Anderson v Newham College of Further Education
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY |
| Judgment Date | 25 March 2002 |
| Neutral Citation | [2002] EWCA Civ 505 |
| Docket Number | B3/2001/1342 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 2002 |
[2002] EWCA Civ 505
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Sedley and
Sir Denis Henry
B3/2001/1342
MR S SNOWDEN (instructed by Barlow Lyde & Gilbert, London EC3A 7NJ) appeared on behalf of the Appellant
MR M NICHOLSON (instructed by Pattinson & Brewer, London WC1N 3HA) appeared on behalf of the Respondent
Monday, 25th March 2002
The respondent and cross-appellant, Mr Anderson, worked for the appellant institution. He suffered two nasty fractures at work when he sustained a fall. The circumstances are described clearly and briefly by His Honour Judge Rich QC, who tried this action on liability only at the Central London County Court on 4th June 2001, and who gave judgment for the claimant for 10 per cent of the damages to which he would have been entitled.
The judge said this:
"On 15th February 1997 the claimant, who was employed by the defendant as a mobile site supervisor, was called into the Newham College of Further Education in order to deal with a failure or allow entry to an engineer to deal with a failure in the internal security systems. Whilst there, he checked the premises and entered one particular classroom where he observed that there was a broken window. The broken window was in the left-hand wall as he entered the room from the door, which was placed at the extreme end of the wall adjacent to that in which the broken window was observed. The main light to the room was provided by a series of windows in the wall opposite to the door and the claimant thought it necessary whilst going to inspect the observed broken window to look out also in case other windows had also been broken.
The room into which he entered was a well-lit, roughly square room some 24 feet in each direction, although precise measurements have not been provided to the court. It was laid out as a classroom with a series of tables or desks ranged around a hollow square facing towards the wall in which the door was positioned. Thus, as it were, the teaching end of the room was between the door and the window to which the claimant wished to go. It is accepted on his behalf that there was ample room for him to pass between the furniture required for the teaching end of the room and the students' tables in the body of the room. However, there was ranged against the wall amongst the teaching furniture a frame containing a white board, whose dimentions and arrangement I must describe in some detail shortly. A similar piece of furniture has been brought into the court for my inspection. Suffice it to say for the moment that the claimant tripped over the horizontal support of this frame and in doing so caused himself some serious injury…"
The apparatus in question shares with the camel and the umbrella the characteristic of being easier to recognise than to describe. Essentially, however (and we have seen photographs), it is simply a standing frame fixed to the ends of two long wheeled feet and canted backwards, with the white-board secured to it. The top of the frame, which stands about 6' 6" high, comes well short of the reach of the feet, so that in side elevation it resembles an italic capital L. The result is that if the board on its frame is properly placed with its exposed feet pointing towards the wall, the apparatus can be expected to alert passers by to its presence and position and enable them to pass it in safety. If it is stood the other way round (as it was on the judge's findings), there are two long feet, each of them some 2' in length, sticking into the gangway, elevated on wheels and creating a very obvious tripping hazard. It is indeed the obviousness of the hazard on which each party relies in the present case.
The judge held that there was no negligence at common law but that there had been a breach of Regulation 12(3) of the Workplace (Health Safety and Welfare) Regulations 1992. This provides in its material part:
"So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."
Although the judge considered the claimant to blame for not seeing and avoiding the hazard, he considered that on principle contributory negligence could not rob him of the entirety of his damages, but held him 90 per cent to blame. He gave both parties unrestricted permission to appeal. If we uphold the finding of breach of statutory duty Mr Nicholson, for the claimant, does not press his appeal against the dismissal of the claim in negligence at common law. Instead, he relies on the finding of breach of statutory duty to roll back the apportionment of contributory negligence.
The first argument of the appellant defendants goes to liability. It is that "an article which may cause a person to trip" is a description of the article itself, irrespective of its location. I have attempted in vain to grapple with and come to terms with this concept. In spite of an invitation to do so, Mr Snowdon, for the appellant, has been unable to give a single illustration of an article which is a tripping hazard wherever it is.
It seems too obvious to require statement that an object may be either in a safe or an unsafe place, and that it is only when it is in the latter that it constitutes a tripping hazard. The entire point of the regulation is to keep floors and passageways clear of obstructions and tripping hazards. The reason, which is equally important, is that people do not always look where they are going.
Nothing was simpler or therefore more reasonably practicable than to have turned the frame through 180 degrees so as to point its feet to the wall. The judge was therefore entirely right, in my judgment, to hold that there had been a breach of statutory duty. The important issue is whether, as the appellant next asserts, the judge ought to have followed through the logic of his findings and found the claimant either 100 per cent contributorily negligent or, in the alternative, solely at fault for the occurrence of the accident. If Mr Snowdon fails in this Mr Nicholson in turn submits that the apportionment of contributory negligence at 90 per cent is too high and that this is, on the judge's findings, a 50/50 case.
The principal basis upon which Mr Snowdon submits that the judge should have pursued the logic of his findings (to which I will come later in this judgment) to the point of finding 100 per cent contributory negligence, is the decision of this court in Jayes v IMI (Kynoch) Ltd [1985] ICR 155. The headnote of that decision reads:
"The plaintiff, a most experienced supervisor at the defendants' factory, called in two fitters to deal with a fault which had developed in a power press machine. The guard was removed from the working part of the machine, including the moving belt, and the fitters tried to remedy the trouble which involved a lubrication problem. The machine was started for testing purposes. While the machine was in motion the plaintiff took a piece of rag in order to stop grease from spreading from the pulley on to the belt but the rag became caught and the plaintiff's right index finger was pulled into the machine. He suffered a partial amputation of the finger.
The plaintiff claimed damages for breach of the duty to fence a dangerous part of the machinery imposed by section 14 of the Factories Act 1961 and claimed that the defendants had not complied with regulation 5(a) and (d) of the Operations at Unfenced Machinery Regulations 1938. At the trial of his action the plaintiff admitted that what he had done was a very foolish thing to do. Macpherson J assumed that there was a breach of statutory duty by the defendants but held that the accident was entirely the fault of the plaintiff and gave judgment for the defendants.
On appeal by the plaintiff:—
Held, dismissing the appeal that there was no principle of law which required that even where there was a breach of statutory duty in circumstances where the intention of the statute was to provide protection against folly on the part of a workman there could not be a case of 100 per cent contributory negligence on the part of the workman; and that, accordingly, the judge had been entitled to conclude on the facts that the fault was entirely that of the plaintiff.
Per curiam. There comes a point where the degree of fault is so great that the court ceases to make fine distinctions and to hold that, in practical terms, the fault is entirely that of the workman."
The leading judgment was delivered ex tempore by Robert Goff LJ, as he then was. I will quote the material part of his judgment, with which the other two members of the court, Oliver LJ and Sir John Donaldson MR, agreed without adding anything.
"Before this court Mr May [for the appellant] has made two submissions. He submitted that in a case of this kind where there has been a breach of statutory duty—a breach of the duty to fence the machine—one of the principal purposes of fencing machinery is to guard against the possibility of someone committing an act of folly and, in those circumstances, it is quite inappropriate to hold that a workman is guilty of 100 per cent contributory negligence. In such a case as this, there may well be fault on both sides, but there must be some degree of fault on the part of the employer which is sufficient to enable the employee,...
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