Sherlock v Chester City Council

An employer’s duty to provide proper equipment and a safe system of work is not discharged merely because an experienced employee could identify a danger himself. The employer must take reasonable steps to identify and address the relevant risk, including by an appropriate risk assessment and instructions. The assessment may be informal where the circumstances do not require a formal procedure, but it must ensure that both employer and employee appreciate the risk and necessary precautions. An employee’s fault does not exclude liability where an independent breach by the employer materially caused the accident. Contributory negligence may nevertheless be substantial where a skilled employee consciously accepts a readily avoidable risk.

The appellant, an employed joiner, lost his left thumb and index finger while using a portable bench saw to trim long fascia boards. The employer had provided the saw but had not carried out a risk assessment, provided a run-off bench, or given specific instructions or training about its use. The judge in the Liverpool County Court rejected the appellant’s account of the precise accident mechanism and dismissed the claim after finding no causative negligence or breach of statutory duty. The appeal concerned the employer’s common-law duty, alleged breaches of the Provision and Use of Work Equipment Regulations 1998, the Management of Health and Safety at Work Regulations 1999 and the Manual Handling Regulations 1992, and the effect of the appellant’s own knowledge and conduct.

Appeal allowed. Latham LJ gave the judgment with which Arden LJ and Auld LJ agreed.

1. The judge’s findings showed that the absence of a run-off table or second worker was at least a cause of the accident. The employer’s common-law duty to provide proper equipment and a safe system of work was not satisfied merely because the appellant was experienced enough to identify the precaution himself. The employer should at least have asked what was required and alerted or reminded him of the need for a run-off table or second worker.
2. A formal risk-assessment procedure under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 was unnecessary on these facts. Some informal assessment was required, however. Its purpose was to ensure that an apparently obvious risk was appreciated by both employer and employee and that appropriate protective steps were taken.
3. The admitted breach of Regulation 20 of the Provision and Use of Work Equipment Regulations 1998, requiring necessary stabilisation of the equipment, was causative. Regulation 8(1) was also breached because the employer failed to identify the need for a run-off bench and give the appropriate instruction. There was no breach of Regulation 9(1), since the appellant was adequately trained to use the workbench. The conclusions already reached also established a breach of Regulation 4(1) of the Manual Handling Regulations 1992.
4. An employee’s wrongful act may be the immediate cause of an accident without excluding employer liability. The relevant question is whether the employer’s fault went beyond, or was independent of, the employee’s act and caused or contributed to the accident. Here the employer’s obligations were independent and causative, so the appellant’s fault was not co-extensive with the respondents’ fault. The approach in Ginty v Belmont Building Ltd [1959] 1 All ER 414, as approved and expressed in Boyle v Kodak Ltd [1969] 2 All ER 439, did not absolve the respondents.
5. The statutory requirements also served to protect employees against the consequences of inattention and to ensure that both parties identified the relevant risk and precautions. In assessing contributory negligence, different considerations may arise where a skilled employee consciously accepts a risk and the precaution is neither esoteric nor beyond his own capacity. The appellant could have made a run-off bench or ensured that the second worker was present. His responsibility was assessed at 60 per cent.

Judgment was substituted for the appellant with contributory negligence assessed at 60 per cent. The matter was remitted to the Liverpool County Court for disposal and assessment of damages. Orders were also made concerning the parties’ claim and appeal costs.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 201, the appeal was allowed. The County Court order was set aside and judgment was entered for the appellant subject to 60 per cent contributory negligence.
• Liverpool County Court (HHJ Brown) — Following a trial on liability, the claim was dismissed on 2 May 2003. The judge found that the appellant had not established that the accident was caused by negligence or breach of statutory duty.