Heeds v Cleveland Police & Anor

Different workplace safety regulations may apply to the same accident, but they should be construed so far as possible to avoid overlapping application. Dangers arising from work equipment fall under the Provision and Use of Work Equipment Regulations 1998, while dangers in the workplace fall under the Workplace (Health, Safety and Welfare) Regulations 1992.

For regulation 18(1) of the Workplace Regulations, suitability requires a qualitative assessment of all relevant circumstances. The court must consider the likelihood and seriousness of potential injury, the extent of any unsuitability, and risks arising from careless or inattentive conduct. The stricter burden-shifting approach in Hide v Steeplechase Company (Cheltenham) Ltd applies to regulation 4(1) of the Equipment Regulations, not regulation 18(1) of the Workplace Regulations.

The appellant, a police officer, was injured when the latch of a secure custody-suite door pivoted and trapped her thumb. She claimed against the Chief Constable and the maintenance contractor in negligence, under the Occupiers Liability Act 1957, and under workplace safety regulations.

At trial, HHJ Belcher dismissed the claims. She held that the Workplace Regulations, rather than the Equipment Regulations, applied to the door, and that there was no breach of regulation 18(1). She also considered, hypothetically, that the Chief Constable would have breached regulation 4(1) of the Equipment Regulations if those Regulations applied.

The appellant appealed. The Chief Constable conceded liability after the court permitted argument on the correct test under regulation 18(1), but maintained a cross-appeal against the maintenance contractor. The central issues were which Regulations applied and what test governed suitability under regulation 18(1).

1. Disposition. By consent, the appellant’s appeal against the Chief Constable succeeded and judgment was entered for £175,000 plus the costs of the action and appeal. The Chief Constable’s cross-appeal against Tascor Services Limited failed.
2. Regulatory overlap. Different statutory regulations can apply to the same circumstances. However, following Mason v Satelcom Limited [2008] EWCA 494, they should be construed, where possible, so that they do not overlap. The custody-suite door was a specialist door, but it remained a door within the scope of the Workplace Regulations. The trial judge was therefore entitled to find that those Regulations applied instead of the Equipment Regulations.
3. Regulation 18(1). The approach in Hide v Steeplechase Company (Cheltenham) Ltd [2013] EWCA Civ 545 is confined to regulation 4(1) of the Equipment Regulations, whose regulation 4(4) definition of suitability reflects article 5(4) of Council Directive 89/391/EEC. It does not govern regulation 18(1) of the Workplace Regulations.
4. Under regulation 18(1), suitability is assessed qualitatively by reference to all relevant circumstances. The court must consider the likelihood and seriousness of the potential injury and the extent of any alleged unsuitability. The test imposes a higher degree of liability than common-law negligence, but foreseeability remains relevant as a real or material risk of possible injury. Careless or inattentive conduct may be taken into account, and an accident caused by a known danger is not excused merely because it occurred in an unforeseeable way.
5. The trial judge’s findings supported the conclusion that the door was suitably constructed. The danger was not obvious, the risk was of low likelihood and severity, and there had been extensive use without comparable injury. The mere potential for harm was insufficient. Neither respondent was liable under regulation 18(1).

• Leeds County Court: HHJ Belcher dismissed the appellant’s claims after trial, holding that the Workplace Regulations applied and that regulation 18(1) had not been breached.
• High Court (Queen’s Bench Division): The appellant’s appeal against the Chief Constable succeeded by consent. The Chief Constable’s cross-appeal against Tascor Services Limited was dismissed.