Johnson v Warburtons LTD

An employer is not automatically negligent because workplace equipment lacks a purpose-built handrail or because no specific training or prior risk assessment was provided. Where the need to take reasonable care is obvious, a trial judge may find that no additional training or risk assessment was necessary. Evidence of sustained accident-free use, absence of user concerns and positive safety assessment may support a finding that equipment is not inherently dangerous. On appeal, such a conclusion will stand unless it is perverse, meaning that no reasonable judge could have reached it on the evidence.

Gary Bryan Johnson, a heavy goods driver employed by Warburtons Limited, suffered an ankle injury while descending steps through the side door of a rigid lorry. He alleged that the steps were inherently unsafe and that Warburtons should have provided training, warnings and a risk assessment. His claim was framed in negligence and breach of statutory duty.

His Honour Judge Armitage QC dismissed the claim in the Manchester County Court on 27 November 2012. Johnson appealed by permission. The central issue was whether the judge’s conclusions that the steps were not inherently dangerous and that no training or risk assessment was required were legally or evidentially unsustainable.

Appeal dismissed. Sir Robin Jacob gave the judgment, with Lord Justice Tomlinson and Lord Justice Moore-Bick agreeing.

1. The claim was essentially one in common law negligence; the pleaded breach of statutory duty added nothing. On an appeal concerning negligence or breach of duty, the appellant had to show that the judgment was perverse, in the special sense that no reasonable judge could have reached it on the evidence.
2. The judge was entitled to find that the lorry steps were not inherently dangerous. Regular delivery drivers used the side doors about 15 times a day. The fleet had contained the steps for about 20 years without a falling accident or recorded user concern. The Health and Safety Executive had inspected the arrangement and treated the side doors and steps as a safety improvement. A first-time user was not in a materially different position, since every regular driver had initially been a first-time user. Evidence that a large transport manager found the steps uncomfortable supported a preference for three steps, not a conclusion of inherent danger.
3. A later working guide did not establish that the flap had to be used as a handhold or that users had to descend backwards. It treated the handhold as optional, subject to securing the flap upright. The judge was therefore entitled to regard the guide as offering no necessary safety instruction beyond the possibility of briefly touching or grasping the flap.
4. The judge was entitled to conclude that negotiating the steps, although not entirely simple, was sufficiently obvious and straightforward that no specific training or risk assessment was needed. That conclusion was not perverse.
5. The claimant remained responsible for establishing negligence or breach of statutory duty. The defendant’s failure to prove positive matters pleaded in support of its general denial did not relieve him of that burden or confine the issues to training and the system usually used by drivers.

• Court of Appeal (Civil Division): dismissed the appeal in [2014] EWCA Civ 258.
• Manchester County Court: His Honour Judge Armitage QC dismissed Johnson’s personal injury claim on 27 November 2012.