King v RCO Support Services Ltd & Anor [2000] EWCA Civ 314 (8 December 2000)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WAKEFIELD COUNTY COURT

(His Honour Judge Barr-Young)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 8th December 2000

B e f o r e :LORD JUSTICE HENRY

and

LORD JUSTICE KAY

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LESLIE BRIAN KING Claimant/

Appellant

– and –
RCO SUPPORT SERVICES LIMITED

-and-

YORKSHIRE TRACTION COMPANY LIMITED

First Respondent

Second Respondent

– – – – – – – – – – – – – – – – – – – – -(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Richard Copnall Esq (instructed by Towells for the Appellant)

Andrew Haslam Esq (instructed by Ford & Warren for the First Respondent)

Patrick Limb Esq (instructed by Nabarro Nathanson for the Second Respondent)

– – – – – – – – – – – – – – – – – – – – –

Judgment

As Approved by the Court

Crown Copyright ©

LORD JUSTICE KAY:

1. On 9 December 1999, His Honour Judge Barr-Young in the Wakefield County Court sitting at Pontefract gave judgment against the appellant on his claim against each of the respondents for damages for personal injuries. The trial was on the issue of liability alone. The appellant now appeals with permission against that decision.

2. The facts are straightforward and were not the subject of any controversy at the hearing of the claim. The appellant, who was aged 57, was employed by the first respondents as a steam cleaning operative. The first respondent had contracted to supply cleaning services to the second respondent at one of the second respondent’s yards, where buses were cleaned. The appellant’s place of employment was at that yard.

3. On 25 January 1996, the appellant arrived at work between 7 and 7.15 a.m. and discovered that the yard was covered in ice and was, therefore, slippery. In accordance with normal practice, he set about the task of spreading grit over the surface of the yard. That grit was kept in a pile within the yard and the appellant made use of a sack barrow and a shovel.

4. The yard was a large one and after about two hours he had managed to grit about two thirds of the yard. He then stepped off the gritted area and slipped on the ungritted ice causing himself injury.

5. In his judgment, at page 1 (Bundle page 39), the judge recorded part of the evidence of the appellant in the following terms:

“Quite candidly Mr King says that immediately before he fell over, his feet were positioned on the ice, on an ungritted part of the yard. He was not looking at his feet. He said he slipped and fell on some ice. Up until then he had not fallen over on any of the ice. His fall had nothing to do with anything else, he said. He simply slipped on the ice. As far as he could see there was no means of preventing ice forming on a morning such as that and applying grit was the best method of dealing with that situation.”

6. The appellant’s claim against each respondent was based upon its alleged negligence and breach of statutory duty. The judge rejected the allegation of negligence against each respondent and those parts of his decision are not challenged in this appeal. He also rejected the allegations of breach of statutory duty and it is to those conclusions that this appeal is directed.

7. The appellant’s case as pleaded included allegations that the first respondent, his employer, was in breach of regulation 4(1)(a) the Manual Handling Operations Regulations 1992 (“the Manual Handling Regulations”) and of regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 (“the Workplace Regulations”). In circumstances to which it will be necessary to return later, the appellant’s counsel decided not to pursue the allegation against the first respondent under the Workplace Regulations and so indicated to the judge at the conclusion of his final address.

8. As against the second respondent, the owner of the site, the appellant alleged a breach of the same regulation of the Workplace Regulations, regulation 12(3).

9. The judge, as he had with the allegations of negligence, rejected each of the allegations of breach of statutory duty and it is against these aspects of his decision that this appeal is brought. It is convenient to deal first with the claim against the first respondent under the Manual Handling Regulations.

10. Regulation 4(1) of the Manual Handling Regulations provides:

“Each employer shall –

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured…”

1. 1. Subparagraph (b) of regulation 4(1) then makes provision for the responsibilities of an employer where it is not reasonably practicable to avoid the need referred to in subparagraph (a). In this case, it was not suggested in the pleadings that it was not reasonably practicable to avoid that need and it is common ground between the parties that if such a point is to be taken, it must be pleaded. Hence this court must approach the case on the basis that if this was a manual handling operation within the meaning of the regulations and if the operation involved a risk of injury, then it was reasonably practicable to avoid the manual handling operation.

2. A “manual handling operation” is defined by regulation 2 of the Manual Handling Regulations as “any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force”. Limited guidance is given as to the meaning of a “load” which is said to “include any person and any animal”.

3. The case for the appellant was that the moving from the pile and distribution of the grit about the yard was a manual handling operation within the meaning given by regulation 2 and that it did involve a risk of injury to the appellant.

4. Mr Copnall on behalf of the appellant first points out that the Manual Handling Regulations are intended to implement the Framework Directive (89/391). He contends that the purpose of that Directive, as is apparent from its language, is to impose an absolute duty on employers to ensure the safety of their employees, subject to a member state’s right to exclude liability in certain circumstances.

5. In reliance on Lister v Forth Dry Dock Co. Ltd [1990] 1 AC 546 (and particularly the observations of Lord Oliver at 559 D-E and 576F-577A) the regulations must be construed to give effect to the directive.

6. He contends that the task of moving grit from the pile and distributing it over the yard in the manner that the appellant was required to do it clearly falls within the definition contained in regulation 2 of the Manual Handling Regulations.

7. Mr Copnall argues that “risk” in regulation 4(1) should not be qualified as being either foreseeable risk or reasonably foreseeable risk but that whether it is, or is not, so qualified, there was a clear and obvious risk of slipping on the ice in the operation on which the appellant was engaged.

8. The Manual Handling Regulations make clear that the fact that the operation is being carried out on a slippery surface is a relevant factor to be considered. Where an employer concludes that there is a risk and that it is not reasonably practicable to avoid the manual handling operation, the employer is required to make an assessment of the manual handling operation and is required to consider the factors set out in Schedule 1 of the Regulations, asking the questions set out in the column 2 of the Schedule. These include the question: “Are there … uneven, slippery, or unstable floors?”. Mr Copnall submits that it would be anomalous to construe “risk” in regulation 4(1)(a) to exclude the risk of slipping when the same risk must be considered when making an “assessment under regulation 4(1)(b).

9. On behalf of the first respondent, Mr Haslam submits that the Manual Handling Regulations envisage tasks which directly involve manual handling. The appellant’s task of moving grit from the pile and distributing it over the yard may involve an element of manual handling but this is incidental to his job.

10. In any event Mr Haslam contends that the accident was not caused by reason of any risk of injury arising out of the task but it was caused by the appellant’s own actions in that he slipped and fell because he stood on an area of the yard that he had not yet gritted. Further it was unforeseeable that he would stand on the part he had not yet reached.

11. The judge’s conclusions in this regard are to be found at page 2 of his judgment (page 31 of the bundle). They read:

“In essence the claimant was not engaged in the transporting of or lifting or moving of a load he was distributing grit. The accident itself had nothing to do with his transporting or moving or handling of any load. His accident occurred because he was imprudent and unwise enough to permit himself to stand on the ice rather than the already gritted area, as he was distributing grit.”

12. I am quite unable to accept that this is a proper approach to this question. The appellant was engaged in an operation that involved the moving of a pile, or load, of grit from the place where it was kept so as to distribute it over the yard. That was the task that he was performing and, in my judgment, it did come within the definition of manual handling contained within the regulations. To distribute the grit, and one has to take into account the size of the yard and the time he was engaged on the task, involved moving about an icy yard, there was a clear risk that his foot might go onto a part that was not gritted and if it did there was an obvious risk of injury.

13. It is not necessary for the purpose of this judgment to decide whether “risk” in regulation 4(1)(a) carries with it a necessary implication of forseeability because I am entirely satisfied that whatever definition of risk that one applies, there was a risk here.

14. Since the appellant was being required to carry out a manual handling operation which involved a risk of injury, the first respondents were required to avoid that risk unless it was not reasonably practicable so to do. As already explained the first respondents did not put forward a defence that it was not reasonably practicable, and this court has to assume that it was, presumably by the use of a mechanical gritter.

15. If the first respondent had avoided the manual handling operation, as it was required to do, there would have been no accident. The actions of the appellant, even if negligent about his own safety, do not prevent that failure from being causative of the accident. They go, if they go at all, to the issue of contributory negligence to which I shall return. Accordingly I am satisfied that the judge should have concluded that the liability of the first defendant, subject to contributory negligence was made out.

16. Turning next to the claim that each respondent was liable under the Workplace Regulations, it is necessary first to set out the relevant statutory provisions. Regulation 12(3) of the Workplace Regulations 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. ”

17. The obligation to comply with regulation 12(3) is provide under regulation 4 of the Workplace Regulations, the relevant parts of which provide:

“(1) Every employer shall ensure that every workplace…. which is under his control and where any of his employees works complies with any requirement of these Regulations which –

a) applies to that workplace…; and

b) is in force in respect of the workplace ….

(2) … every person who has, to any extent, control of a workplace … shall ensure that such workplace…. complies with any requirement of these Regulations which –

(a) applies to that workplace….;

(b) is in force in respect of the workplace….; and

(c) relates to matters within that person’s control.”

18. So far as the first respondent is concerned it is very difficult to see what answer it could have to this claim. It was accepted on all sides that it was the first respondent, the appellant’s employer, that had the actual physical control of the gritting operation that was taking place in the second respondent’s yard. However, Mr Copnall specifically abandoned this part of the claim against the first respondent. He explained to us that he did so for tactical reasons because he believed that the appellant’s claim under the Manual Handling Regulations was the stronger of the two against the first respondent.

19. Mr Copnall invited the court to resurrect that part of the claim against the first respondent. He sought to do so on the basis that there was a clear duty on the judge to warn him if the judge’s provisional assessment of the position revealed the error. I cannot accept that the judge was at fault in any way in this respect. He did specifically raise the question at the conclusion of counsel’s address and it was in response to that prompting that counsel made clear that the point was abandoned. I do not think it is realistic to suggest that the judge was required to do more. Counsel’s concession might have lead to considerable difficulties in certain circumstances. However, in the light of our conclusions that liability is established under the Manual Handling Regulations against the first respondent, it is unnecessary to consider further this aspect of the case against the first respondent and this alleged breach of duty need only be considered against the second respondent.

20. The second respondent’s case is that it did not have control over the workplace nor was the gritting operation a matter within its control. Accordingly regulation 4(2) of the Workplace Regulations has no application to it. Mr Limb on behalf of the second respondent points to the fact that the claimant in evidence made no criticism of the second respondent and the first respondent has never suggested that blame lay with the second respondent.

21. Indeed it had admitted in its defence being responsible for the gritting and had written through its insurers to say:

“If the claim against your Insured relates entirely to allegations that the area was unsafe due to icy conditions … we would accept that this is a matter for ourselves to deal with.”

22. Mr Copnall argues that as the owner of the premises the second respondent did have a sufficient degree of control of the workplace in that it could if it was aware of a dangerous practice within the yard have dictated to the first respondent how that task which it had entrusted to the first respondent should be carried out.

23. The judge’s conclusions in respect of this matter appear on page 4 of the judgment (page 33 of the bundle):

“The interpretation of 4(2)(c) placed by the Counsel for the claimant is in my view unjustified. It cannot be argued that this substance, this ice, was within the control of the second defendant. It came through means beyond his control and the duty of dealing with it fell on the first defendant. In my view Regulation 12(3) does not apply to the second defendant.”

24. I find it difficult to accept the judge’s reasoning. It was not, as I understand it, being suggested that the presence of the ice was something under the control of the second respondent. It was being suggested that since this was an occurrence to be anticipated from time to time, the countering of this hazard was something over which the second respondent had some control.

25. Having accepted that the judge’s reasoning was flawed, what should the answer have been? I am satisfied that the second respondent was “someone” with a degree of control over this workplace. The Workplace Regulations did apply to the workplace and were in force in respect of it. The critical issue was, therefore, whether the requirement to keep the workplace free from any substance which might cause a person to slip under regulation 12(3) related “to matters within” the second respondent’s control”.

26. In my judgment it did not. The gritting operation was one that was entrusted to the second respondent by the first respondent, an independent contractor, and there was no evidence in any way to suggest that the second respondent retained any degree of control of this “matter”. For these reasons I conclude, although for different reasons that the judge was right to conclude that liability had not been made out against the second respondent.

27. It remains to consider the issue of contributory negligence. The judge concluded:

“… this was an accident that arose totally out of this claimant’s own disregard at that particular moment for his own safety and if, indeed, any liability had fallen on the first or second defendants for any breach of statutory duty or indeed negligence, my view here is that this accident occurred totally as a result of the claimant’s own action and the contributory negligence would be indeed 100 per cent.”

28. Mr Haslam on behalf of the first respondent contends that this is an entirely proper approach, fully justified by the evidence. Mr Copnall argues that it cannot be right. If there was, as I have concluded there should have been, a finding that the appellant was being required to carry out a manual handling operation which carried a risk of injury, when if the first respondent had complied with its statutory duty that risk should have been avoided, the first respondent must shoulder a significant degree of the blame if that risk turns into reality.

29. I accept that Mr Copnall’s argument is a valid one. It is necessary, therefore, to apportion blame between employer and employee. The task, albeit carrying a risk, was not a particularly difficult one. So long as the appellant kept his concentration on the task, the risk would not materialise. He was an experienced workman. On the other hand, the task was a long one and any prudent employer would have to recognise that the appellant’s concentration might wander over the prolonged spell of over two hours that the task would take.

30. In these circumstances, I would conclude that the fault in this case falls equally on the appellant and the first respondent and that there should be a finding of 50% contributory negligence.

31. Accordingly I would allow the appeal as in respect of the first respondent so that there should be judgment for the appellant for one half of the damage suffered and dismiss the appeal in respect of the second respondent.

LORD JUSTICE HENRY:

32. I agree.

ORDER: Appeal allowed against first respondent with costs here and below, those costs to be subject to detailed assessment unless agreed; appeal against second respondent dismissed with costs in the sum agreed.(Order does not form part of approved Judgment)

 

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