Hannington v Mitie Cleaning (South East) Ltd & Anor

An employer's duty of care extends to foreseeable risks arising from the ordinary hazards of work. The employer must take practicable precautions and provide a safe place, safe equipment and a safe system of work. Employees' failure to complain is only a guide and is not the test of what the employer should have foreseen or done. This applies even where equipment is owned or supplied by another.

An occupier's duty to a visitor is contextual and differs from the employer's duty. The occupier may take account of the care ordinarily expected from an experienced visitor, including the ability to appreciate and guard against risks ordinarily incident to the visitor's calling. An occupier is not generally subject to an employer's task-specific risk-assessment duty where it lacks knowledge of the relevant danger.

The claimant, an experienced contract cleaner employed by Mitie Cleaning (South East) Ltd, was injured while emptying waste into a skip at the premises of De La Rue Cash Systems Ltd. The skip lid, standing open in a windy yard without a securing device, fell and caused the claimant to fall from the platform beside the skip.

His claims in negligence and breach of statutory duty against his employer and the occupier were dismissed by Portsmouth County Court on 24 January 2002. The appeal concerned whether the employers had failed to provide safe equipment or a safe system of work, and whether the occupiers were liable under common law or the Occupiers' Liability Act 1957.

Disposition. The appeal was allowed against the employers on liability and dismissed against the occupiers. Lord Justice Potter gave the leading judgment, and Lord Justice Aldous agreed.

1. Employers' duty. The judge's description of the risk as an ordinary hazard of life did not relieve the employers of their common-law duty. An employer must, so far as practicable, guard an employee against foreseeable risks arising from ordinary hazards encountered in the course of employment. That duty includes providing a safe place of work, safe equipment and a safe system of work, even where the relevant equipment is not owned by the employer.
2. Foreseeability and precautions. The risk that the skip lid could fall in a gust of wind was obvious and foreseeable. The employees' own lack of complaint could at most guide the assessment of what the employers should have foreseen; it was not the legal test. The employers' witnesses accepted that the operation should have been evaluated and risk assessed, and that simple protective measures could have been adopted. An appropriate mechanism to prevent the lid falling should therefore have been provided, despite the absence of a specific prior complaint.
3. Statutory duty. Reliance had also been placed on regulations 5(1) and (2) of the The Provision and Use of Work Equipment Regulations 1992. The court did not determine their ambit or effect because the common-law negligence claim against the employers succeeded.
4. Occupiers. Under section 2(2) of the Occupiers' Liability Act 1957, the common duty required reasonable care in all the circumstances to ensure that the visitor was reasonably safe for the permitted purpose. Section 2(3), including paragraph (b), made the degree of care ordinarily expected from the visitor relevant. The claimant was an experienced cleaner, and the occupiers could reasonably rely on the employers' opportunity to inspect the equipment and raise concerns.
5. No occupier liability. The occupiers had no employer's task-specific risk-assessment duty towards this non-employee visitor. There was no evidence that they knew of the particular wind hazard or the unsafe operation of the lid. The evidence of a post-accident concession by their witness did not alter that conclusion. Judgment was entered for the claimant on liability against the employers, and damages were remitted to Portsmouth County Court for assessment by a different judge.

• Court of Appeal (Civil Division): On 26 November 2002, allowed the appeal against the first defendant on liability, dismissed the appeal against the second defendant, and remitted damages for assessment.
• Portsmouth County Court: On 24 January 2002, His Honour Judge Anthony Thompson QC dismissed the claims for negligence and breach of statutory duty.