Hannington v Mitie Cleaning (South East) Ltd & Anor

A hazard being an ordinary feature of life does not by itself exclude negligence. Employers and occupiers may still owe a duty to take precautions where the hazard is common or its consequences may be serious. The question is whether the risk was such that reasonable precautions ought to have been taken in the circumstances. Material concessions by defendants’ witnesses that a danger was obvious and should have been identified in a risk assessment may make breach arguable, particularly where the trial judge has not addressed them. The decision concerned permission to appeal and did not determine liability.

An employee injured while emptying waste into a lidded plastic bin brought personal injury claims against his employer and the occupier of the premises. The Portsmouth County Court dismissed the claims, finding no breach of duty and treating the incident as an ordinary hazard on a windy day. Alleged statutory breaches concerned the Use of Work Equipment Regulations 1992 and the Employers Liability (Defective Equipment) Act 1969, while the occupier claim relied on the Occupiers Liability Act 1957. The Court of Appeal considered whether the evidence disclosed an arguable breach and whether permission should also be granted on a fair-trial ground.

Lord Justice Pill granted permission to appeal against both defendants. Permission was granted generally on the liability issues, including the contention that the equipment was unsuitable and that there had been a breach of statutory duty. Permission was refused on the proposed fair-trial ground concerning the treatment of medical evidence, which had not been pursued.

1. The reference to ordinary hazards of life did not introduce a new legal rule. An ordinary hazard may still involve breach of duty. Employers and occupiers may be required to take precautions against common risks, particularly where serious consequences may result.
2. The governing negligence question is whether the risk was such that the employer or occupier ought reasonably, in the circumstances, to have taken precautions to protect employees or visitors. The trial judge was entitled to conclude on the evidence that the risk did not require precautions, but that conclusion was open to challenge on the evidence overlooked.
3. The defendants’ witnesses accepted that the lid mechanism was unsafe, that no one had addressed the problem before the accident, and that a prior risk assessment would have identified an obvious danger. The judge did not deal with those answers. They gave the claimant an arguable case sufficient to justify permission to appeal.

Lord Justice Mummery agreed. The order was permission to appeal as set out in the judgment; liability was not finally determined.

• Court of Appeal (Civil Division) granted permission to appeal against both defendants on the liability and statutory-duty issues, but refused permission on the fair-trial ground.
• Portsmouth County Court, sitting at Winchester, dismissed the personal injury claim on 24 January 2002.