Caerphilly County Borough Council v Button

An employer’s common-law duty is assessed against the workplace as it was actually used. A route may present a foreseeable risk even where an alternative route exists and the alleged hazard includes an ordinary feature, such as a kerb, if the surrounding ground affects footing. The absence of previous accidents or complaints is relevant but not decisive. The assessment must be made without hindsight, having regard to context, likelihood and potential seriousness of injury, and the normality of the structure. An employer in control of premises cannot lower its standard of care merely because it is a tenant. The court also held, as an alternative, that the route was unsuitable under the Workplace (Health, Safety and Welfare) Regulations 1992; regulation 5 added nothing.

Caerphilly County Borough Council appealed against the judgment of HHJ Curran QC at Cardiff County Court on 17 May 2010. The judge awarded the respondent damages, subject to liability, after she tripped while crossing an earthen verge between a car park and her workplace, catching her foot on a kerbstone approximately three inches high.

The judge found common-law negligence and breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, subject to 20 per cent contributory negligence. The appeal concerned foreseeability, the condition and use of the verge, the meaning of traffic route and suitable surface, the Council’s control as tenant, and the applicability of regulation 5. The court also considered the procedural decision not to hear oral closing submissions.

The appeal was dismissed. The judgment for the respondent, including the finding of 20 per cent contributory negligence, stood.

1. Common-law negligence. The relevant question was whether the access route, assessed without hindsight and in its actual context, presented a foreseeable risk which the employer had failed reasonably to address. The condition had to be considered as a whole. The ordinary kerbstone stood at the top of a slight gradient, where the earth affected the footing. This was materially different from an ordinary kerb encountered when parking. The absence of previous accidents or complaints was relevant but did not prevent a finding of breach. Failing to take measures to deal with the slope and kerbstone fell below the required standard of care.
2. Regulation 12. The court took a broad approach to “traffic route”. A verge regularly used by employees to travel between a car park and workplace could qualify, even though a longer alternative route existed. The suitability test was closely analogous to the common-law test. On the facts, the route was unsuitable and regulation 12 was breached. Possible remedial measures were relevant to assessing breach, but the court did not decide that one particular measure was mandatory.
3. Regulation 5 and control. Regulation 5 was directed principally to equipment, devices and systems. Applying its requirements concerning efficient state and working order to this tripping claim would be strained, and regulation 5 added nothing where regulation 12 did not apply. The Council’s status as tenant did not reduce its common-law duty. The Master of the Rolls considered that, save in unusual circumstances, a tenant is in control for regulations 5 and 12; the effect of lease covenants and Part I of the Landlord and Tenant Act 1927 was left undecided.
4. Oral submissions. Oral submissions are an important part of the justice system. Dispensing with them where a party objects should occur only with the parties’ agreement or in exceptional circumstances. The procedural error caused no prejudice here and was not a ground of appeal.

• Court of Appeal (Civil Division) — Appeal dismissed for the reasons given by Pill LJ, with which Richards LJ and Lord Neuberger MR agreed: [2010] EWCA Civ 1311.
• Cardiff County Court — HHJ Curran QC gave judgment for the respondent on 17 May 2010, finding common-law negligence and breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, subject to 20 per cent contributory negligence.