Making sense of the Workplace
Regulation 12 (3)
In the recent Court of Appeal
decision of Rita Burgess v Plymouth City Council [2005] EWCA Civ 1659 Lord Justice May, Lady
Justice Smith and Sir Anthony Clarke examined the application of Regulation 12 (3) of
the Workplace (Health, Safety and Welfare) Regulations 1992). Burgess is
perhaps a strange case to have found itself in the appeal courts in any event.
As will be seen, the facts of the claim are very straightforward. The
Defendants, who were the Respondent to the appeal sought to extend the
interpretation of the 12 (3) to exclude the Claimant as a person covered by the
section on grounds of her job and reason for being in the vicinity of the
tripping hazard. Lord Justice Kay sitting with Lady Justice Smith and Sir
Anthony Clarke give this argument short shrift, upholding the first instance
decision.
Facts
Although there was some concern
expressed by the trial judge over inconsistencies within the claimant’s
evidence, the following would appear to be common ground.
The Claimant, Mrs Burgess was
employed by the Defendant as a dinner lady and cleaner at Earnsettle Junior School in Plymouth. The accident occurred on the 27th February 2002 at about
4.00pm. the Claimant was cleaning a classroom. She was wiping a group of three
tables, which were positioned just inside the door through which she had
previously entered the classroom.
In an area between the tables and
the door the Claimant fell over an object on the floor. It was agreed that the
object was a lunch box container. The container was described as being bright
blue in colour and had dimensions of 43cm long; 34cm wide and 25.5cm high.
As a result of the fall the Claimant sustained injuries to her knee and back,
which were of sufficient severity that the Claimant was unable to return to
work.
On the basis that the claim
succeeded at first instance under Regulation 12 (3) of the Workplace Regs. it
is important to look at the system that the Defendants operated in relation to
small lunch boxes.
The system was that children would
bring their own lunch to school in small plastic boxes, which would then be
deposited in the said container at the start of the day. At lunchtime, the
children, having had lunch would take their empty individual boxes and store
them back in the containers until the end of the day, The containers were then
stowed in safe place in the classroom.
The Regulations
Regulation 12 (3) of the Workplace
(Health, Safety and Welfare) Regulations 1992 deals with the conditions of
floors and traffic routes. It provides that:
So far as 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.
At first instance the judge based
liability on the single issue that it would have been reasonably practicable
for the lunch box containers to be safely stowed away at the side of the room
in accordance with the usual system. He considered that the containers were a
tripping hazard and that on the basis that the accident could have been
prevented by adherence to the usual system he found there had been a breach of
the Regulations and therefore found that the Defendants were liable for the accident.
Not surprisingly he found that there
was a significant element of contributory negligence, assessed at 50% on the
basis that the Claimant was:
“…not keeping a proper lookout for
her own safety and failed to see what was not in any way a trap of a hidden
hazard but something which was plain an obvious for anyone to see who looked
where he or she was going.”
I find the judges reasoning for
giving permission to appeal to be somewhat confusing and lacking any substance
of which to allow permission. For the record in his written reasons for
granting permission he states:
“On the factual matrix of
this case where the claimant was in the course of cleaning the classroom when
she fell over a plastic basket measuring 43cm by 34cm by 25.5cm which was plain
and obvious for anyone to see the defendants were nonetheless guilty of a
breach of Regulations 12 (3) of the…Regulation.”
The effective ground of appeal
forwarded by the Defendant was that it was the very nature of the Claimants job
to ensure that there was compliance with Regulations 12 (3) of the classroom.
The Defendants relied on the fact that the Claimants job involved tidying up
the classroom and it was therefore her job to remove the container.
Lord Justice May however did not
consider that the “question of whether Mrs Burgess was employed to tidy away
items such as the lunch box containers was determinative of the finding of a
breach of duty.” He states that he considers the judgment at first
instance to amount to a finding that, “a floor or the surface of a traffic
route had not been kept free from obstruction which may cause a person to
…fall.” He accepted the position that there was a system in place, which,
if followed, would have resulted in the lunch box container being safely stowed
away, and consequently not a hazard to the Claimant.
Lord Justice May concluded that “if
the system had been correctly operated, the lunch box container would not have
been in a position where Mrs Burgess fell over it. It was an obstruction or an
article, which may cause a person to fall, and it was reasonably practicable
for it to have been stowed elsewhere. He considered that the breach of
duty was as simple as that.
On appeal the Defendants sought to
criticise the judgment on the basis that although it included a finding that
the container ought not to have been where it was and that it was reasonably
practicable for it to have been safely stowed elsewhere, it did not address the
further question: was it something that might foreseeably have caused anyone to
fall? Lord Justice May dismisses this stating that he considers that the trial
judge had the words of 12 (3) well in mind when he gave his judgment.
Consequently, the appeal was
dismissed and as the issue of contributory negligence was not pursued at the
appeal hearing, the Claimant kept her 50% of assessed damages.
Conclusion
The Court of Appeal made their
position very clear, in summary concluding that there was a system in place,
which was not operated correctly, and had it been operated correctly the
accident would not have occurred.
One has some sympathy with the
Defendant, for what would appear on first reading to be a duty to ‘clean up
before the cleaner arrives.’ However the subtly of the Court of Appeal’s
analysis is clear and based on the fact that putting away these containers was
not something that was within the duties of the Claimant, but something the
Defendant should have ensured took place, and that by leaving the container
where it was a foreseeable and preventable risk occurred.
I am somewhat troubled by the
conclusion that Lord Justice May reaches as to the fact that he did not
consider whether Mrs Burgess was employed to tidy away items such as the lunch
container to be determinative of the find of breach of duty. By applying the
wording of the Regulation exactly, i.e. “something likely to cause a person
to …fall” the Court of Appeal open themselves up to a wider interpretation
by claimants that if Mrs Burgess had for example slipped on a crisp packet that
was littered on the floor she should still be able to claim, even though it was
within her very job description to clean the actual hazard she slipped on,
away. The issue then may be one of contributory negligence, a defendant no
doubt arguing that 100% contributory negligence in this set of facts would be
appropriate.
In the final analysis this is useful
decision for Claimants trying to establish a strict interpretation of the
Workplace Regulations and a worrying case for the Defendants and their insurers
ADAM
D DAWSON
9 GOUGH SQUARE
