Bhatt v Fontain Motors Ltd

Work at height must be avoided where it is reasonably practicable to perform the work safely otherwise. If it cannot be avoided, the employer must select equipment appropriate to the work and otherwise most suitable, taking account of the risks and consequences of a fall. An employee’s failure to follow a prescribed safety procedure does not make the employee wholly responsible where the employer’s breach exposed the employee to a risk which the Work at Height Regulations 2005 were intended to prevent. It may amount to contributory negligence. The evidential burden concerning reasonable practicability may shift as the evidence unfolds, although that issue was not necessary to the decision.

The claimant, an after-sales assistant, fell from a ladder while retrieving car spoilers stored in a loft at his employer’s premises. The trial judge found breaches of regulations 5, 6(2) and 7(2), held them causative, and reduced damages by one-third for contributory negligence. The employer appealed against liability, arguing that the claimant’s failure to wait for the ladder to be footed made him wholly to blame and challenging the evidential foundation for the regulatory breaches. The central issues were whether retrieval should have been avoided as work at height, whether the ladder was suitable, and whether the claimant’s departure from the prescribed system defeated causation.

1. The appeal was dismissed unanimously. Richards LJ delivered the leading judgment. Sullivan LJ agreed, and Sedley LJ agreed while adding observations on the burden of proof.
2. The court began with the hierarchy in the Work at Height Regulations 2005. Work at height had to be avoided where it was reasonably practicable to carry out the work safely otherwise. If it could not be avoided, the risks had to be minimised through appropriate work equipment and other measures.
3. Under regulation 6(2), reasonable practicability involved weighing the quantum of risk against the sacrifice, whether in money, time or trouble, required to avert it. The judge was entitled to find that storing the spoilers elsewhere, or selling them at the outset, was reasonably practicable. The evidence that other storage possibilities had been exhausted was inconclusive, and the defendant had subsequently stored the remaining spoilers elsewhere.
4. The judge was also entitled to find a breach of regulation 7(2). A fixed pull-down ladder was available and was unlikely to have cost more than a few hundred pounds. The movable ladder was therefore not appropriate to the work or otherwise the most suitable equipment. The finding concerned regulation 7(2), rather than regulation 7(1).
5. The breaches exposed the claimant to a risk to which he should not have been exposed. The fact that the accident would probably have been avoided if the prescribed system had been followed did not make the claimant wholly to blame. His failure to wait for the ladder to be footed went to contributory negligence. The existing one-third reduction was not challenged and was not disturbed.
6. Sedley LJ observed that there might be no fixed allocation of the burden of proof on reasonable practicability. Depending on the evidence, the burden might shift as the case unfolded. This was an additional observation and was not necessary to the result.

• Court of Appeal (Civil Division): Appeal against the Central London County Court’s order dismissed unanimously in [2010] EWCA Civ 863.
• Central London County Court: HHJ Collins CBE found the defendant liable, subject to a one-third reduction for contributory negligence. No citation for the order is stated in the judgment.