Walsh v CP Hart & Sons Ltd

For a statutory duty expressed in terms of reasonable practicability, an employer must take a practicable safety measure unless the sacrifice involved would be grossly disproportionate to the risk. A mere balancing exercise is insufficient. The assessment must address the properly identified risk, including the potential severity of injury, and must be made before the accident. An employer bears the ultimate burden of proving lack of reasonable practicability. A claimant should identify proposed measures, particularly where they are not obvious, so that the employer has a fair opportunity to address them in evidence.

The claimant appealed against the dismissal of his claim by HHJ Simpkiss in the Dartford County Court. He had suffered serious head injuries after falling from the rear of a box van while delivering goods for his employer. The appeal concerned alleged breaches of the Work at Height Regulations 2005, the Provision and Use of Work Equipment Regulations 1998 and common-law negligence.

The principal issues were whether the employer had properly assessed the risk of falling from the vehicle load bed; whether it was reasonably practicable to require the tail lift to remain raised while employees were in the van; the allocation of the burden of proof; and contributory negligence.

1. The appeal was allowed. The claimant was awarded judgment subject to a 50% deduction for contributory negligence.
2. Under CPR 52.21, the appeal involved a review of the lower court’s decision, with appropriate respect for findings of primary fact and evaluative decisions. The judge had nevertheless misdirected himself on the legal test and overlooked material features of the risk assessment.
3. Regulations 6(3) and 6(5) of the Work at Height Regulations 2005 were central. The employer had failed properly to assess the risk of falling from the load bed after it had been accessed. Its documentation treated a different access risk as low, while its own assessment of working at height and tail-lift operations identified a high risk because of the potential for serious injury.
4. The proper test of reasonable practicability, derived from Coltness Iron Company Ltd v Sharp, Edwards v National Coal Board and Marshall v Gotham Co Ltd, requires a practicable precaution to be taken unless the time, trouble and expense would be grossly or substantially disproportionate to the risk. The approach in the Court of Appeal decision in Baker v Quantum Clothing Group Ltd was preferred to the mere balancing approach relied upon by the lower court.
5. Requiring the tail lift to remain raised while employees worked or remained in the rear of the van was a suitable and reasonably practicable measure. The alternative risk to pedestrians was speculative and could have been addressed by warnings. The absence of previous accidents did not remove the employer’s duty to address an identifiable high-risk activity.
6. The judge was right that, save for clear and obvious measures, a claimant should identify proposed precautions sufficiently early to allow the defendant to respond. Measures first raised in cross-examination, such as floor markings or hard hats, could fairly be rejected.
7. Contributory negligence was assessed at 50%, having regard to the claimant’s experience and knowledge of the obvious danger, balanced against the employer’s continuing breach of a safety regulation intended to protect employees against their own lack of care.

• High Court (Queen’s Bench Division): appeal from the dismissal of the claim by HHJ Simpkiss in the Dartford County Court on 5 March 2019; appeal allowed and judgment entered for the claimant subject to a 50% deduction.