Cockerill v CXK Ltd & Anor

An accident at work does not establish employer or occupier liability without proof of negligent breach of duty and causation. After section 69 of the Enterprise and Regulatory Reform Act 2013, breach of health and safety regulations remains relevant to the content of an employer’s common-law duty, but is not itself actionable. The question is whether reasonable steps were taken in context to protect against reasonably foreseeable harm. An occupier’s duty under section 2 of the Occupiers’ Liability Act 1957 is likewise context-specific. A clearly visible, lit and hazard-marked doorstep in an older building did not require additional warning, spotlighting or tape. The claim therefore failed against both defendants.

The claimant, an employee of CXK Limited, was injured when she fell down a doorstep while visiting premises occupied by Artwise Community Partnership to deliver a presentation. The doorway was open, the step was visible in the kitchen’s ambient light and marked with hazard tape, but signage on the door was not visible.

She alleged that CXK negligently failed to provide a safe system of work and that Artwise breached its duty as occupier. The trial was confined initially to liability, contributory negligence and contribution or indemnity. The central issues were whether either defendant had breached its common-law duty of care and whether any breach had caused the accident.

1. Claim dismissed. The claimant failed to prove that either CXK or Artwise had breached a duty of care owed to her, or that the accident was legally caused by any breach.
2. Section 69 of the Enterprise and Regulatory Reform Act 2013 removed the claimant’s direct cause of action for breach of statutory health and safety regulations, but did not repeal those duties. They remained relevant to the content of the employer’s common-law duty. A regulatory breach would be actionable only if it also amounted to negligence in the circumstances. Not every regulatory breach is negligent.
3. Artwise owed the claimant the common duty under section 2 of the Occupiers’ Liability Act 1957 to take reasonable care in all the circumstances to see that she was reasonably safe. The step was plainly visible, well lit, unobstructed and marked with hazard tape. Its ordinary character in a Victorian community building meant that further tape, spotlighting or a separate warning sign was not reasonably required. Post-accident improvements did not establish an earlier breach.
4. CXK’s common-law duty required reasonable steps to provide a reasonably safe place and system of work, recognising that an employee must go where sent and cannot be held to unreasonable standards of care for her own safety. A suitable and sufficient risk assessment may, in an appropriate short-term hiring context, be addressed by checking and relying on a competent recent assessment made by the occupier. CXK’s reliance on Artwise’s assessment, briefing and tour was reasonable.
5. The suggestion that employers should be liable because they could insure against accidents was rejected. Compensation required proof that the accident was someone else’s negligent fault.