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LTL 28/7/2011, Court of Appeal - Charlie Woodhouse
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An employer had been in breach of its obligation to provide a suitable and sufficient handrail in accordance with the Workplace (Health, Safety and Welfare) Regulations 1992 reg.12(5) in circumstances where it had failed to provide a continuous handrail along the entire length of a staircase. However, an employee's claim for personal injury failed on the basis of causation where it could not be established that the presence of the handrail would have prevented the injury.
The appellant employee (B) appealed against the dismissal of her claim brought against the respondent employer (M) for breach of its statutory duty to provide a suitable and sufficient handrail along a staircase. While at work, B had tripped and fallen down a small flight of stairs and onto a small landing. Her momentum carried her down a longer flight of stairs and, as a result, she suffered injury. There had been a handrail which ran along part of the staircase. B brought a claim against M alleging that there had been a breach of the duty to provide a suitable and sufficient handrail in accordance with the Workplace (Health, Safety and Welfare) Regulations 1992 reg.12(5). The judge found that, although there had not been a continuous handrail, it was nevertheless suitable and sufficient. Alternatively, the judge concluded that the statutory exception contained in reg.12(5) applied, namely that a handrail could not have been provided without obstructing the traffic route. Further, the judge concluded that even if a continuous handrail had been provided, B would not have used it to prevent her falling and therefore causation had not been established. B submitted that, having regard to the relevant code of practice in relation to the Regulations, a "suitable and sufficient" handrail meant a handrail that was continuous along the entire staircase.
HELD: (1) Official publications from government departments could be referred to as an aid to construction in relation to the relevant statutory regulations, although it would be necessary to adopt a degree of caution, Ellis v Bristol City Council (2007) EWCA Civ 685, (2007) ICR 1614 applied. What was considered to be "suitable and sufficient" depended on the individual circumstances of the case. For example, a broad landing would not necessarily form part of a staircase where the duty to provide a handrail would arise. However, the overriding objective of the code of practice was to protect employees from harm and that was the interpretation that was to be preferred. The code of practice best explained how that was to be achieved. Therefore, unless the exception in reg.12(5) applied, a handrail had to be provided. Further, the burden was on an employer to establish the existence of that exception. (2) There had been little evidence before the judge to found the conclusion that it had been impossible to provide a handrail. However, the issue of causation had been one of fact for the judge to determine. It was particularly relevant that, during the hearing, B had demonstrated how she had fallen. That would have weighed heavily in the judge's decision in considering whether B would have held onto the handrail had it been provided. Therefore, on the issue of causation, the appeal failed.
Counsel for the respondent: Charles Woodhouse, instructed by Katherine van Aardt of Plexus Law.