Burrows v Northumbrian Water Ltd

Under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992, the employer bears the burden of proving that it has done what is reasonably practicable to keep a traffic route free from substances capable of causing slips or falls. The assessment is practical and must consider the safety consequences of the proposed precaution. Measures which require employees themselves to enter an icy area may provide no safety gain and may increase exposure to the risk. Under regulation 5(1), occasional snow and ice on a relatively remote access road does not, without more, establish a failure to maintain the workplace in an efficient state, in efficient working order and in good repair.

The appellant was injured when he slipped on ice while attending an unmanned reservoir during the course of his employment with the respondent. He claimed damages for negligence and breach of the Workplace (Health, Safety and Welfare) Regulations 1992, including regulations 12(3) and 5(1).

The county court dismissed the claim. The appeal challenged only the rejection of the black ice claim under the Workplace Regulations. The issues included whether the respondent had established the reasonable practicability defence under regulation 12(3), whether the appellant had adequate notice and opportunity to respond, and whether regulation 5(1) applied to snow and ice on the access road.

The appeal was dismissed.

1. Regulation 12(3). It was common ground that the access road was a traffic route, that the ice was capable of causing a person to slip or fall, and that the respondent bore the burden of establishing the reasonable practicability defence. The respondent’s pleaded case sufficiently asserted that it had taken all reasonably practicable steps.
2. The absence of specific pleading concerning each suggested precaution caused no prejudice. The relevant question was whether the appellant had adequate notice and opportunity to address the defence. The alleged precautions could properly be assessed collectively where their underlying reasoning was the same.
3. The judge was entitled to conclude that clearing the whole road would require at least daily access, despite unpredictable emergency visits and light, irregular footfall. Employees undertaking the proposed gritting, clearing or inspection would themselves face the risk of ice. The measures therefore offered no safety gain and could increase exposure to the hazard. The reasonable practicability defence was established.
4. The judge’s failure expressly to mention that the burden of proof rested on the respondent was immaterial because her conclusion did not turn on the burden of proof.
5. Regulation 5(1). The relevant workplace was the access road. Even assuming that snow had remained there longer than elsewhere and that the area around the gate was hazardous, the evidence showed only an occasional hazard, not a road on which snow and ice were a regular feature. That was insufficient to establish a failure of maintenance under regulation 5(1).
6. The parties’ agreed meaning of efficient, namely efficient from the viewpoint of health, safety and welfare, provided an additional reason why the regulation 5(1) claim could not succeed: the proposed measures would not improve safety.

• High Court (Queen's Bench Division): on appeal from Middlesbrough County Court, the appeal was dismissed.
• Middlesbrough County Court: Her Honour Judge Matthews QC dismissed the claim on 3 December 2013.