Case No: B3/2009/0991

Neutral Citation Number: [2009] EWCA Civ 1581
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DONCASTER COUNTY COURT
(HIS HONOUR JUDGE BULLIMORE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 17th December 2009

Before:

VICE PRESIDENT OF THE COURT OF APPEAL
(LORD JUSTICE WALLER)
and
LORD JUSTICE SEDLEY

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Between:

	Andrew Robert Taylor	
Appellant	
	- and -		
	
Wincanton Group Limited	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
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Mr James Murphy (instructed DLA Piper UK LLP) appeared on behalf of the Appellant.
Mr Anthony James O’Toole (instructed by Oliver and Co) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sedley:

1.	Regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992 provides: 

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

It goes on: 

“2. Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -- 
the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety…”

2.	By regulation 2 “traffic route” includes stairs and doorways.  There is no question that the regulation applied to the place where the accident which I am about to describe happened; the question is whether it was breached.  

3.	Mr Taylor, who was 36 at the time of this accident, worked as a team manager at a depot occupied by the defendants near Doncaster for the purposes of what would once have been called haulage, but is now called logistics.  

4.	On 7 June 2006 Mr Taylor, not as a requirement but in order to be helpful, was carrying two quite bulky boxes of A4 paper into a portacabin which served as the warehouse office.  The portacabin stood on its own integral frame, a frame of (as far as one can see) angle iron.  While propped away from the ground as the frame required, it was so propped at the lowest available level.  This created a gap measured at 6.5 centimetres between the outer floor (that is the warehouse floor) and the body of the portacabin; but, more significantly for present purposes, the effect of the structure was such that there was a distance of 20 centimetres -- that is 8 inches -- from the outside floor or the ground outside to the top of the lip which the steel frame created as the threshold of the doorway.

5.	Mr Taylor found that he could not walk through the doorway without adjusting the load he was carrying, and so brought the two boxes round in front of him to enable him to get through the doorway.  By so doing, he virtually obscured his view of what was directly in front of his feet.  What was directly in front of his feet, because it was structurally part of the portacabin, was the threshold that I have mentioned and below it the gap I have described, which was unblocked and unmarked.  As the judge was to find at trial, it was in this gap that Mr Taylor caught his right foot.  It caused him to fall forward and to suffer an aggravation of an asymptomatic injury which, if the finding of liability that he has secured in his favour survives, will result in a quantification of damages.  

6.	The claim that Mr Taylor consequently made for breach of statutory duty and negligence -- there was no substantive difference between the two claims ‑‑ succeeded at trial before HHJ Bullimore on 6 April 2009 in the Doncaster County Court.  The judge made the following critical findings.  First of all, he accepted Mr Taylor’s account of the accident, namely that he had not simply tripped on the threshold but had got his foot into the gap below it and so had fallen forward; in other words that it was a trapping rather than a tripping accident.  Next the judge asked himself whether, in terms of regulation 12, the traffic route which this doorway constituted or formed part of had been suitable for the purpose for which it was used; and uncontentiously, in order to answer that question, he considered whether it was a foreseeable source of injury.  

7.	He said this in answering the question: 

“13.  I have to say, looking at these photographs, […] I do not think that this was overall of a construction suitable for the purpose for which it was used.  What happened to the claimant, as I find, was something which could have happened to other people very easily.  Mr Murphy [counsel for the defendants] raised the argument with the claimant, ‘Well, if there had been a board there, what you would have done was simply misjudge where your foot was going to go, you would have banged it against the board and that would have pitched you forward, so you were really no worse off.’  I do not think that that is an acceptable argument really.  If that board had been in place before so there was no gap there, then if the claimant had fallen going in one would simply say, ‘You weren’t taking enough care, it was your fault, there was nothing more that the defendants could have done’.

14. As it is, I think there is something they could have done and something which, in my view, they ought to have done before the claimant suffered his accident.  To put the board in place with the warning tape over it was the simplest possible thing to do and in my view it was a pretty obvious thing.”

8.	The board that the judge is referring to there is a board or baton which, following the accident, was put in place in order to stop the gap in which Mr Taylor had trapped his foot.  It was, in the judge’s view, a matter of simple extrapolation (and I do not think open to criticism as a mere application of hindsight) that had the board been there, Mr Taylor could not have trapped his foot.  That, however, is some distance from a finding that there was negligence in not having put the board or baton there sooner.  

9.	Before us Mr Murphy put his argument in this way on behalf of the appellant defendants.  His primary submission is that there was nothing inherently unsafe in the structure, which was a standardised structure, as it was at the time of Mr Taylor’s accident.  The secondary argument is that he was right in the argument quoted and dismissed by the judge, in a passage that I have cited from paragraph 13, that having a board there would not have prevented Mr Taylor from falling because he would have tripped rather than found his foot trapped and gone over as he did in very much the same way.

10.	While it seems to me that there are attractions in that fallback argument, it would require, quite possibly, orthopaedic evidence about mechanisms of injury to demonstrate that the same would have happened even if there had been a tripping rather than trapping hazard there, and I am not sure that without such evidence the argument can be sustained; so the real question is whether this threshold was, in the state it was in, unsuitable.

11.	In this regard Mr Murphy is able to point to the judge’s finding of contributory negligence against Mr Taylor.  The judge went on in his judgment to find that Mr Taylor was 50% responsible for his own injury in, among others, these terms: 

“… Mr Taylor seems to have been aware of this possible danger and he must have been aware of it as he was approaching the doorway.”

12.	The judge went on: 

“As I say, the claimant accepted that he thought there was some danger about this step and I think one has to take that into account in looking at what he did.  But very oddly, being aware in a general way that the step was not quite like other steps, he then managed to approach it in such a way that he made his own problems and the possible danger that much greater. Because, as I have described, he brought the two boxes round in front of him.  I am very certain that in doing that he must have made his own view of this step that he was approaching that much more difficult.  Why he did it I do not know, but he did it.”

13.	That, Mr Murphy submits, is not merely why Mr Taylor rightly lost half his damages; it is why the accident was not the defendants’ fault.  Mr Murphy relies for this purpose in part on the judgment of Waller LJ in the case of Palmer v Marks and Spencer PLC [2001] EWCA Civil 1528.  The hazard over which the claimant tripped in that case was a slightly raised weather strip, of which she knew, in the emergency exit of the defendant’s premises.  At paragraph 15 Waller LJ said: 

“Two points to make on the submissions are that first, of course, a word like ‘maintained’, as Mr Brown submitted, can be tested by whether the end has been achieved, whereas a word like ‘suitability’ seems on it face to involve a qualitative assessment.”

14.	He went on in paragraphs 25-27 to describe how such an exercise should be done, first in general and then on the particular facts of that case.  I will not read them out in full, but they are much cited, and rightly so, in personal injury cases as a guide in this class of case. 

15.	The critique Mr Murphy makes of the judgment is that the qualitative assessment spoken of in Palmer was simply not made by HHJ Bullimore in the present case.  

16.	Some of Mr Murphy’s argument is derived from an analysis of the cross-examination both of the claimant and of the defendant’s witness, Mr Winstanley.  But in the end it seems to me that that cross-examination demonstrates no more (as is often the case) than each side trying out on the witnesses the arguments which have ultimately to be decided by the judge.

17.	The overall critique that Mr Murphy makes can be best seen in the conclusion of his skeleton argument, which is that, properly analysed, the evidence showed, and the judge should have found, the following: a) the risk was slight; b) the risk was not of serious injury; c) the nature of the risk lay in its position under the cabin which normally a person would step over; d) the gap was present due to the cabin’s design -- such a gap is present under all such cabins when set at this height; e) the respondent was intending to step over the step and gap; f) the gap and step were obvious and apparent; g) the respondent knew the step was present; h) there had been no complaints about the step or gap; i) the respondent had stepped into this cabin on hundreds of previous occasions without mishap; j) the door to the cabin was frequently used without mishap; k) the respondent’s foot went into the gap simply because he misjudged where the step and gap were.

18.	Many of those contentions seem to me to be debatable, but the last one may very well afford a complete explanation of the accident without having to infer negligent design or construction.  The question then comes back to the one I have indicated: was there nevertheless, and in spite of the claimant’s own misjudgement, an unsuitable traffic route such as presented a foreseeable risk of becoming trapped?  As to that, Mr O’Toole for the claimant not only relies on the passages I have mentioned in Palmer but on what Waller LJ said in that case in paragraphs 17 and 19: that regulations 12.1 and 12.2 needed to be read and applied together so as to ask: has the floor been constructed in such a way as to expose any person to a risk to his health and safety, and was the unevenness of the floor, in that case, such as to expose any person to such a risk?

19.	Mr O’Toole also relies on the decision of this court in Allison v London Underground Ltd [2008] EWCA Civ 71, in particular paragraphs 57-58, where Smith LJ points to the importance of risk assessments not as necessarily furnishing a separate cause of action but as demonstrating, by reference to what has become known when a risk assessment is carried out, what should have been known had a risk assessment been previously carried out.  It is Mr O’Toole’s submission that a proper risk assessment would have identified this gap as a trapping hazard, and, if that was so then there was indeed a failure by that very token to provide a suitable traffic route and to maintain it.  

20.	Mr O’Toole also submits that the gap was not the sole risk.  The threshold itself needed highlighting, as the photograph showed it subsequently was highlighted, by a yellow and black striped strip so as to avoid risk not only from tripping on the part above the gap but getting one’s foot into the gap itself.  

21.	Everything therefore comes back to the presence of the gap and whether it rendered the traffic route unsuitable.  Mr Murphy in reply made the telling point that this is a critique which, if it is right, applies to every open step; for example, the kinds of step which you find on fire escapes and in a variety of other places.  You can always get a foot under such a step, and much must therefore depend on the location and purpose and use of the step in question. Here the location, purpose and use were in a standard portacabin designed for entry and exit regularly by employees, many of whom might be in a hurry and some of whom might not be looking where they were going.  As is axiomatic, one of the purposes of health and safety regulation is to protect employees from the consequences of their own inadvertence.  But, against that, one has to consider the relative normality of the structure that we are concerned with and the fact that, while one could envisage the possibility of an employee tripping on the edge of the threshold and being told: “You could see it, but it is your own fault if you didn’t”, one is looking here at a foot which went right underneath the threshold itself and got into a gap below it.  The question is whether the judge was entitled to find that that was unsuitable for its purpose on the evidence before him.

22.	His reasoning, in what was an extempore judgment, is slender on that key question, and I find myself having to stand back and answer the question for myself.  Doing so, it appears to me that it is not possible to say that this was an unsuitable part of a traffic route.  It was a thoroughly unfortunate accident, and to say that Mr Taylor was to blame for it may very well be in many senses too harsh.  What Mr Taylor was attempting to do was explain how the accident came about, but it does not, either by itself or in conjunction with any of the other evidence, throw blame onto the defendants (the appellants before us) for the presence of the gap in which, by pure misfortune, Mr Taylor caught his foot.  

23.	I would allow this appeal.

Lord Justice Waller:  
24.	I would also allow this appeal. If one follows what I said in the Marks and Spencer case, as to the form of the question that I indicated in that case was appropriate, it seems to me that the correct question to pose, so far as regulation 12.1 is concerned, is whether, without the benefit of hindsight, an employer would have recognised that the gap under the entrance into this portacabin exposed employees to a risk for their health and safety thus rendering that entrance unsuitable.  I am happy to accept, as Mr O’Toole suggested, that in posing that question one may be doing very much the same as making a risk assessment as indicated by Smith LJ in the Allison case to which my Lord has referred.

25.	When one reads paragraph 13 and onwards of the judge’s judgment, it does not seem to me that he applied that test; and it seems to me that if one poses the correct question, the answer is that an employer would not have recognised such a risk simply from the fact that there was this gap below the threshold at the entrance into this portacabin.  I have to say I am much influenced in reaching that conclusion by the fact that, if the answer were otherwise, it would seem to be unacceptable to have a gap under any threshold, never mind of a portacabin but under any step, and that is in my view not an acceptable conclusion.

26.	So for these reasons and those given by my Lord, I agree that this appeal ought to be allowed.

Order:  Appeal allowed