Burgess v Plymouth City Council

Under Regulation 12(3), a workplace floor or traffic route breaches the statutory duty where it contains an obstruction which may cause a person to fall and it was reasonably practicable to keep the route clear. The provision includes foreseeability but does not impose strict liability. An employee’s failure to see an obvious obstruction, or the fact that she could have moved it, does not eliminate the breach. Those matters are relevant to contributory negligence. Whether tidying the obstruction formed part of the employee’s duties is not determinative where responsibility for safe storage lay elsewhere.

Following a trial on liability only, the county court held that the Council was liable after a cleaner fell over a lunch box container in a classroom. The judge also found the claimant 50 per cent contributorily negligent because the obstruction was large and obvious and she failed to keep a proper lookout. The Council appealed, arguing that the claimant’s duties, the obviousness of the obstruction and the absence of a foreseeable risk defeated liability or required a greater reduction. The central issue was whether the statutory duty had been breached and how the claimant’s conduct affected the result.

1. Disposition. The appeal was dismissed unanimously. The Court found no error in the county court’s conclusion on breach or in its treatment of contributory negligence.
2. Statutory breach. The question whether the claimant was employed to tidy away lunch box containers was not determinative. The operative findings were that the classroom floor or traffic route contained an obstruction which might cause a person to fall, and that it was reasonably practicable to keep the area clear. A system existed under which the containers should have been safely stored, and the evidence showed that responsibility lay with the teacher. The system had failed.
3. Foreseeability and obviousness. Regulation 12(3) includes an element of foreseeability, but the judge had not treated the provision as imposing strict liability. The school knew that containers and other articles might cause accidents if not safely stored. The practical risk was recognised in the observation of Sedley LJ in Anderson v Newton College of Further Education [2002] EWCA Civ 550 that people do not always look where they are going. The container’s size and conspicuousness did not negate the statutory breach.
4. Contributory negligence. The claimant had entered through a door leading directly towards the obstruction. It was reasonable to expect her, for her own safety and to make her work easier, to move it to its usual safe position. Her failure to keep a proper lookout therefore justified a substantial finding of contributory negligence. These matters went to contributory negligence rather than defeating the Council’s breach. The proposed challenge to the 50 per cent apportionment was not pursued; apportionment was a matter of fact and degree primarily for the trial judge.
5. Orders. The appellant was ordered to pay the respondent’s costs. The appeal costs were summarily assessed at £8,800 inclusive of VAT, together with the same percentage of success fee directed by the district judge.

1. Court of Appeal (Civil Division): On 30 December 2005, the Court unanimously dismissed the Council’s appeal and upheld the findings on statutory breach and 50 per cent contributory negligence.
2. County Court: On 20 May 2005, His Honour Judge Anthony Thompson QC, sitting as a Deputy Circuit Judge, found the Council liable under Regulation 12(3) but held the claimant 50 per cent contributorily negligent.