Michael James v EA Shaw

An employer may be liable in negligence where an employee is required to undertake work at height using an unsafe system. Where the task presents an obvious risk of falling, the employer must either avoid requiring the task or provide suitable fall protection.

A breach of statutory duty under the Work at Height Regulations 2005 does not, by itself, create a cause of action for an accident occurring after section 69 of the Enterprise and Regulatory Reform Act 2013. The statutory duties may nevertheless inform the common-law duty of care.

Although employees must take reasonable care for their own safety, contributory negligence is fact-sensitive. No deduction was appropriate where the employee had no formal training and acted in response to his employer’s request while the employer was itself working in breach of the Regulations.

The claimant, a general labourer employed by the defendant fairground operator, suffered serious foot injuries after falling from a fairground ride while helping to loosen a seized bolt during dismantling operations.

The central factual dispute was whether the claimant acted alone in defiance of an instruction, or whether he assisted the defendant’s senior manager at the manager’s request. The court accepted the claimant’s account.

The issues were whether the defendant was liable in negligence and/or under the Work at Height Regulations 2005, and whether any damages should be reduced for contributory negligence.

1. Liability. The court found that the claimant was assisting Asa Shaw in loosening a bolt while both stood on a wet metal handrail approximately 15 to 20 feet above the ground. The arrangement involved a 55mm open-ended spanner and a scaffolding pole used as a lever.
2. The system of work was unsafe. The claimant should not have been asked to perform the task because it was foreseeably dangerous. Alternatively, if he was to perform it, he should have been provided with a harness or other fall-protection mechanism because the risk of falling and serious injury was obvious.
3. The task was work to which the Work at Height Regulations 2005 applied. The method adopted breached regulations 4(1), 4(3) and 6(3). Following Chadwick v Ovenden [2022] EWHC 1701 (QB), the breach did not constitute an independent cause of action, but the statutory duties informed the common-law duty of care.
4. Contributory negligence. The claimant owed a general duty to take reasonable care for his own safety. However, the court had to consider the particular circumstances, including the absence of formal health and safety training, the claimant’s response to a positive request from his employer, and the employer’s active participation in conduct contrary to the Regulations. A deduction under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 was therefore unjustified.
5. The court entered judgment for the claimant, with damages to be assessed.