Wallis v Balfour Beatty Rail Maintenance Ltd

An employer’s duty is to guard against foreseeable dangers to which an employee may be exposed. The foreseeability of an accident of a particular type, and questions of causation, are factual assessments for the trial judge in light of all the circumstances. An appellate court should not interfere without legal or evidential justification. An employer may breach a workplace traffic-route regulation without being liable where the breach did not cause the injury and the employee’s hazardous, unforeseeable decision was the sole cause. Equipment suitability is assessed by the purpose for which it was provided and reasonably foreseeable effects on health or safety.

The claimant, an experienced track manager, was injured while trying to access railway track after finding that the access gate was secured by a padlock which his key could not open. He climbed a palisade fence and a bridge wingwall, reached the track, and was injured while taking the same route back.

The Central London County Court dismissed his common-law and statutory claims. The Recorder found that safety was paramount, that any alternative access was implicitly required to be safe, that the claimant’s route was unforeseeable, and that his own actions were the sole cause of the accident. The appeal concerned foreseeability, causation, the Provision and Use of Work Equipment Regulations 1992, and the Workplace (Health, Safety and Welfare) Regulations 1992.

Mr Justice Morland gave the principal judgment. Lord Justice Buxton agreed and added reasons on the scope of the employer’s duty and appellate restraint. Lord Justice Brooke agreed with both judgments. The appeal was unanimously dismissed with costs.

1. Common-law negligence. An employer owes an employee a prima facie duty to take care for the employee’s safety, but the duty concerns foreseeable dangers. The employee had to identify a danger which the employer ought reasonably to have anticipated. The finding that previous wrong locks had not occurred and were not reasonably foreseeable defeated the principal pleaded case.
2. The instruction to find the quickest alternative access was properly understood, in the context of a safety-paramount system, as an instruction to use a safe traffic route. It did not make the dangerous route chosen by this experienced employee foreseeable or authorised. The Recorder’s formulation did not require foreseeability of every detail of the accident. Her conclusions on foreseeability and causation were factual assessments supported by the evidence. Applying the guidance in Jolly v Sutton London Borough Council [2000] 1 WLR 1082, there was no proper basis for appellate interference.
3. Work equipment. The Recorder’s unchallenged conclusion that the lock and key were work equipment was accepted, although Morland J expressed reservations about that classification. Under regulation 5 of the Provision and Use of Work Equipment Regulations 1992, the key had to be suitable for the purpose for which it was provided. It was provided to open the employer’s common lock, not an unforeseeably substituted lock. No breach was established.
4. Traffic routes and causation. The access gate was a traffic route within regulation 17(2) of the Workplace (Health, Safety and Welfare) Regulations 1992. Because it was barred by the incompatible padlock, there was a breach of that regulation. That breach was not causative, however. The sole cause of the accident was the claimant’s decision to take the hazardous route in and out. The Recorder’s conclusions on the remaining statutory allegations were upheld.

• Court of Appeal (Civil Division): Appeal dismissed with costs, [2003] EWCA Civ 72.
• Central London County Court (Miss Recorder Simmons QC), judgment dated 22 March 2002: claim dismissed with costs. Damages were conditionally assessed at £38,187, subject to contributory negligence, if the claimant succeeded on appeal.