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LTL 16/04/2013, Leeds County Court - Michael Nicholson
The firm of solicitors was liable for an injury suffered by one of its employees in a fall down a flight of stairs after losing her footing when stepping backwards to accommodate an outward opening door on a tiny landing. The firm had failed to carry out a risk assessment regarding the suitability of the route in question, in breach of its statutory duty under the Management of Health and Safety at Work Regulations 1999 reg.3 and the Workplace (Health, Safety and Welfare) Regulations 1992 reg.17(1) and (2).
The claimant (H) sought damages for personal injury suffered during her employment with the defendant firm of solicitors (E).
H had fallen down a flight of steps at work and suffered a severe elbow injury. She claimed that E was in breach of its common law duty of care, and its statutory duty under the Management of Health and Safety at Work Regulations 1999 reg.3 and the Workplace (Health, Safety and Welfare) Regulations 1992 reg.17(1) and (2). The Victorian building had been adapted into a modern office but there was a steep staircase between the middle and top floors. There was a small landing at the top of the stairs and the door opened outwards. H stated that she had reached the top of the stairs and had to step backwards to allow for the door to open. She said she lost her footing in doing so and fell backwards down the whole flight. E argued that it was simply an accident, that H had missed her footing when ascending the stairs, before reaching the top, and that issues concerning the opening of the door relative to the size of the landing were irrelevant. It argued that its employees routinely used the stairs and had done so for years without accident or complaint. The evidence from witnesses to events immediately following the accident was contradictory. E instructed a member (M) of its health and safety arm, who had a background in environmental health but no relevant qualifications as a structural engineer or architect, to investigate the accident. He concluded that there were no practical measures which could have been taken to eliminate or reduce the risk.
H contended that the accident was reasonably foreseeable; that reg.3 obliged employers to carry out a safe and suitable risk assessment; and that the route using the stairs was unsafe and unsuitable.
HELD: (1) H was a witness of complete integrity and was entirely reliable in respect of her assertion that she had reached the door at the top of the stairs. On the balance of probabilities, the accident had happened as H lost her footing stepping backwards off the tiny landing to accommodate opening the door. However, liability did not necessarily follow. The mere fact of an accident did not indicate the breach of any duty. It was for H to prove, on the balance of probabilities, that the accident had been caused by negligence and/or a breach of statutory duty owed to her by E. There was undoubtedly sufficient concern regarding the configuration of the door and small landing for employees to be warned to take special care when opening the door. M conceded in cross-examination that the configuration constituted a hazard, and E admitted that no risk assessment had been carried out before or since the accident. Its argument was that the admitted breach of reg.3 was not causative of H's accident as, even if there had been such an assessment, nothing would have been done to make the situation safer. That was an unattractive argument but could be run with suitable expert evidence. However, none had been obtained and it was not known what precautions might have been available, Allison v Isleburn Ltd 1997 S.C.L.R. 791 considered. Regulation 17(1) and (2) essentially asked the same question; namely, whether the route in question could be safely taken. It might be that the risk of a fall was comparatively small, historically judged. However, what had to be borne in mind was that in the instant case the risk of grave injury to the faller was extremely high, Palmer v Marks and Spencer Plc  EWCA Civ 1528 considered. Set against the absence of authoritative evidence from a qualified technician regarding the feasibility of precautions, liability had to follow. There had been breaches of reg.3, reg.17(1) and reg.17(2). It was therefore necessary to consider whether E could avail itself of the defence of reasonable practicability provided by reg.17(5) of the 1992 regulations. Following the finding that the route was unsuitable, the burden of proof shifted to E and the dearth of evidence with which to discharge that burden was fatal. The defence had not been established and even if the Regulations had not existed, E would have been found liable in breach of its common law duty of care (see paras 13-19, 26-42 of judgment). (2) Where there were statutory breaches found proved against an employer, the court should be slow to split liability, as any apportionment of blame on the part of the employee could emasculate the force and purpose of the Regulations. The issue was whether H's behaviour fell within the category of momentary inadvertence as opposed to contributory negligence. She was not disregarding any training given to her; she was not wearing unsuitable footwear; she was not in a hurry; she was using the balustrade until she had to transfer her right hand to the door handle; she was aware of the risk; she had to step back; she was not larking about; she was not distracted. All it took was a moment and a misjudgement of a few inches for her to lose her footing. There should be no reduction in her damages for any contributory negligence, the instant case being one of momentary inadvertence. There would therefore be judgment for H in full (paras 43-46).