Sherlock v Chester City Council

An employer's common-law duty to provide proper equipment and a safe system of work is not discharged merely because an experienced employee could identify a precaution for himself. Where an operation creates an apparent risk, the employer must assess it, identify the necessary safeguard, and alert or remind the employee. The assessment need not always be formal, but it must ensure that both parties appreciate the risk and precaution. Specific safety information may be required even where the employee is adequately trained. An employee's failure to take an obvious precaution does not make the employer's breach non-causative where the employer's fault is independent and causative. It may, however, justify substantial contributory negligence where a skilled employee consciously accepted 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, flexible fascia boards. The saw had been supplied after the workers requested it, but no risk assessment or specific instruction was given and no run-off bench was provided.

HHJ Brown dismissed the claim, finding that the appellant's skill and experience made further measures unnecessary and that any breaches were non-causative. The appeal concerned the common-law duty to provide proper equipment and a safe system of work, 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, causation, and contributory negligence.

Appeal allowed. The order of HHJ Brown was set aside. Judgment was entered for the appellant, subject to 60% contributory negligence, with the matter remitted for assessment of damages.

1. The judge had rejected, or had not accepted, the appellant's account of the accident. However, his findings showed that the absence of a run-off table or second worker was at least a cause of the accident. Both experts considered that an assessment would have identified the need for that precaution.
2. A formal assessment under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 was not required on these facts. An informal assessment by a responsible manager was sufficient, but it had to identify the risk and the necessary safeguard. The employer's common-law duty to provide proper equipment and a safe system of work was not discharged merely by relying on the appellant's skill and experience.
3. There was no breach of Regulation 9 of the Provision and Use of Work Equipment Regulations 1998, since the appellant was adequately trained to use the bench saw. There was, however, a breach of Regulation 8 because the need for a run-off bench, or a second worker, should have been identified and communicated. The admitted breach of Regulation 20 and the breach of Regulation 4 of the Manual Handling Regulations 1992 were also causative.
4. The approach in Ginty v Belmont Building Ltd [1959] 1 All ER 414 applied. An employee's wrongful act as the immediate cause of an accident is not decisive where the employer's fault is independent of, and goes beyond, that act and contributes to the accident. The conditional observation in Boyle v Kodak Ltd [1969] 2 All ER 439 did not govern a case where the relevant obligations required risk assessment and specific instruction. The statutory purpose identified in Staveley Iron and Chemical Company Ltd v Jones [1956] AC 672 was relevant, although this was not a case of mere inattention.
5. Although marked findings of contributory negligence are not usual in breach of statutory duty cases, different considerations apply where a skilled employee consciously accepts a risk and can readily take a precaution himself. The appellant could have made a run-off bench or ensured that a second worker was present. His responsibility was therefore assessed at 60%.

The respondents were ordered to pay the appellant's appeal costs and the costs of the claim, subject to the specified exception for the period from 8 April to 2 May 2003.

• Court of Appeal (Civil Division): in [2004] EWCA Civ 210, the appeal was allowed, the order below was set aside, judgment was entered for the appellant subject to 60% contributory negligence, and the matter was remitted for assessment of damages.
• Liverpool County Court: HHJ Brown dismissed the claim on 2 May 2003, finding no actionable negligence and that any statutory breaches were non-causative.