Ammah v Kuehne+Nagal Logistics Ltd

An employer’s duty to provide a reasonably safe system of work may require a specific warning against an obvious risk. A rare unsafe practice, or a general instruction to use equipment only for its intended purpose, does not necessarily discharge that duty. The question is whether the circumstances required a specific instruction and whether an adequate instruction was given. Where suitable access equipment is available and employees are instructed to use it and not to stand on boxes, the employer may satisfy its duty even if an employee occasionally ignores the instruction. Liability does not follow merely because an accident occurs.

The appellant was injured at work after standing on an overturned tote box to reach an upper shelf. He alleged that his employer had failed to provide a safe system of work by not specifically warning employees against standing on boxes. The Oxford County Court dismissed the claim, finding that the accident was the appellant’s own fault and that suitable equipment and general safety instructions were available.

The appeal concerned whether a specific warning was required despite the obviousness and rarity of the risk, and whether the evidence established that such a warning had been given.

Lord Justice Richards gave the reasons for judgment. Lord Justices Aikens and Ward agreed.

1. Duty to warn. An employer may be required to warn employees against an obvious workplace risk. The employer’s duty to provide a reasonably safe system of work is not automatically discharged because employees are experienced or might appreciate the danger. The court applied the principle stated in General Cleaning Contractors Ltd v Christmas [1953] AC 180.
2. Obviousness and frequency. Some dangers may be so obvious that no instruction is required, but that was not the position here. A warning was required against standing on a box, even though the practice was found to be very rare.
3. Insufficiency of general guidance. The employee handbook’s general instruction not to use equipment other than for its intended purpose was insufficient to discharge the specific warning duty. The department’s written safe-working procedure could not itself be relied upon because the evidence did not establish that the appellant had seen it.
4. Compliance in this case. The court nevertheless found that the employer had discharged its duty. Suitable equipment was available, including a man-riser, portable steps and a forklift truck. The accepted evidence showed that employees were instructed to use that equipment and not to stand on boxes. The occasional occurrence of the unsafe practice did not make it common or condoned.
5. Appellate assessment. Although the trial judge had not made a specific finding on the warning issue, the Court of Appeal was able to reach its own conclusion from the full transcript and the trial judge’s credibility findings. The appeal was dismissed, although for different reasons from those given below.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 11, the appeal was dismissed.
• Oxford County Court: His Honour Judge Charles Harris QC dismissed the appellant’s claim for damages for breach of the employer’s duty to provide a safe system of work.