Bhatt v Fontain Motors Ltd

The Court of Appeal dismissed the defendant's appeal and upheld the lower court's findings that the employer had breached the Work at Height Regulations 2005. The key breaches were of regulation 6(2) (failure to avoid work at height where reasonably practicable) and regulation 7(2) (failure to select suitable work equipment), with a further finding that the managing director lacked competence under regulation 5. The Court held those breaches exposed the employee to an unacceptable risk and were causative of his fall, although the claimant was found contributorily negligent to the extent of one third.

Background and parties: The claimant, employed as an after-sales assistant, fell from a ladder while retrieving car bumpers stored in a loft above a car showroom. The defendant employer had stored a small number of fibreglass spoilers in the loft after moving premises. The claimant sought damages for personal injury arising from the fall.

Procedural posture: The case came to the Court of Appeal on an appeal by the defendant against a Central London County Court judgment (HHJ Collins CBE) which found for the claimant on liability subject to one-third contributory negligence.

Nature of the claim / relief sought: The claimant sought damages for injury suffered in a fall from a ladder while at work.

Issues framed by the court:

• whether the employer breached the Work at Height Regulations 2005, in particular regulations 6(2) and 7(2) (and regulation 5 as to competence);
• whether any breach causally contributed to the accident; and
• whether the claimant was wholly to blame or contributorily negligent and, if so, to what extent.

Facts and findings below: The employer stored about 20–30 spoilers in the loft and adopted a makeshift multi-step access procedure involving removal of a polystyrene ceiling tile, use of an A-frame and then a long aluminium ladder which was ordinarily not footed. The employer limited loft access to three named employees and the managing director demonstrated the procedure. The trial judge found the managing director was not competent in matters of work at height, that it was reasonably practicable to avoid storing the goods in the loft (regulation 6(2)), and that a fixed pull-down ladder would have been a suitable and feasible option (regulation 7(2)). The judge found those breaches exposed the claimant to unacceptable risk and reduced damages by one third for contributory negligence.

Court of Appeal reasoning: The Court of Appeal began with the hierarchy in the Regulations: avoid work at height where reasonably practicable; otherwise select appropriate equipment and minimise risk. It upheld the trial judge's findings on regulation 6(2) (the employer had not shown it was not reasonably practicable to avoid storage in the loft) and regulation 7(2) (a fixed ladder was a feasible, more suitable option at modest cost). The court accepted that those breaches were causative of the accident and that the claimant's departure from the prescribed but makeshift procedure went to contributory negligence rather than total exculpation of the employer. The court therefore dismissed the appeal.

Other comments: The court observed there had been no previous consideration of these Regulations by this court and discussed the evidential approach to the question of what is "reasonably practicable" and the potential shifting of evidential burden depending on the case circumstances.

Appeal dismissed. The Court of Appeal upheld the lower court's findings that the employer breached the Work at Height Regulations 2005 (notably regulation 6(2) and regulation 7(2)) and that those breaches exposed the claimant to an unacceptable risk causative of his fall; the claimant's failure to follow the prescribed makeshift procedure amounted to contributory negligence assessed at one third.

On appeal from the Central London County Court (His Honour Judge Collins CBE). The Court of Appeal delivered judgment at [2010] EWCA Civ 863 and dismissed the defendant's appeal.