Taylor v Wincanton Group Ltd

Under regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992, suitability requires a qualitative and prospective assessment. The question is whether, without hindsight, a reasonable employer would have recognised that a traffic route exposed employees to a risk to health or safety.

An accident, or an employee’s misjudgement of an obvious threshold, does not by itself establish that a route was unsuitable. The location, purpose, use and ordinary nature of the structure remain material. A normal gap beneath a portacabin threshold did not, without more, create a recognisable trapping risk or constitute a breach of statutory duty or negligence.

The claimant, a depot team manager, fell while carrying boxes into a portacabin used as a warehouse office. His foot entered an unmarked gap below the raised doorway threshold. He alleged breach of statutory duty and negligence.

HHJ Bullimore in the Doncaster County Court accepted that this was a trapping, rather than a tripping, accident. He held that the traffic route was unsuitable under regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992, because the employer could simply have boarded over and marked the gap. He reduced damages by 50% for contributory negligence.

The employer appealed. The central issue was whether the gap rendered the doorway an unsuitable traffic route because it exposed employees to a foreseeable risk to health or safety.

Appeal allowed. The court held that the employer had not breached regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992 and that the associated negligence claim also failed.

1. Suitability under regulation 12(1) calls for a qualitative assessment. Applying the approach in Palmer v Marks and Spencer PLC [2001] EWCA Civil 1528, the proper question was whether, without the benefit of hindsight, an employer would have recognised that the gap beneath the portacabin entrance exposed employees to a health and safety risk.
2. That inquiry could substantially coincide with the inquiry which a risk assessment would require. The relevance of risk assessment reasoning, as described in Allison v London Underground Ltd [2008] EWCA Civ 71, was to identify what the employer ought previously to have known, rather than to create a separate cause of action.
3. The trial judge had not applied that prospective test. The mere existence of a gap below the threshold of a standard portacabin entrance would not have led an employer to recognise a relevant risk. A contrary conclusion would impermissibly suggest that a gap beneath any threshold or step was unacceptable.
4. The court accepted that health and safety regulation protects employees against the consequences of inadvertence. However, the normality, location, purpose and regular use of this threshold meant that the unfortunate trapping accident did not establish that the traffic route was unsuitable. The claimant's misjudgement explained how the accident occurred but did not transfer responsibility to the employer.

Sedley LJ would allow the appeal. Waller LJ agreed, applying the same prospective inquiry, and the court so ordered.

• Court of Appeal (Civil Division) Allowed the employer's appeal in [2009] EWCA Civ 1581.
• Doncaster County Court (HHJ Bullimore) On 6 April 2009, upheld the claimant's claims for breach of statutory duty and negligence, subject to a 50% reduction for contributory negligence.