Orzechowska v ABF Plc (t/a Speedibake)

Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 involves two stages. The court must first ask whether an object or substance was an obstruction which may cause a person to slip, trip or fall. That inquiry includes a limited measure of anticipation or foreseeability. If the first stage is satisfied, foreseeability does not govern the separate question of what precautions were reasonably practicable.

The provision is directed principally to objects or substances which should not have been on the workplace floor, or which were left in a dangerous position or condition. Permanent, obvious plant does not ordinarily constitute an obstruction where it presents no real risk of tripping in the area where employees should be.

The appellant claimed damages after falling against or tripping over a permanent jam pipe at the respondent’s bakery. The claim relied on regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

HHJ Bartfield dismissed the claim at Bradford County Court. The appellant appealed, contending that the judge had erred in law by finding that the pipe was not an obstruction. The central issue was whether, on the findings of fact, the pipe fell within regulation 12(3).

1. Appeal dismissed. The reference to the judge’s discretion was erroneous. Whether the pipe was an obstruction was a matter of fact or mixed fact and law. The appellant could not challenge factual findings which were open to the trial judge on the evidence.
2. Regulation 12(3) involves a two-stage process: first, whether there was an obstruction, article or substance which may cause a person to slip, trip or fall; and secondly, if so, whether it was reasonably practicable to reduce or eliminate the risk. The present appeal concerned only the first stage.
3. The first stage includes a limited measure of anticipation, or foreseeability, as reflected in the word “may”. It requires consideration of whether the object presented a real risk that someone might trip. This does not introduce wider questions of reasonable foreseeability. Once the first stage is satisfied, questions of foreseeability do not determine the reasonably practicable defence.
4. The authorities concerned objects or substances which should not otherwise have been on the floor, or which were left in an unsuitable position or condition. The permanent jam pipe was part of the plant, had always occupied the same position, and was large, obvious and remote from the place where the appellant should have been. It did not present a real risk of tripping and was not an obstruction within regulation 12(3).
5. The trial judge’s reasoning could have been expressed more clearly. It would have been wrong to reject the claim merely because the appellant should have seen the pipe or was at fault. Properly analysed, however, his findings established that the pipe did not trigger the regulation. On those findings, he was entitled, and indeed bound, to dismiss the claim.

• High Court (Queen’s Bench Division): On 26 February 2014, Coulson J dismissed the appeal from the decision of HHJ Bartfield at Bradford County Court.
• Bradford County Court: On 8 March 2013, HHJ Bartfield dismissed the personal injury claim.
• Permission to appeal: Supperstone J granted permission on 18 October 2013.