England v IBC Vehicles Ltd

Management of Health and Safety at Work Regulations 1992, regulation 5, imposes an absolute obligation relevant to workplace obstructions. The availability of a safe alternative route does not necessarily prevent liability where an employee uses an unsafe route. Liability depends on whether that use was reasonably foreseeable, and the fact that the route was shortest and quickest may make foreseeability obvious. On a second-tier appeal, permission should be refused where the proposed challenge raises no serious point of principle or practice and pursuing it would be disproportionate.

Paul England was injured after stepping on a pallet obstructing a workplace passageway. The District Judge accepted evidence that employees did not ordinarily step on such pallets and found that the route and danger were not reasonably foreseeable.

On appeal, His Honour Judge Viljoen treated the obstruction as engaging regulation 5 and concluded that the quickest route was a reasonably foreseeable route, making the appropriate allocation 50/50 between liability and contributory negligence. England sought permission for a second-tier appeal, arguing that the judge had impermissibly superimposed foreseeability on the District Judge’s findings. The central issue was whether that challenge disclosed an appealable error.

Lord Justice Potter refused the application for permission to appeal.

1. Statutory duty. The passageway obstruction was a temporary obstruction within regulation 5. The court accepted the lower judge’s view that the regulation imposed an absolute obligation on the employer. The word efficient was to be assessed from the standpoint of health, safety and welfare. The existence of a safe alternative route did not conclude the issue. Where an employee used an unsafe route, liability could arise if it was reasonably foreseeable that the employee would use it. The fact that the route was the shortest and quickest could make that use obvious and reasonably foreseeable.
2. First-instance findings. The District Judge’s findings included the availability of safer but more inconvenient routes and the fact that the claimant took the quicker route in the exigencies of his work. Judge Viljoen was entitled to assess foreseeability by reference to those primary facts. Although there was room for argument that he had interfered with the first-instance findings, Potter LJ considered that argument unsuccessful and regarded the reasoning as a fair and proper reflection of the right answer.
3. Second-tier appeal and proportionality. The proposed appeal raised no serious point of principle or practice with wider importance. The sum involved was approximately £3,000, and the lower court had apportioned liability and contributory negligence equally. A further appeal would therefore be disproportionate. Application refused.

• Court of Appeal (Civil Division): refused permission for a second-tier appeal. The court held that the proposed challenge raised no serious point of principle or practice and that a further appeal would be disproportionate.
• County Court at Watford: His Honour Judge Viljoen heard an appeal from the District Judge and treated regulation 5 as engaged, concluding that liability and contributory negligence should each be assessed at 50 per cent.
• District Judge Gill: found that the route taken and the danger it presented were not reasonably foreseeable, having accepted evidence about employees’ ordinary conduct.