Neutral Citation Number: [2014] EWCA Civ 258

Case No: B3/2012/3317
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Manchester County Court
His Honour Judge Armitage QC
Claim No. 0IR00128
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 12th March 2014
Before :

Lord Justice Moore-Bick
Lord Justice Tomlinson
Sir Robin Jacob
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Between :

	Gary Bryan Johnson	Appellant	
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	Warburtons Limited	Respondent	

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(Transcript of the Handed Down Judgment of
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Zoe Thompson (instructed by Towns Needham) for the Appellant
Sarah Pritchard (instructed by Berrymans Lace Mawer) for the Respondent

Hearing date: 28th January 2014

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Judgment
Sir Robin Jacob :  
1.	This is an appeal by permission of Sir Richard Buxton from a judgment of His Honour Judge Armitage QC given on 27th November 2012.  He dismissed the appellant’s claim for personal injuries suffered whilst working as a heavy goods driver for the well-known bakers, Warburtons.   The claim is essentially based on common law negligence, namely breach of the employer’s duty to take reasonable care for the safety of its employees.  As formulated the claim was also in breach of statutory duty, but it was not suggested this added anything.
2.	The claimant’s injuries happened in the following circumstances.  By the date of the accident, the claimant, in his forties at the time, had been working for the defendants for some 4 years.   He normally drove a large articulated lorry, but on the morning of 14th November 2007 he was driving a rigid lorry of the kind generally used for delivery to retailers.    He had seldom driven this kind of lorry.
3.	As he was driving along the M57 motorway he heard a noise in the back and realised that something in the load had toppled over.   Concerned about the safety of that he decided to pull over onto the hard shoulder so that he could get out to check and fix the problem.   
4.	Having stopped, he got out of the cab and went to enter the back of the lorry.  There were three doors to the back, one at the rear (with a platform that can be lowered) and one at each side near the back.   The claimant sensibly decided to use the side door on the near-side of the lorry because that was more remote from the traffic.   
5.	When you open the side door you are confronted by two steps inside the lorry coming down from the floor.   The top step has a hinged flap (the judge called it a “floor piece”) over it.  When down it is flush with the floor and covers the step – a sort of trap door.  If you are going to enter by these stairs you raise the flap towards the rear of the lorry (the hinge is on the side of the step) and fix it vertically by means of a catch.  The top part of the flap can then be used as a handhold, though it is not obviously constructed for that purpose.  It is unlike a purpose built hand “grab-point” such as those fitted for climbing into and out of the driver’s cab.
6.	I must say a little more about the nature of the steps, borrowing the Judge’s language:
The height from ground level to the first step inside the vehicle is 19½ inches, with the first step up 13 inches with a 10-inch gang [misprinted as “going”] i.e. 10” from front to back) and the second step up 13 inches with a 10¼ “gang.”
So the steps were uneven vertically, 19½”, 13” and 13”.  And they were quite steep.  On the other hand they were reasonably deep horizontally– you could easily put most of your foot (save perhaps the toes) on them.   
7.	The claimant duly opened the side door, raised the flap (to his right since he was using the near-side side door) as he was climbing in.  Internal lights came on automatically – there is no question of a cause of the accident being poor lighting.  He fixed the flap in its vertical position, went into the lorry and dealt with the load problem.   
8.	It was on coming out that the accident happened.  The claimant came down forwards (as one normally descends stairs).  He did not hold on to the flap (available to his left) as he might have done.   His foot slipped off the second stair as he came down and he fell.  The lorry was near an embankment.  His foot fell into a gulley (injuring it).  He then fell over a low barrier and down about 15 feet through brambles.  It must have been both alarming and frightening.  Fortunately (he must be a tough man), although his ankle was broken, he was able to climb up, close the door and drive back to his depot.   
9.	He was off work for three months.  Because the prognosis of his injury remained uncertain, the trial was confined to issues of negligence/breach of duty and causation.
10.	The Judge held there was no liability.   It was common ground that for an appeal to succeed on this sort of question, it must be shown that the judgment was “perverse”, which in this context has the special lawyers’ meaning of one which no reasonable judge could reach on the evidence.
11.	Mrs Thompson for the claimant put his case two ways.  In logical order they are:
a)	that the steps, without any purpose-built handrail, were themselves unsuitable and posed an inherent risk of injury – they were not a safe system of work;
b)	that, if that be wrong, they were so unsafe that drivers should have been trained in their use, told that the flap could be used as handhold and that it should be used.
12.	I turn to the first point.  The Judge found that Warburtons’ regular delivery drivers use the side doors about 15 times a day.   There are 760 such lorries in the fleet and they have been used for about 20 years.   In all that time no accident by way of falling had ever happened.   Nor was there any evidence that any driver had ever expressed concern about the safety of these steps.
13.	There was evidence that a Mr Sutcliffe, appointed in 2007 as Group Transport Manager, had gone out with a delivery driver for a day and found that going up and down the side stairs repeatedly had hurt his knees.  He recommended a change from two to three steps.  That was done for future lorries, though none of the existing fleet was modified. Mrs Thompson submitted that this was evidence of inherent danger.  I do not accept that.  Mr Sutcliffe (a very large man) was not a regular user of the steps.  It was not proved that he thought the steps were inherently dangerous –merely that he thought three steps would be more comfortable to use.
14.	There was also evidence that the Health and Safety Executive positively approved these steps.  They had been introduced by Warburtons because delivery drivers were found to be jumping on and off partially deployed tail lifts.  Giving them the side door and steps made things safer.  A September 2007 HSE information sheet described this change under the heading “making it safe and easy.”    So the Judge had evidence that the steps in question had been seen by the HSE who had thought they were a good thing.
15.	Mrs Thompson submitted that the amount of usage without trouble over the years was irrelevant because it essentially related only to delivery drivers.  They would be familiar with the steps and the need to take particular care when coming down them   By contrast the claimant was a first time user of these steps and for him they were inherently dangerous.
16.	Was the evidence such that the Judge should have held that the steps were inherently dangerous, or more precisely, that that is the only finding he could make without being perverse?   I think clearly not.    I have already indicated why Mr Sutcliffe’s evidence does not support a finding of inherent danger.  As regards the first-time user point, even delivery drivers are first time users at the beginning.   And I really see no answer to the fact that the HSE actually chose to exemplify these steps as examples of good practice.   I reject Mrs Thompson’s submission that the HSE were really only concerned with the addition of the side doors and steps and not with the actual design of those steps – the HSE had the very steps alleged to be inherently dangerous before their very eyes.
17.	Mrs Thompson’s main focus was on her second point.  This was that that the construction of the steps was such that a potential user (especially a first time user) ought to have been warned of the danger of falling, advised to take special care and to make use of the flap as a hand-hold.   She emphasised that there never was a risk assessment prior to the accident.   After it, in October 2008 a salesman’s working guide was published (though never given to the claimant) and this was evidence of the sort of training which should have been given to the claimant.
18.	The Judge quoted the guide at [61].  The key language reads:
5.	When exiting the back of the vehicle through the side door, a suitable handhold is available by means of the top edge of the stair/flap.  If the flap is to be used as a handhold, it is important that it is secured in an upright position.
19.	There is no advice about climbing down backwards, though there is about doing so from a cab.  And in the end it was not suggested that there should have been a warning to climb down backwards, as if on a ladder.
20.	I do not see how the Guide helps.  The advice is not that the handhold must be used to be safe – it is that if it is to be used, first make sure it is properly fixed.  The authors of this document clearly regarded the handhold as optional – and did not regard just walking down the stairs without holding on as dangerous.   To my mind the Judge was quite right in saying “The reality is there is no useful advice other than that someone might touch or grasp briefly the top of the raised flap in order to descend.”   That is a conclusion he was entitled to reach.
21.	Mrs Thompson took us to the pleadings.   The Particulars of Claim alleged, inter alia and correctly as it turned out, that the claimant had received no training about the stairs.  The Defence gave particulars of the denial of negligence or breach of statutory duty.  These alleged:
The steps were not slippery [found to be the case contrary to an allegation in the Particulars of Claim] and the Claimant was provided with a safe system of work and fully trained in the same.   The footplate [i.e. the flap] provided an appropriate point of contact for the descent and the number of steps fitted to the vehicle was causally irrelevant to the accident as the sole cause of the same was the Claimant’s failure to adopt the safe system of work provided to and usually employed by him.
22.	Mrs Thompson said there were two things wrong with that – the claimant had never been trained, still less fully trained and far from the system of work being “usually employed” by him he was a first time user.  She submitted that by this pleading the defendants had confined the issues to “was he trained?” and “did he usually employ a safe system?”    In essence as I understood her, it was not thereafter open to the defendants to say “the system was safe and no training was needed because the need to take care descending these rather steep steps was obvious.”
23.	I do not accept that submission.  It was for the claimant to make out a case of negligence or breach of statutory duty – the fact that the defendant had pleaded some positive matters in support of its general denial of negligence, matters which were not made out, does not absolve the claimant from making out a case.  
24.	The Judge accepted the submission that no training was needed because the need to take care was obvious.    The Judge thought it was largely a matter of common sense.   He said that the task of negotiating the steps task “although not entirely simple, was simple enough, and that no training was needed.”  He added that it was unlikely that anybody trains their employees to go up and down staircases.
25.	I cannot see that such a conclusion was perverse.  The Judge clearly had a good grasp of the nature of these steps, and what would be involved in going up or down.  It was open to him to say no training was needed and that no risk assessment was necessary.
26.	Accordingly I would dismiss this appeal.
Lord Justice Tomlinson :
27.	I agree.
Lord Justice Moore-Bick :
28.	I also agree.