Horton v Taplin Contracts Ltd

Statutory duties concerning work equipment and workplace safety are assessed in their proper context. Reasonable foreseeability informs whether equipment is suitable, whether stabilisation is necessary, and whether a place of work involves an actionable risk. An employer is not required to guard against an wholly unpredictable, deliberate and violent act by a third party.

In any event, a claimant must prove that the alleged breach caused the accident or injury. Evidence that safety measures would have improved stability in ordinary use does not establish that they would probably have prevented deliberate toppling. Such conduct may also constitute a novus actus interveniens breaking the chain of causation, including in a claim for breach of statutory duty.

The claimant, a carpenter employed by the respondent, was injured when a scaffolding tower on which he was working was deliberately toppled by a colleague. The Recorder dismissed his action, finding that the colleague’s conduct was intentional and unforeseeable, and that the claimant had not proved that outriggers or guard rails would have prevented the accident or his injuries.

The claimant appealed, alleging breaches of regulation 5 and regulation 20 of the Provision and Use of Work Equipment Regulations 1992, and regulation 5(2) of the Construction (Health Safety and Welfare) Regulations 1996. The central issues were whether the regulations required protection against the colleague’s conduct and whether any breach caused the accident.

1. Appeal dismissed. Mr Justice Bodey, delivering the judgment with which Lord Justice Rix and Lord Justice Mantell agreed, upheld the Recorder’s dismissal of the claim.
2. Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 requires suitability to be assessed by reference to hazards to health or safety that are reasonably foreseeable. It did not require the employer to anticipate the colleague’s deliberate toppling of the tower, which was not reasonably foreseeable.
3. Although regulation 20 uses the words “shall ensure”, the obligation to stabilise equipment arises only where stabilisation is necessary for health or safety. That requirement imports considerations of foreseeability. The absence of outriggers therefore did not breach the regulation in circumstances where the relevant force was unforeseeable.
4. Regulation 5(2) of the Construction (Health Safety and Welfare) Regulations 1996 was to be construed purposively and in context. The tower was a safe place of work in the context of the work being undertaken. It became unsafe only because of an extraneous, deliberate and unpredictable act. The respondent was not in breach.
5. Alternatively, even if a breach were assumed, the claimant bore the burden of proving causation. The evidence did not establish that outriggers would probably have prevented a determined person from toppling the tower, or that guard rails would probably have prevented the injuries. A mere appeal to common sense was insufficient.
6. As a further alternative, the colleague’s wholly unpredictable, deliberate and violent act was capable of constituting a new intervening cause which broke the chain of causation. The court saw no logical reason why that principle should not apply to breach of statutory duty.

• Court of Appeal: The appeal was dismissed. [2002] EWCA Civ 1604
• Stoke on Trent County Court: Mr Recorder Cousins QC dismissed the claimant’s action by order dated 15 November 2001.