Employers' liability - poolside high chair – defective equipment - slip
Deeley v Dudley MBC (2012) - Birmingham County Court
Facts - during the course of his employment, a lifeguard at a local leisure centre stepped from the rungs of a poolside highchair on to the platform at the top of the highchair, causing the lifeguard to fall.
The platform should have had two metal screws in the side securing it to the chair. It was accepted by the Defendant that the screws were not in place at the time of the accident but it was denied that the platform could move because three out of its four sides wrapped around the highchair metal frame.
Findings - judgment for the Defendant:
- The platform was very difficult to move. The lack of two screws did not render the equipment in breach of regulation 5(1) PUWER 1998 because the platform was situated over the metal frame.
- The Claimant's injury to the front of his right leg was unlikely to have come from slipping on the platform as there was no part of the highchair there to injure the front of his leg on.
- The accident report form signed by the Claimant stated that the rungs were slippery and caused the Claimant's accident. As this was the most contemporaneous document it was more reliable than the Claimant's account that, over time, may have become confused.
Comment - the judgment centred around the factual evidence given by the Defendant's five witnesses. It was particularly important that the witnesses made concessions when they could, such as the relatively inexpensive remedy for buying and replacing the two screws, and this won favour with the judge in believing their evidence over the more implausible Claimant's evidence.
Employers' liability – traffic route – adequate lighting - tripping hazard
White v Coventry City Council (2012) - Walsall County Court
Facts - the Claimant left work through a fire escape door and as he walked to his car, tripped and fell over a chain which was secured at either end to the wall of an alleyway, hanging between shin and knee height, separating the staff car park from the delivery area.
Findings - Regulation 5 of The Workplace (Health, Safety and Welfare) Regulations 1992 did not apply. The Claimant's complaint was as to the presence of the chain, not any failure to maintain it. When considering regulation 8 of the Workplace Regulations the judge found that the lighting was adequate, suitable and sufficient.
It was found that this was not a reasonably used route as the Claimant accessed the route by leaving the building via a fire door, an exit which was prohibited. Whilst counsel for the Claimant had argued that he could well have come across the chain by entering the delivery area via the gate which led to the main footpath/road (without leaving the building via the fire door), the delivery area contained a gate, which was sometimes locked and therefore it was not reasonable to use the delivery area as a short cut in order to save a few seconds in walking around the footpath to the car park which was a well lit area along a main road. The chain therefore did not cross a traffic route.
The trial judge found that the chain was not a tripping hazard because it would dangle loosely at about knee height; whilst it may occasionally drop a little lower than this, it was not correct to say that the chain would be at shin height and it was not a tripwire.
The judge found that the mechanism of the Claimant's accident was not that he tripped and fell suddenly and without warning on the chain but that he attempted to step over the chain and caught his foot on the chain, causing him to fall. The accident was caused solely by the Claimant's own misjudgement.
Comment - there have been few, if any, reported cases where the courts have found an area not to be a traffic route.
Despite evidence from co-workers confirming that they regularly used the route, this was not a reasonably used route. Whilst the Defendant had not specifically prohibited the crossing of the chain, the mere presence of the chain itself together with appropriate lighting was sufficient to constitute a message of dissent.
Employers' liability – workplace – highways – negligence – Workplace (Health, Safety and Welfare) Regulations 1992 – s.41 Highways Act 1980
Cox v Hartlepool Borough Council (2012) - Middlesbrough County Court
Facts - the Claimant was employed by the Defendant Council as a care assistant and attended the homes of elderly service users to provide assistance with day to day living routines. On 9th April 2008 she crossed a section of public highway which she alleged was poorly lit, in order to attend the home of a service user.
The core of the Claimant's case was the fact that a premises risk assessment was carried out upon the service user's home after the accident which identified the need for an additional light to be installed outside the house. The Claimant argued that had such risk assessment been carried out before the first visit then her accident would not have occurred. The Defendant argued that the need for additional lighting arose only because of the Claimant's accident; the risk assessment had been carried out in daylight and would not otherwise have featured in the risk assessment; the service user had been visited in the preceding 11 days and no safety issues had been raised and finally that the Claimant was in any event provided with a torch for her own personal use which she conceded she did not use on the basis that it was defective. The Defendant's case was that the Workplace Regulations were not engaged as public highways were expressly excluded from the definition of "workplace" and s.41 Highways Act was not engaged as there was no defect in the highway.
Findings - the court was satisfied that the level of lighting was not so poor that no reasonable employer would have allowed its employee to go to the location. Further the Claimant was provided with a torch which she did not use and did not report to the Defendant as being defective as she knew she should.
Comment - this was a good, common sense judgment in circumstances where the lack of a pre-accident risk assessment could have been used by the judge to make a finding in favour of the Claimant. The failure by the Claimant to use, or report as defective, the torch provided to her was critical.
Employers' liability – agency care worker – trip - crèche
Mahmood v London Borough of Barking & Dagenham (2012) - Romford County Court
Facts - the claim concerned an agency care worker who alleged that she tripped on a wooden "wave" panel which formed part of a barrier to a designated baby area within a children's crèche. The panel was part of an integrated furniture system that was purchased from a specialist supplier. She alleged that she tripped on the panel as she stepped over it whilst collecting books from the baby area and sustained injury to her knee. She pleaded breach of various provisions under the Workplace (Health Safety & Welfare) Regulations 1992 regarding suitability of the workplace and obstruction of traffic routes and various provisions under the Management of Health and Safety at Work Regulations 1999 in failing to risk assess and train, as well as common law negligence.
The panel had a curved top edge which measured 61cm at its highest point and 41 cm at its lowest point. It was argued on behalf of the Defendant that the panel did not constitute an unusual danger or hazard. It could be stepped over by taking the most basic of care and it would be unreasonable for an employer to carry out a risk assessment or to train staff for such a simple and straight-forward task. There were other issues regarding whether the accident occurred as alleged. The children using the crèche and permanent staff had gone home but the Claimant had remained behind by herself when the accident allegedly occurred. Consequently the accident was not witnessed by anyone.
Findings - after hearing evidence from both sides the judge agreed that the panel did not constitute an actionable hazard and the Claimant had not taken sufficient care. The claim was dismissed and an order for costs made against the Claimant.
Comment - whilst this is a case which is fact specific it is nevertheless a common sense judgment by the Court which accepted that stepping over a relatively low panel did not require specific training or risk assessment as it did not pose a substantial risk or danger.
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