Neutral Citation Number: [2009] EWCA Civ 11
Case No: B3/2008/1215 & B3/2008/1215(A)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
His Honour Judge Charles Harris QC
Claim No. 6AF03562
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/01/2009
Before :

LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE AIKENS
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Between :

	Ferdinand Ammah	Appellant	
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	Kuehne+Nagal Logistics Limited	Respondent	
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(Transcript of the Handed Down Judgment of
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Brian D Cummins (instructed by Bakers) for the Appellant
Muhammed Haque (instructed by Berrymans Lace Mawer) for the Respondent

Hearing dates : 10 December 2008
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Judgment
Lord Justice Richards : 
1.	This is an appeal against an order of HHJ Charles Harris QC in the Oxford County Court dismissing the appellant’s claim for damages for breach of the employer’s duty of care to ensure a safe system of work.  The judge heard the evidence and submissions in the course of a single day and gave an ex tempore judgment.
2.	The appellant was employed by the respondent at its premises in Milton Keynes.  He worked at first in the retail department but moved in May 2003 to the despatch department, where it was his job to get items off the shelves.  Most of the shelves were at the “A” level, up to approximately 6 feet in height, with the result that items on them could be reached without difficulty.  The next level up was the “B” level, and there were also items stored higher still at the “C” level.  
3.	On 11 November 2003 the appellant was required to collect a pamphlet from a box on a B level shelf, just out of his reach.  He jumped up to try to reach it, but without success.  He then noticed a plastic box on the ground adjacent to where he was.  The box, referred to as a tote box, measured about 2 feet long by 18 inches wide and a foot or so deep.  It had a ridged underside.  The appellant turned it upside down and stood on it to gain access to the upper shelf.  He was reaching for the pamphlet when the box moved under him and he fell, breaking his ankle.
4.	His particulars of claim contained various allegations of negligence and breach of statutory duty, but the gist of the matter as summarised by the judge was a contention that the respondent should have told him not to use boxes in this way.
5.	The respondent admitted that the use of the box was unsafe but said that the appellant had failed to follow available and approved methods of accessing upper shelves and that he was the author of his own misfortune.
6.	It is apparent from his judgment and the transcript of the argument that the judge was inclined personally to the view that the box was safe to stand on if reasonable care was used in the process.  But he acknowledged the defence admission that it was unsafe.
7.	The judge considered whether the appellant had been given any instructions in relation to the use of boxes.  He referred to a lengthy employee handbook given to the appellant when he was first employed by the respondent.  Section 8 of that document included a sub-section on “safe working practices” which stated:  “You have a responsibility to maintain a healthy and safe working environment, so use your common sense and follow these rules …”.  There was then a list of “Do’s” and “Do Not’s”, including “Do ensure that all access equipment, ladders and towers are safe and used in a correct manner” and “Do not use equipment for anything other than its intended use”.  That instruction was in very general terms, but the judge evidently had in mind that the intended use of the box was for carrying and storing things in, not for standing on.  He summarised the effect of the appellant’s evidence on the point in this way:
“The claimant said that he knew that it was not the proper use of a box of this kind to be used as a step, but nonetheless he did it because he said it had been done frequently and by employees in a different department, and he did not really see anything inappropriate about using it in this department.”
8.	It was in the course of his evidence in chief that the appellant said that in the retail department, where he had been employed before his move to the despatch department, it had been common practice to use a box to stand on when the need arose.  When cross-examined about this he said that he had heard a manager by the name of Mr Henman in the retail department give a direct instruction to another employee to stand on a box.  Cross-examination on the issue was then effectively cut off by the judge.  That is understandable, given that it was no part of the appellant’s pleaded case that there had been a practice of that kind or that any such instruction had been issued by a manager while the appellant worked in the retail department; and no evidence had been directed to those matters by either side.  The first time it was raised was in the appellant’s oral evidence at the trial.   
9.	In this court the respondent lodged an application to adduce fresh evidence to challenge what the appellant said at trial about the use of boxes in the retail department and the instruction given by Mr Henman.  It seems, however, that the application was directed to the issue of relief should the appeal succeed (in that the respondent would then be seeking a re-trial) rather than to the substance of the appeal itself, and the application was not pursued by Mr Haque for the respondent at the hearing before us.  In any event I regard what happened in the retail department as being of little or no relevance, and I take the view that the judge was right to cut short cross-examination on the issue.  The relevant issue, on the basis of the pleadings and the witness statements exchanged before trial, concerned events in the despatch department, where the appellant had been working for about six months before the accident occurred.
10.	As to that, the appellant did not say that the use of boxes to stand on was a common practice in the despatch department.  His evidence was that they were used there “once in a while”, “maybe less than once a month”.  On the other hand, another employee, Mr Tackie, gave evidence that it was a common practice in the despatch department to stand on boxes to reach items on the higher shelves.  That has to be contrasted with the evidence of Mr Singh, the claimant’s supervisor in the despatch department, who said in his evidence in chief that he had never seen anyone standing on a tote box.  Cross-examined on the basis that it did occasionally happen, he was a little more equivocal, saying “I don’t know” and “I don’t recall”.  But the judge found that on the evidence of Mr Singh, which he accepted, the use of a box to stand on was “very rare”.  Although he is criticised for not referring in his judgment to the evidence of Mr Tackie, it seems to me that the judge must have had that evidence in mind but that he preferred the evidence of Mr Singh.  His finding was properly open to him.
11.	There was also a dispute of fact as to whether the appellant had been given a specific instruction in the despatch department not to stand on boxes.  It was the appellant’s case that such an instruction or warning should have been given because standing on boxes had been identified by the respondent as a specific risk.  The judge did not deal with these matters.  I will need to come back to them after considering the rest of his judgment.
12.	Having considered the general instruction not to use equipment for anything other than its intended use, and what the appellant had said about the use of boxes to stand on, the judge turned to the other ways in which the appellant could have reached the shelf.  One approved method of access to the higher shelves was a device called a “man-riser”, which the judge described as some sort of forklift truck with a platform on it, operated by a qualified driver.  The judge accepted the evidence of Mr Singh that there were two man-risers in the department.  He also referred to the possibility of using an ordinary forklift truck if one happened to be handy. Another approved method of access was a set of portable steps, described as a flight of vestigial stairs with a handrail, mounted on wheels, which one could trundle about.  The appellant and Mr Tackie denied that a set of steps was available.  Mr Singh gave evidence that there were two sets of steps in the department, which had been brought over from other premises in 2001 or 2002, though he could not be absolutely certain that one was available at the time of the accident since that took place shortly before he came on duty.  The judge, whilst not making as clear a finding as he might have done (and again not mentioning the evidence of Mr Tackie), referred to Mr Singh’s evidence as credible and appears to have accepted, as again it was open to him to do, that there were indeed portable steps on the premises.    
13.	The judge then commented on the appellant’s decision to stand on the box rather than using one of the approved methods of access to the upper shelves:
“But the claimant on this occasion, having jumped up once or twice, did not see fit to go and see if he could get himself a man riser, and did not apparently go to look for a set of stairs, but simply stepped, understandably enough, on the top of the box.  Is that to be said to be the defendant’s fault?  The only way it can really be put is that he had not received an explicit instruction recently, since he had come out of the other department, not to stand on boxes.”
14.	The end of that passage touches on the important point I have already mentioned, as to whether a specific instruction was given to the appellant not to stand on boxes.  Having raised it in this way, however, the judge moved on.  He said that whether such an instruction was needed depended on whether it was in fact an unsafe thing to do and whether the appellant would have accepted the instruction anyway, on which there was no evidence.  He then referred again to the general instructions contained in the employee handbook, before proceeding as follows:
“11.  So what was in his mind when he got onto the box?  He thought, he said, that it was a perfectly safe thing to do.  I think it would have been if he had done it with reasonable care.  But then again he said very shortly afterwards in his evidence, ‘It was an obvious risk, and I would warn a child about standing on a box myself if I had seen one about to do so.  I never thought anything would happen to me at the time.’
12.  So how is this case to be analysed?  The defendants admit that to use the box was unsafe.  It seems that it was allowed in another department, though forbidden in the contract of employment, and, at any rate on the evidence of Mr Singh, which I accept, very rare in the department in which he was working.  The claimant himself said that if he could not reach then he would ask for a man riser, and that he was told to ask for a man riser, but he decided not to  I think he felt it was quicker not to.  He did what he did thinking it was safe.  If he was right about that, as I think he would have been if he had said to himself, ‘If I do this carefully am I going to be safe?’ then it is not the defendants’ fault that he fell off.  Or he did so thinking that it was unsafe.  If he thought that it was unsafe, then it was clearly a silly thing to do, especially for a man of his large size and weight.  He must have stepped up or adjusted his weight on it in such a way as to have caused it to move.  
13.  I am afraid that, having every sympathy with the claimant, who seemed to me to be a pleasant witness, I do regard this accident as wholly his own fault either in failing to do something which could safely be done with reasonable care, or in doing something that he knew to be unsafe and falling while doing it.  One cannot expect employers to invigilate employees the whole time and be watching them in order to ensure that they do not stand on a one-foot box of this kind.  Given the evidence that has been represented on the defendants’ behalf, it seems that this was quite a conscientious defendant which set about training its staff properly, which set about going through all the hoops of risk analysis which these days employers have to do, and which was telling its employees, in effect, not to use for improper purposes items provided for something else.  Suitable equipment was available.
14.  So although, as I have said, I have sympathy with the claimant because he has had a nasty accident, it was just that, an accident, and I do not find that it was caused by any breach of duty in negligence, or other breach of duty on the part of the defendants.”
15.	Mr Cummins, for the appellant, made various criticisms of the judge’s approach.  He submitted with some justification that, in the light of the respondent’s admission that it was unsafe to stand on the box, the judge was wrong to allow the view that the box could safely be stood upon to play any part in the analysis.  As to the alternative limb of the judge’s analysis, that if the appellant thought it was unsafe to stand on the box it was a silly thing to do, he pointed out that the appellant’s evidence was that he thought it a safe thing to do at the time even though he accepted with hindsight that it was an obvious risk.  More importantly, he pointed to evidence that the respondent had identified standing on a box as a specific potential risk and he submitted that it was the respondent’s duty to warn employees against such a risk, even if obvious, and that on the evidence the respondent had failed to give any such warning.  That takes me to the issues to which I said earlier in this judgment I would need to return.
16.	The evidence was that a “safe working procedure” document had been prepared in the despatch department about six weeks before the appellant’s accident.  For warehouse operatives, in relation to the task of “picking from racking locations”, that document included the following:
“7.  Only pick from ground locations.
8.  If you have to pick from any higher location inform your Coordinator or Supervisor.
9.  If you cannot reach or lift the item required inform your coordinator or supervisor.
10.  Do not stand on any boxes, and or pallets to get at any items required”  (emphasis added).
17.	It was pleaded in the respondent’s defence that the document was produced followed a risk assessment in respect of picking operations, and that the document “specifically informed operatives such as the Claimant not to stand on boxes or pallets to reach items”.  Mr Singh accepted in evidence, however, that the appellant may not have seen the document.  Mr Singh said that the document was created by him and signed off by a senior manager, and that one copy was kept in the office and one in the despatch department.  Thus the document, whilst clearly evidencing the respondent’s awareness of the risk associated with standing on boxes, cannot be relied on as a warning or instruction to employees not to stand on them.
18.	Mr Haque submitted that no warning or instruction was even necessary.  He pointed to Mr Singh’s description of the safe working procedure document as “like an idiot’s guide” and submitted that the risk associated with standing on boxes was a perfectly obvious and ordinary one.  I cannot accept that submission.  That an employer may be under a duty to warn against even an obvious risk is supported by authority.  For example, it was held in General Cleaning Contractors Ltd v Christmas [1953] AC 180 that, in leaving it to individual workmen to take precautions against an obvious danger, the employers had failed to discharge their duty to provide a reasonably safe system of work.  As Lord Oaksey put it at pp.189-190:
“In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen.  It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve.  It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work.  Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves.  Workmen are not in the position of employers.  Their duties are not performed in the calm atmosphere of a board room with the advice of experts.  They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition. 
The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain.  If the possibility is faced the risk is obvious.  If both sashes are closed there is no longer the handhold by which the workman steadies himself.  If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe.  But the problem is one for the employer to solve and should not, in my opinion, be left to the workman.  It can be solved by general orders and the provision of appropriate appliances.”
19.	It may be that, as Mr Haque submitted, some dangers are so obvious that no instruction is required; but I do not think that that can be said in relation to the risk in this case.  In my view a warning or instruction was required here, even though, on the judge’s findings, it was very rare, rather than common practice, for an employee to stand on a box.
20.	Was an adequate warning or instruction given?  It is unfortunate that the judge did not address this point and make a specific finding on it:  his reliance on the general instruction not to use equipment for anything other than its intended use was clearly insufficient.  It seems to me, however, that we are in a position to reach our own conclusion on the point.  We have a full transcript of the evidence and, although we do not have the advantage of having observed the witnesses give their evidence, we are able to rely on the judge’s observations on credibility.
21.	The appellant said in evidence that he had not received any induction training in the despatch department and that he had not been told that he should not stand on a box.  On the other hand, he accepted that he had been told that if he could not reach a shelf he should ask for a man-riser.   Mr Tackie likewise said that he had had no induction training and that prior to the appellant’s accident he had not been told not to stand on a box.  He was cross-examined by reference to a “main warehouse training matrix” document which, on the face of it, records him as having had training in despatch, but the nature and reliability of that document are unclear and it does not take matters very much further.  
22.	It was Mr Singh’s evidence, on the other hand, that the appellant’s training had included specific instruction to use a man-riser, portable steps or a fork-lift truck to gain access to the higher shelves and not to stand on a box for the purpose.  In his witness statement he said that he himself provided the appellant with formal induction training when the appellant joined the department.  Later in his witness statement he said:
“20.  When I provided the claimant with his induction training and subsequent on-job training all the correct systems and procedures would have been made known to him.  He would not be in any doubt as to what procedures were in place to assist him when he was confronted with an order that required access from an upper level of the racking where he was unable to reach it from ground level.
21.  These procedures required assistance with the use of either the man riser, forklift truck or stepladders.  Under no circumstances would I ever condone or contemplate a situation whereby an employee uses a tote box to stand on as there is no reason for this.
…
23.  If I had seen the claimant or any other employee standing on a tote box then I would have immediately taken action and possibly considered formal disciplinary action.  Nobody stands on tote boxes under any circumstances.”
23.	In the course of his cross-examination Mr Singh explained that the initial training given to the appellant when he joined the despatch department consisted in walking around with him for possibly an hour to an hour and a half, telling him “how to do the job and how to do the electronic picking, what not to do, how to lift things which are not within his capability”.  He had trained a lot of people and could not specifically recall what he had said to each.  Later in his evidence he was asked about a meeting he had held after the accident, at which he expressly told staff not to stand on boxes.  There was then an exchange as to whether such meetings had also taken place before the accident:
“Q. … Prior to the accident on 11th November 2003 I am putting to you that you had not had a team meeting to explain to staff not to stand on plastic boxes.  Is that correct?
A.  That is incorrect.  There were briefs that were taking place before, and there is a folder in despatch of every brief that is conducted.
Q.  We have seen none of these documents.  They have never been disclosed.  It is a fairly sort of relevant material, I would have thought.  You do not mention that in your statement.
A.  There is a brief folder in the despatch department which should have a copy of all the daily briefs that are done.”
24.	There followed some questions as to why this had not been included in his witness statement, and as to why Mr Singh had been telling staff not to stand on boxes if, as he had said in his witness statement, standing on boxes was not a problem in practice.  But he adhered to his evidence that such briefs were given, stating that “[a] safety brief would be that we would stress to the staff not to stand on pallets, boxes, and use the steps provided”, and that he was telling this to staff “just to reiterate everything”.
25.	This late reference to undisclosed “briefs” was an unsatisfactory feature of the case, and some of Mr Singh’s answers were themselves a little unsatisfactory; but the clear overall effect of his evidence was that staff were instructed that in order to access shelves out of their reach they should use a man-riser, the steps or a forklift truck and they should not stand on a box.  When referring to the evidence about the man-riser, the judge said that Mr Singh seemed to him to be “a reliable witness”; and, as I have said, he accepted Mr Singh’s evidence in preference to that of the appellant and Mr Tackie in relation to the presence of steps on the premises and the frequency with which staff stood on boxes.  I see no reason why, in the circumstances, Mr Singh’s evidence should not also be accepted in relation to the instructions given to staff.  Moreover, that evidence may help to explain why the “safe working procedures” document was not copied to all employees:  if the instructions contained within it were given to staff in any event by Mr Singh in his briefings, the document itself did not need to be given to them.  The evidence also accords with the appellant’s own acceptance that he was told to use a man-riser if he could not reach a shelf.
26.	Accordingly, I reach the same conclusion as the judge, but for rather different reasons.  I am satisfied that the respondent complied with its duty of care to ensure a safe system of work in relation to access to the upper shelves.   Not only was suitable equipment available, but employees were instructed to use that equipment and not to stand on boxes for the purpose.  The risk associated with standing on a box had been identified but had been adequately guarded against by the instruction given.  Employees may occasionally have stood on boxes, but it was not a common practice and it was not condoned.  In standing on a box, the appellant took a risk for which only he, and not his employer, was to blame.  There is no basis for holding the respondent liable for the injury he sustained.
27.	I would therefore dismiss the appeal.
Lord Justice Aikens :
28.	I agree.
Lord Justice Ward :
29.	I also agree.