Parker v P.F.C. Flooring Supplies Ltd.

An employer must take reasonable steps to protect employees against risks reasonably foreseeable as likely to occur in the course of their employment. Foreseeability depends on the nature, functions, restrictions and general parameters of the job, together with the broad activities likely to be undertaken for the employer’s interests.

Where workplace arrangements make it foreseeable that an employee may access a dangerous roof for a legitimate purpose, clear prohibitions, warnings or instructions may be required. The detailed circumstances of the visit need not themselves be foreseeable. An employee’s evidence that he would have obeyed a clear instruction may establish causation.

An appellate court should not disturb a contributory-negligence apportionment unless the trial judge was plainly wrong.

The claimant, an employee and sales director of the respondent flooring company, suffered permanent paraplegic injuries after falling through a warehouse skylight while investigating a cable attached to the roof. The company had provided a ladder but had issued no warning or instruction prohibiting roof access.

Mr Peter Birts QC, sitting as a deputy judge of the Queen’s Bench Division, found liability in negligence, also found breaches of the Workplace (Health, Safety and Welfare) Regulations 1992, and apportioned responsibility for contributory negligence equally. The company appealed on foreseeability, breach, causation and apportionment. It also challenged the statutory-duty findings. The central issues were whether roof access was reasonably foreseeable and whether a warning or prohibition would have prevented the accident.

The appeal was dismissed unanimously. Lord Justice Potter delivered the first judgment, with Lord Justices Ward and May agreeing.

1. The employer’s duty was to take reasonable steps for employees’ safety against risks reasonably foreseeable as likely to occur in the course of employment. The assessment depended on the nature, functions, restrictions and general parameters of the employee’s job and the broad areas of activity in which the employee might engage in furtherance of the employer’s interests.
2. In this case, the company was small, employees’ duties overlapped, the ladder was readily available, and the claimant had responsibility for security. It was reasonably foreseeable that an employee might use the ladder to inspect the roof or remove an object attached to it. The employer did not need to foresee the precise cable-investigation and fall. The relevant risk was that an employee might have cause or inclination, in the course of employment, to go onto the roof for a legitimate purpose.
3. Reasonable precautions included a clear prohibition, warning notice or company rule against roof access. The claimant’s knowledge that his father would have refused permission in hindsight did not show that he would have ignored an express instruction. The trial judge was entitled to find that the claimant would have obeyed such an instruction, so the omission was causative.
4. The claimant’s decision to leave the ladder and walk on the slippery roof was foolhardy and amounted to substantial contributory negligence. However, the employer’s systematic failure to address foreseeable risks was equally substantial. Applying the Law Reform (Contributory Negligence) Act 1945, the 50/50 apportionment was reasonable. The Court of Appeal would not interfere unless the judge was plainly wrong.
5. The arguments concerning regulations 13(1), 13(3) and 13(4) of the Workplace (Health, Safety and Welfare) Regulations 1992 were arguable, but it was unnecessary to decide them because common-law negligence disposed of the appeal and the statutory findings did not affect apportionment.

Appeal dismissed. Costs ordered in favour of the respondent, with detailed assessment of Legal Services Commission funding.

• Court of Appeal (Civil Division): Appeal from the judgment of Mr Peter Birts QC, sitting as a deputy judge of the Queen’s Bench Division, dismissed. The court upheld the negligence finding and the 50/50 apportionment.
• High Court of Justice, Queen’s Bench Division: On 12 October 2000, judgment was given for the claimant on liability. The judge found negligence, statutory-duty breaches and equal contributory negligence.