounds 4 and 5, which assert that the evidence did not warrant the judge's conclusions on the reasonable practicability defence, before examining grounds 6 to 8, which allege various errors of law. In section D I deal with the separate claim under regulation 5, which is the subject of ground 9. My overall conclusions are set out in section E.

B. The facts found by the judge

21. In this section I summarise key points in the evidence as recorded by the judge. On some points her judgment simply records what was said by Mr Burrows. In my summary below I have assumed that the judge accepted Mr Burrows's evidence on the points recorded in my summary.
22. It was part of Mr Burrows's work to deal with emergencies at Whorley Hill and other unmanned reservoirs in remote locations. Prior to Mr Burrows's arrival at the Whorley Hill access road it had been snowy. While snow had cleared from surrounding fields and roads, some snow remained on the access road. The access road was on property belonging to Northumbrian Water, and had been built to give vehicular access to Whorley Hill reservoir. At the boundary of the property a gate across the entrance to the access road was padlocked for security.
23. Mr Burrows was told by his manager to go to Whorley Hill reservoir because it was in a state of high alarm and needed adjusting. For this purpose he was provided by Northumbrian Water with a Ford Ranger vehicle. It was a 4 wheel drive vehicle with all terrain tyres.
24. Mr Burrows arrived at the boundary of the property, got out of the vehicle, unlocked the gate, returned to his vehicle and drove on to the access road. His intention was to drive up to the reservoir, but his vehicle spun to the right and wedged against the kerb. He found that he could not reverse: the wheels spun and the vehicle was stuck. He therefore got out of the vehicle, walked up to the reservoir, carried out the task he had been sent to do, and walked back down to a salt box beside the gate. Although the judge does not say so expressly, it seems clear that, as explained in his witness statement, he saw there was some salt in the box. The judge records that he went back to the vehicle, and removed a shovel via the tailgate. He then visited the salt box, returned to the vehicle, and applied salt to the rear of most if not all of the wheels of the vehicle. Having done this, at a stage when he was at the rear of the vehicle near the tailgate, he slipped and fell and broke his ankle.
25. In response to a call for assistance Mr Bates and Mr Nevison of Northumbrian Water came to help. Neither of them fell while assisting Mr Burrows.
26. When he fell Mr Burrows was wearing Wellington boots. He had available to him what were described as "spikeys" (spiked footwear which Mr Bates said he had attached to Mr Burrows's workboots) but did not choose to use them. He had not struggled with his footing at any point prior to the fall. On the contrary he felt comfortable to walk about "all over the scene". The judge found that the area where he fell was an area that he was likely to have crossed twice before, and from this the judge inferred that the patch of ice on which he slipped may have been relatively small. The judge did not expressly make a finding that it was black ice that caused Mr Burrows to slip and fall. However it seems clear that she accepted that this was the case. Her judgment proceeds upon that basis, and the evidence as a whole pointed to black ice as the likely immediate cause.
27. Another employee of Northumbrian Water, Mr Donald, had visited Whorley Hill reservoir the previous day. However there was no evidence as to what happened on that visit and accordingly the judge made no findings in that regard.
28. Similarly there had been no evidence about the state of the access road on the previous day and the weather and temperature overnight. The judge said it would be inappropriate to speculate on those matters in the absence of tangible evidence. Thus she made no findings on any of those matters.
29. Nor did the judge make any finding as to what caused the vehicle to spin to the right, wedge against the kerb, and get stuck there. At paragraph 38 of the judgment, dealing with the question whether off road or winter tyres would have prevented the vehicle from getting stuck, the judge said simply:

It is not clear why the vehicle slipped to the side, whether it was as a result of icy conditions or indeed the driving.

30. In paragraph 29, when rejecting the assertion that Northumbrian Water should have been on notice of the condition of the access road and therefore should have despatched someone to deal with it, the judge found as follows:

This was an access road at an unmanned location which was relatively remote. This is just the sort of job which [Mr Burrows] is used to carrying out.

C. The claim under regulation 12(3)

C1. Regulation 12(3) and the reasonable practicability defence

31. Regulation 12(3) provides:

So far as 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.

32. It is now common ground that:

(1) the access road constituted a traffic route in a workplace for the purposes of regulation 12(3);

(2) the ice on the access road adjacent to the tailgate was a substance which might cause a person to slip or fall and did in fact cause Mr Burrows to do so;

(3) accordingly, subject to what I have called the reasonable practicability defence, Northumbrian Water had been under a duty to keep the access road free from that ice;

(4) the reasonable practicability defence will defeat the claim under regulation 12(3) if, adopting the opening words of that regulation, Northumbrian Water has so far as reasonably practicable (my emphasis) kept the access road free from ice;

(5) the burden of establishing the reasonable practicability defence is on Northumbrian Water.

C2. Absence of notice and opportunity to respond

33. Grounds 1 to 3 complain in various respects that Mr Burrows had no notice that Northumbrian Water would seek to advance the reasonable practicability defence, and that he had no adequate opportunity to deal with it.
34. The judgment did not identify specific complaints in this regard. To the extent that there had been such complaints, they were dealt with compendiously in paragraph 44 of the judgment as follows:

… in my judgment the suggestion that the employer should have assessed the risk from snow and ice and kept the whole of the access road clear from all such obstruction [effectively at all times] is plainly and self-evidently impossible in practical terms. It is correct that the Defendants have not pleaded "reasonable practicability" but it is in my judgment an inappropriate task which is being suggested. I consider that I can make this assessment myself on the evidence to hand.

35. This paragraph in the judgment must be seen in the context of the way in which the complaints in question were dealt with in the course of the proceedings. In his oral submissions in support of the appeal Mr Roberts explained to me that before the judge he had conceded that "there are always cases where at the extreme evidence is not needed". To his mind the concession was one which had no relevance, for in this case "it was patently possible to do something about it." For convenience I shall refer to the things which Mr Roberts submitted were "patently possible" as "the alleged possibilities".
36. As will be seen in section C3 below, the judge had no doubt whatever that the alleged possibilities were not reasonably practicable. Whatever may have been the position as regards the physical possibility of putting them in place, her view was that they were in her judgment "wholly unworkable". It is in this sense that the judgment comments in certain passages that Mr Burrows's case was not "practical".
37. Prior to learning how the matter had developed I was perplexed by the judge's statement in paragraph 44 that Northumbrian Water had not pleaded reasonable practicability. Paragraph 7.14 of the Defence filed by Northumbrian Water on 13 December 2012 stated:

7.14 The Defendant will aver that despite the fact the reservoir was attended by employees of the Defendant on a regular basis, the Defendant had received no complaints concerning the access way being a danger. In any event, the Defendant had taken all reasonably practicable steps to reduce the risk of injury in snowy and icy conditions by carrying out a risk assessment identifying remedial measures, providing all employees with suitable and sufficient personal protective equipment and installing a salt bin in close proximity to the access way. (my emphasis)

38. To my mind paragraph 7.14 asserted that it was not reasonably practicable for Northumbrian Water to do more than what it said it had done. It was not necessary for that purpose to say expressly that it was not reasonably practicable to have removed the ice in question prior to the accident. On a fair reading of paragraph 7.14 it seemed to me to be saying that Northumbrian Water had done all that was reasonably practicable by taking steps short of removing the ice, and this necessarily involved saying that removing the ice was not reasonably practicable.
39. However the point which was taken on behalf of Mr Burrows in this regard was that this paragraph was not a pleading "in relation to the steps which could and should have been taken to remove the snow and ice." For my part I would not agree. For the reasons I have given, paragraph 7.14 to my mind asserted that removing the ice was not reasonably practicable.
40. Nevertheless it is right to say that the defence did not in relation to alleged possibilities make specific assertions that they were not reasonably practicable. It is in that sense that both Northumbrian Water and the judge proceeded on the footing that Northumbrian Water had not pleaded reasonable practicability. In that context it seems to me that in the the last two sentences of paragraph 44 the judge was saying that while Northumbrian Water had not pleaded "reasonable practicability" in this sense it was nonetheless permissible to conclude that a defence of reasonable practicability had been made good. There were two circumstances relied upon by the judge for taking this course. The first was that the task being suggested by Mr Burrows was an inappropriate one. The second was that the assessment could be made on the basis of the evidence to hand.
41. As regards the complaint of lack of notice, in ordinary circumstances the validity a complaint of this kind turns on whether there was such an absence of notice as would cause prejudice to the complaining party. This has been the consistent approach in modern litigation: see, for example, the observations of May LJ at paragraph 14 of his judgment in Pratt v Intermet Refractories Ltd (Court of Appeal, 21 January 2000, unreported). I have no doubt that this is what the judge had in mind, and that the two circumstances she identified constituted her reasons for thinking that there was no prejudice to Mr Burrows in taking the course which she took.
42. In these circumstances the fairness or otherwise of the judge's approach turns on the question whether the course which she took involved prejudice to Mr Burrows. In order to answer that question it is necessary to examine the factual basis for the judge's conclusions on reasonable practicability. Accordingly I consider that question in section C3.3 below.
43. Ground 1 also complains that evidence on reasonable practicability given in re-examination by Mr Bates should not have been allowed, and that the judge's approach deprived Mr Burrows of the opportunity to adduce evidence, for example from Mr Donald. These specific complaints are also considered in section C3.3 below.

C3. Adequacy of evidence on reasonable practicability

C3.1 Adequacy of evidence: general

44. Grounds 4 and 5 assert that the evidence did not warrant the judge's conclusions on the reasonable practicability defence. I deal in section C3.2 with grounds 4 and 5 in so far as they complain of lack of evidence in answer to the various alleged possibilities. In section C3.3 I turn to a particular complaint identified as part of ground 5, namely that the judge was wrong or unjust to make findings on reasonable practicability in the light of the points made earlier about lack of notice and lack of adequate opportunity to respond. In that context I examine in section C3.3 the questions identified in the concluding paragraphs of section C2 above.

C3.2 Adequacy of evidence: the alleged possibilities

45. The grounds of appeal used "A" to refer to Mr Burrows and "R" to refer to Northumbrian Water. Grounds 4 and 5 are in these terms:

4. That the Learned Judge was wrong and/or unjust to find that there was no basis for concluding that R could have taken steps to ensure that the access road for the reservoir was kept free from ice and snow.

(a) Since it was not in dispute that Mr Donald had attended at the reservoir the day before the accident, or that there was a grit bin at the entrance to the access road, it was clear that Mr Donald could have taken steps to remove or break up the ice and snow, whether by spreading grit or otherwise. There was certainly no evidence before the Court that he could not have taken any such steps;

(b) The evidence was that R's staff generally attended at the reservoir at regular intervals to adjust the valve – Mr Bates stated that this would be about once every two weeks on average;

(c) Further there were separate asset security checks at the reservoir, carried out on a regular basis. The record of the checks appears to indicate that they continued to be carried out weekly with checks on 8^th, 15^th and 22^nd February 2010 – see the trial bundle pp 96-98;

(d) It appeared likely that someone who had attended on a day prior to A's accident had spread some salt close to the entrance gate – but not at the gate itself, which is where A fell;

(e) If it was possible for R to send staff to the reservoir on 8^th, 15^th and 22^nd February 2010, to check various matters including matters relation to health and safety, such staff could have considered the state of the access road, and taken such further steps as were necessary and appropriate, including:

(i) Noting the fact that the snow and ice took far longer to thaw from the access road than elsewhere;

(ii) Recording the said fact in their reporting/recording of their visits;

(iii) Spreading salt or grit across the area where the snow and ice remained or requesting that this was arranged to be done by others;

(iv) Requesting that the salt bin was refilled;

(v) Removing the snow and ice, whether with a shovel or otherwise, or requesting that this was arranged to be done by others.

(f) Further, as there were regular and ongoing visits by R's staff, it was reasonably practicable for R to review and check on the status of the access road, both in general terms and specifically given the tendency for the access road to remain covered in snow and ice for longer than the surrounding area. There was no evidence to indicate that staff attending for example on the site checks could not spread salt more generally on the access road in the event of snow and ice, and particularly around the area of the gate, where other staff would have to get out of their vehicles to open and close the gate.

5. That the Learned Judge was wrong and/or unjust to find on the facts that R had made out a Defence on the basis that it was not reasonably practicable for R to comply with its duties under Regulation 12(3) of the Workplace Regulations, to ensure that the access road for the reservoir was kept free from ice and snow. This appears to be the conclusion of the Court at paragraph 24 of the Judgment. A repeats the point made above at paragraph 1 (a) to (h).

46. It will be seen that ground 4 opens with words which appear to be complaining, not about the finding on reasonable practicability, but about alleged findings that there was no basis for asserting that things could have been done. Ground 4(f) and ground 5, by contrast, specifically refer to the judge's finding on reasonable practicability. If grounds 4(a) to (e) are intended to focus not on reasonable practicability but instead on alleged findings, separate from the judge's conclusion on reasonable practicability, they are misconceived. As appears below, the judge's reasoning dealt with reasonable practicability by making findings at a general level as to what was reasonably practicable. It is plain from the judgment that the judge did not find it necessary to consider whether particular alleged possibilities were practicable in the sense of being things which could physically be done. I shall therefore treat grounds 4(a) to (e), like ground 4(f) and ground 5, as focusing on the judge's implicit conclusion that there was no basis for asserting that the things in question could be regarded as reasonably practicable.
47. On this basis I turn to the findings in paragraphs 44 to 50 of the judgment. Paragraph 44 is in general terms and has been set out in section C2 above. Paragraphs 45 to 47 stated:

45. This is an unmanned reservoir which obviously has a light amount of traffic using its access road. The Claimant said in his evidence that there were a number of such reservoirs in the area in which he worked. It is of course correct to point out that there are regular visits by staff which may be as frequent as once per week. In addition there would be bound to be other unplanned visits, such as this one by the Claimant, the timing and frequency of which visits would be unpredictable.

46. I do not consider that it is practical for the Defendant to keep the whole of the access road clear of all black ice. They would have to keep the whole of the road clear not just a part of it. There is no point in simply keeping part of the road clear if it is to be considered appropriate for the employer to bear such a responsibility.

47. Whilst the submission here related to that part of the road which was cast in shadow by trees, any part of the road could be icy at any point, circumstances being variable. If there is no sun during the day then any ice, black or otherwise may not be melted at any point on the road and not simply on the shaded part.

48. In these paragraphs the judge makes initial points that on the access road there was a light amount of traffic, that timing and frequency of emergency visits would be unpredictable, and that the alleged possibilities would, if they were to achieve their objective, have to be put into effect as regards the whole of the access road. These points seem to me to be eminently obvious and fair. Neither Mr Donald under paragraph (a) of ground 4, nor the employees referred to in paragraphs (b) to (f), could work on the basis that the only location where an emergency operative might have to walk on the access road was the location where Mr Burrows fell. If the alleged possibilities were to achieve their object, they would have to be put into effect so as to clear the access road in its entirety in order to guard against an event which might or might not arise on a visit whose timing and frequency were unpredictable.
49. Paragraphs 48 and 49 stated:

48. The only way that the Defendants could ensure that the whole of the access road was completely clear and completely, potentially safe in winter months would be to visit more or less daily. The visits to the reservoir are not completely predictable as this instant case demonstrates and therefore the visits would have to be daily or the road would not be completely clear for the unplanned visit of an employee.

49. There will be occasions such as this when there are emergencies necessitating special visits. If the whole access road was to be kept clear then it would have to be kept clear all of the time just in case an employee had to visit to regulate the controls in the case of such an emergency. This is wholly unworkable in my judgment.

50. These paragraphs in my view again make points which are eminently obvious and fair. In paragraph 48 the judge, in my view, is saying that if the alleged possibilities were to be of any value during the winter months then they would require at least daily visits. I say "at least" because, as the judge pointed out in paragraph 49, if the alleged possibilities were to be put in place so as to ensure that emergency operatives would have an access road clear of black ice, then they would have to be put in place all of the time.
51. Paragraph 50 stated:

50. Whilst the Workplace Regs do apply to this access road, the circumstances are obviously different to premises within a factory or for example in the car park of industrial premises. The footfall is very light indeed and irregular in nature. How is the road to be kept clear without someone accessing it in the first place? I do not consider that imposing such a burden upon an employer is workable or practical or appropriate.

52. In this paragraph the judge begins by identifying differences between the circumstances of the access road, on the one hand, and on the other hand those within a factory or at a car park of industrial premises. Two such differences are identified. Both concern the footfall. The first is that the footfall on the access road is very light. The second is that the footfall is irregular in nature. They are both differences which seem to me to be self-evident from the points made by the judge in earlier paragraphs.
53. The judge then goes on to ask a rhetorical question: how can the access road be kept clear without someone accessing it in the first place? The answer is obvious: the access road cannot be kept clear without someone accessing it in the first place. In order to keep the access road clear of ice someone must access it.
54. The point being made by the judge was obvious: the alleged possibilities involved no safety gain. Mr Broome in his oral submissions on the appeal rightly described it as "common sense." When taken with the points that the judge had made in earlier paragraphs, her rhetorical question was making the point that whatever it was said had to be done to clear the road prior to Mr Burrows's visit would have had to be done by one or more individuals who themselves would face the risks which Mr Burrows was faced with.
55. The point that if it was not Mr Burrows then it would be another employee that would have to deal with the risk in question is enough in my view to answer all the alleged possibilities. As it seems to me, however, when taken with what the judge had said in earlier paragraphs, her rhetorical question was making an even stronger point. She had said that clearing of the road by other staff, if it were to guard against the risk that emergency operatives would be exposed to ice, would have to be done over the whole of the road and would have to occur at least daily. As emergency visits were nothing like as frequent as daily, and when they occurred might not require the operative to walk on the whole of the road, it is common sense that requiring other staff to clear the access road on a daily basis would increase the number of occasions on which employees were exposed to ice, not decrease them.
56. Mr Roberts makes a criticism that the judge did not go through each of the alleged possibilities in turn. He notes, for example, that there is no finding of fact that Northumbrian Water could not have gritted the access road, or that it was not reasonably practicable for it to do so. This criticism in my view misunderstands the nature of the judge's ruling. Each of the alleged possibilities, if it were to be effective in keeping the access road ice-free, would expose a Northumbrian Water employee to risks from ice at least as great and probably greater than the risk to the emergency operative which the alleged possibility was supposed to prevent. This was just as much true of gritting as it was in relation to the other alleged possibilities: it required things to be done by an employee. If on foot such an employee would inevitably be exposed to the risk of slipping on the ice. If in a vehicle such an employee would inevitably be exposed to the risk of what happened to Mr Burrows: the vehicle becoming stuck, with a resultant need to cope with the ice on foot. Requiring a special visit by an employee would be likely to expose that employee to unnecessary hazards. Requiring steps to be taken by employees who visited for other reasons would similarly be likely to expose those employees to unnecessary hazards.
57. In these circumstances the complaint about lack of evidence in ground 4 is unfounded. The judge was in my view fully entitled to deal with the alleged possibilities generally, and to conclude for the reasons she gave that without examining them individually the alleged possibilities were neither workable nor practical nor appropriate in the sense that she was using those terms, namely as descriptive of something which was reasonably practicable. It has been commented (see Munkman on Employer's Liability, 14^th ed para 5.81) that courts have interpreted the defence of reasonable practicability very strictly against defendants and have repeatedly found defendants unable to prove the defence. Mr Roberts cited an example of this: the decision of the Court of Appeal in Bassie v Merseyside Fire and Civil Defence Authority [2005] EWCA Civ 1474. Nothing said by the Court of Appeal in that case, however, prevented the judge from reaching the conclusions that she reached in the present case.

C3.3 Evidence, alleged lack of notice, and opportunity to respond

58. As noted earlier, ground 5 includes a particular complaint that the judge was wrong or unjust to make findings on reasonable practicability in the light of the points made earlier about lack of notice and lack of adequate opportunity to respond. As pleaded, ground 5 focused what the judge said in paragraph 24 of the judgment. In oral argument Mr Roberts acknowledged that singling out paragraph 24 may have been inappropriate, as that paragraph was concerned with the common law negligence claim, but said that the point applied equally to what had been said in paragraphs 44 to 50 of the judgment.
59. Whether this point is sound or not depends upon the answer to the questions identified in the concluding paragraphs of section C2 above. I take them in turn.
60. The first question is whether the judge was entitled to conclude that proceeding to hold that there was a defence of reasonable practicability in the way that she did involved no prejudice to Mr Burrows. In the light of my analysis of her reasoning I conclude that she was indeed entitled to reach that conclusion. Her reasoning was that the alleged possibilities were pointless. Indeed for the reasons noted in section C3.2 above, as a matter of common sense they would have increased, not decreased, the potential for exposure of Northumbrian Water's employees to the hazards of ice. Thus there appears to me to be no scope for any complaint that the judge's approach involved injustice to Mr Burrows: the judge's decision, insofar as it was adverse to him on this point, was that the reasoning behind the alleged possibilities was flawed. Mr Roberts was fully equipped to argue to the contrary before the judge, just as much as he was fully equipped to do so before me. Subject only to the points raised in the second question, the judge's decision to approach the matter in the way that she did caused no prejudice to Mr Burrows.
61. The second question concerns whether there is merit in (a) the complaint that evidence on reasonable practicability given in re-examination by Mr Bates should not have been allowed, and (b) the complaint that the judge's approach deprived Mr Burrows of the opportunity to adduce evidence, for example from Mr Donald. As to (a), the evidence in re-examination formed no part of the judge's reasoning. That is a complete answer to this point. Turning to (b), I cannot see that evidence from Mr Donald or anyone else could have answered the flaws in Mr Burrows's case as identified by the judge. The flaws were flaws in the reasoning underlying the alternative possibilities. For the reasons given above I consider them to be obvious and irremediable.
62. In these circumstances the complaints in grounds 1 to 3, as well as those in grounds 4 and 5, are not established.

C4. Reasonable practicability: alleged errors of law

63. Grounds 6 and 7 both complain of a passage in paragraph 23 of the judgment shortly after the judge's inference that the patch of ice on which Mr Burrows slipped may have been relatively small (see section B above). What the judge said in relation to the inference and subsequently is set out below, with the passage complained of in italics:

The patch of ice may indeed have been relatively small given the fact that he [Mr Burrows] seemed likely to have crossed the same area on at least two occasions and did not fall. It cannot be concluded therefore in my judgment that this area was obviously dangerous.

64. Ground 6 says that if it was on the basis of the passage I have italicised that the judge concluded that Northumbrian Water had made good its reasonable practicability defence, then this was "wrong and/or unjust". The short answer to this ground is that, as can be seen from section C3.2 above, the premise of ground 6 is not satisfied. The judge's finding that Northumbrian Water had made good its reasonable practicability defence was not on the basis of this passage.
65. Ground 7 says that if on the basis of the passage I have italicised the judge concluded that "there was simply no breach of regulation 12(3)", then this was "wrong and/or unjust". It seems to be suggested that the judge may have found in favour of Northumbrian Water under regulation 12(3) without needing to consider the reasonable practicability defence. Such a finding could, I suppose, have arisen if the judge had concluded that the access road was not a traffic route in a workplace, or that if it was then nevertheless the ice was not a substance which may cause a person to slip or fall. It would be surprising if she had done this, as any such finding would have been contrary to the agreed position as recorded in the document prepared at my request. I can find nothing in the judgment to support the notion that the judge made any finding of this kind. Nor is there anything in the judgment to suggest that if she did make such a finding then it was on the basis of the italicised passage.
66. Ground 8 complains that the judge failed to direct herself that it was for Northumbrian Water to plead and prove the defence that it was not reasonably practicable to ensure "compliance with its duties under regulation 12(3)". I take the quoted words to mean "that the access road was kept free from ice".
67. I have dealt in section C2 above with the question as to what Northumbrian Water had to plead. Turning to the burden of proof, as noted in section C1 above it is common ground that Northumbrian Water bore the burden of establishing the reasonable practicability defence. Regrettably the judge made no mention of this in her judgment. She needed to do so because in paragraph 4 she had made an observation that the burden of establishing liability rested on Mr Burrows, and that observation needed qualification in relation to liability under regulation 12(3).
68. This omission, however, is immaterial. As is plain from section C3.2 above, the judge's findings relevant to reasonable practicability did not turn on the burden of proof. She had no doubt whatever that the reasonable practicability defence was made good.

D. Regulation 5(1)

69. Regulation 5(1) states:

(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.

70. Ground 9 asserts that Mr Burrows's claim under regulation 5(1) is not addressed at all in the judgment. It is undoubtedly correct to say that the judgment deals with the Workplace Regulations generally, and that it does not specifically address regulation 5(1). I indicated in section A2 above that this may be attributable to the lack of an agreed list of issues. For reasons given below the omission to address regulation 5(1) specifically may also have arisen because the parties were agreed that the word "efficient" in regulation 5(1) means "efficient from the viewpoint of health, safety and welfare (not productivity or economy)": see Coates v Jaguar Cars Ltd [2004] EWCA Civ 337.
71. Northumbrian Water's written submissions, dated 22 July 2013, said in paragraph 4.1:

4.1 … the Defendant understands that it is accepted that this would be a case which would fall to be considered under reg 12(3) and not reg 5(1), not least because it is understood that (i) where another regulation has application, reg 5(1) will not apply; and (ii) in any event, regulation 5(1) does not assist the Claimant because reg 5(1) is aimed at the fabric of the workplace (which in this case would be the road itself) and not something which lies on top of it – in this case snow/ice.

72. However the written submissions on behalf of Mr Burrows, also dated 22 July 2013, expressly relied on regulation 5(1). In that regard paragraph 20 submitted that Northumbrian Water was in breach of regulation 5(1) because it failed:

… to ensure that the access road … was maintained in an efficient state and in efficient working order, in that there was a large and dangerous icy patch at the entrance, and no or no proper steps had been taken to apply salt or grit to it, or remove it or break it up.

73. At the hearing of the appeal Mr Broome submitted that the regulation 5(1) claim was bound to fail. In that regard he rightly did not suggest that the material before me was adequate to enable consideration of the proposition that where another regulation has application, regulation 5(1) will not apply. Instead he submitted that I should decide in Northumbrian Water's favour the question identified in the document produced at my request, namely whether regulation 5(1) applied "to a case of snow and ice on the ground due to its transitory quality".
74. Anticipating this submission Mr Roberts had himself made submissions that I should decide this question in favour of Mr Burrows. He relied upon:

(1) a proposition that transient, non-structural dangers will engage the strict duty under regulation 5(1) if they are present sufficiently frequently;

(2) a report referring to snow having been present on the access road the previous day and re-frozen overnight;

(3) the location of the access road being such as to cause a recurrent problem in the sense that it retained snow and ice far longer than the surrounding land and the roads nearby;

(4) the presence of ice and snow, rendering the access road slippery and dangerous, just at the point where staff going into and leaving the reservoir would have to stop in order to open and close the padlocked gate.

75. Neither side suggested that I should remit the matter for determination by the court below. For my part, I consider that I can decide the point myself. For that purpose I will assume that Mr Roberts's four propositions are correct. I stress that I should not be taken as accepting them otherwise than for the limited purpose of resolving this aspect of the present appeal. Among other reservations, it seems to me questionable whether the judge made findings which support the assertions of fact made in these propositions.
76. Even assuming Mr Roberts's four propositions to be correct, it does not seem to me that it would be right to treat the relevant "workplace" for present purposes as anything other than the access road itself. There is no evidence to warrant a conclusion that the "workplace" involved a road on which snow and ice were a regular feature as opposed to an occasional hazard. That road must be maintained in an efficient state, in efficient working order, and in good repair. It does not seem to me that the presence of ice and snow, even to the extent suggested in Mr Roberts's propositions, demonstrates a failure of maintenance of the kind contemplated by regulation 5(1). Maintenance involves cleaning, but only "as appropriate". In the context of a relatively remote unmanned location it is my view that a tendency to retain snow and ice longer than surrounding fields, and the presence of snow on the previous day which has re-frozen overnight, leading to snow and ice being present in the area around the gate, are insufficient to show a lack of maintenance.
77. I would add, although it is unnecessary to my decision, that the parties' agreement that "efficient" in regulation 5(1) means "efficient from the viewpoint of health, safety and welfare" to my mind inevitably leads to the conclusion that the claim under regulation 5(1) must fail. The reason is that, for the reasons given by the judge and discussed in section C2 above, the steps necessary to keep the access road free of ice and snow would result in no safety gain. Indeed they would increase rather than decrease the likelihood of employees being exposed to the hazards of snow and ice.
78. I noted in section A2 above that the judgment below discussed the Workplace Regulations generally, and did not expressly refer to the particular regulations relied upon. It is at least possible that in taking this course the judge assumed that it would, for the reasons I have given in the preceding paragraph, be apparent that her reasoning was a complete answer not only to the regulation 12(3) claim but to the regulation 5(1) claim as well. Be that as it may, even putting the point in the previous paragraph on one side, and assuming the correctness of Mr Robert's four propositions, the claim under regulation 5(1) was in my view bound to fail. It follows that ground 9 of appeal cannot succeed.

E. Conclusion

79. For these reasons this appeal must be dismissed.