Home Office v Lowles

Under regulations 12(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992, suitability and obstruction are assessed contextually. The court considers the nature and extent of the physical feature, the consequential risk, the persons exposed and the circumstances existing before the accident. A warning sign is relevant but does not necessarily discharge the employer’s regulatory duty. A threshold may constitute an obstruction capable of causing a trip. Appellate courts should not interfere with evaluative findings or apportionments of contributory negligence unless there is an error of principle, irrelevant or omitted factors, or plain wrongness.

Mrs Lowles, an instructional officer at Armley Prison, was injured when she tripped on an unmarked raised threshold at the entrance to a security portacabin. The Home Office had placed a warning sign above the door.

Leeds County Court, by judgment dated 20 January 2004, found the Home Office liable under the Workplace (Health, Safety and Welfare) Regulations 1992 and in common-law negligence, but found Mrs Lowles 50% contributorily negligent.

The Home Office appealed against liability. Mrs Lowles cross-appealed against the finding and apportionment of contributory negligence. The central issues were whether the threshold made the traffic route unsuitable or constituted an obstruction, and whether the Recorder’s evaluative findings should be disturbed on appeal.

Both the appeal and the cross-appeal were dismissed. Lord Justice Mance gave the principal judgment. Lord Justice Wall and Mr Justice Buckley agreed.

1. The Recorder was entitled to find a breach of regulation 12(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. Suitability had to be assessed from a health-and-safety perspective and in context. Relevant factors included the unusual intermediate height of the step, its position at the top of a ramp, the possibility that attention would be diverted towards the security window, the absence of any apparent reason for the threshold, the warning sign and the previous accident-free use.
2. The approach in Marks and Spencer plc v. Palmer [2001] EWCA 1528 was applied. A small, obvious weather strip at a shop exit, known to the claimant and situated above steps, was materially different from the threshold in the present case. The warning sign did not itself discharge the regulatory duty.
3. Under regulation 12(3), whether a feature was an obstruction capable of causing a person to slip, trip or fall required a similar contextual assessment of the nature and extent of the feature and the risk it presented. The Recorder was entitled to treat the unexpected threshold as an obstruction. The Home Office had not shown any good reason why it could not have been removed, avoided, reduced or highlighted. A new argument based on the design of the outer door could not be raised for the first time on appeal.
4. The finding of common-law negligence was also open to the Recorder. The warning sign did not make the conclusion of foreseeability and breach impermissible.
5. Following the appellate approach stated in Assicurazioni Generali SpA v. Arab Insurance Group [2002] EWCA 1642; [2003] 1 WLR 577, the Court of Appeal would not substitute its own assessment unless the Recorder had erred in principle, considered irrelevant matters, omitted relevant matters or was plainly wrong. That restraint applied both to liability and to the 50% apportionment for contributory negligence. The Recorder’s assessment was carefully reasoned and was not open to interference.

1. Court of Appeal (Civil Division): dismissed the Home Office’s appeal against liability and Mrs Lowles’s cross-appeal against the finding of 50% contributory negligence.
2. Leeds County Court: the Recorder gave judgment for Mrs Lowles on liability on 20 January 2004, but held her 50% contributorily negligent. The order was amended on 27 March 2004.