West Sussex County Council v Kim Fuller
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Tomlinson |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWCA Civ 189 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2014/1351 |
| Date | 12 March 2015 |
[2015] EWCA Civ 189
Lord Justice Moore-Bick
Lord Justice Tomlinson
and
Sir Robin Jacob
Case No: B3/2014/1351
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
SITTING AT LEWES
HIS HONOUR JUDGE COLTART
1LS11643
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain O'Donnell (instructed by Mayo Wynne Baxter LLP) for the Appellant
Ian Pennock (instructed by Eatons Solicitors) for the Respondent
Hearing dates: 28 January 2015
In 2008 the Claimant/Respondent Kim Fuller, then Brown, was employed part-time by the Defendant/Appellant West Sussex County Council as an administrative assistant. She was then forty years old and in good health. Her main job was that of receptionist at the Defendant's Haywards Heath Premises at which the local office of its Social Services Department is located.
Until October 2008 one of the Claimant's tasks was to sort incoming mail and to place it into various pigeon holes for collection by those who worked in the ten or so sections of the Department found within the building. It seems that for whatever reason that system did not work efficiently. On 9 October 2008 the Claimant was asked thenceforth to deliver the post to the various areas of the building. She received an email from the office resource manager in the following terms:-
"Kim, Could you please deliver post to all areas of the office from today rather than putting it in the pigeon hole in the management suite. If this means you being away from reception longer than is acceptable, then please call the team clerks/admin to come down and collect it from you. If post arrives during the course of the day via other sources, courier etc., please ask admin to come down and collect. If they are not available then operational staff."
On 12 December 2008 whilst engaged in her relatively new task of delivering post within the building, the Claimant had the misfortune to fall forward on a staircase. She put out her right hand to break her fall and was unlucky enough to injure her wrist. Although she was able to continue at work that day it transpired that she had sprained a ligament.
The Claimant brought proceedings against her employers. She said that at the time she was carrying a large amount of post of both considerable bulk and thus awkwardness and of considerable weight – she estimated about 7 kilograms. She said that this meant that she had to use both hands in order to carry the post so that she could not use either of the handrails, of which there was one on each side of the staircase. She alleged that the bulk of the pile of post she was carrying, including parcels, meant that she could not see where she was walking. She said that, as she was going up the stairs, one foot did not lift off as she was anticipating because of the presence of a sticky patch, most likely to be a piece of chewing gum. Her momentum in going up the stairs carried her forward and she fell forward, was unable to grab a handrail because of the bulk of the post she was carrying, had to put out her right hand to break her fall, and was in consequence injured.
It was agreed that if the claim succeeded the Claimant would be entitled to an award of damages of £6,000. Liability was however denied. The matter came for trial before His Honour Judge Coltart in the Lewes County Court. It is apparent that the Claimant had various grievances concerning the manner in which she alleged that she had been treated by her employers.
The judge heard evidence from the Claimant and from several witnesses who had been in the building that day, including a Mrs Toussaint who, whilst she did not actually see the fall, was very quickly on the scene after the Claimant had got back to her feet.
The judge did not accept the Claimant's account of the accident. Not to put too fine a point on it, he found her account dishonest. The judge found that she was not carrying a large amount of post. She was carrying no large items. There was no mail or post spread about on the staircase as a result of her fall. There was only, if anything, something in one of her hands so that she had had at least one hand free. The judge found that there was no hazard in the form of a sticky patch that caused or contributed to the fall. The judge found that she had simply misjudged her footing, as she had explained at the time to one of her colleagues. This can of course happen to any of us. If an accident of this sort has to be analysed in terms of fault, as for the purposes of attributing liability normally it does, it was entirely the Claimant's fault, as the judge expressly found.
One might have thought that that was the end of the matter. The judge thought that it should have been, but he was nonetheless persuaded, evidently against his better judgment, that the law compelled him to find for the Claimant, and furthermore that he was "prohibited" from making any finding of contributory negligence. This was, he was reluctantly persuaded, a result of the circumstance that the defendant local authority was in breach of its statutory obligation to make a risk assessment of the task to be carried out by the Claimant in distributing post around the building, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The judge's instinctive reaction was that the argument presented to him, which he was invited to accept, was "health and safety gone mad". He was however persuaded that he had no option but to accede to it. It is a measure of his lack of enthusiasm for this outcome that having pronounced it he immediately asked Counsel for the Defendant if he wanted permission to appeal, and granted it without waiting to hear whether that course was opposed. Hence this appeal.
It is common ground that the Defendant owed to the Claimant the duties set out in Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 4 of the Manual Handling Operations Regulations 1992. They provide, so far as relevant:-
" 3 Risk assessment
(1) Every employer shall make a suitable and sufficient assessment of—
a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; …
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions….
4 Duties of employers
(1) Each employer shall—
a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—
i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and
iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on—
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally."
No risk assessment was produced by the Defendant, nor did it attempt to show that it had taken appropriate steps to reduce to the lowest level reasonably practicable the risk of injury to the Claimant arising out of her distribution of the post within the building. No instructions over and above the email set out at paragraph 3 above were given to the Claimant in relation to how she should carry out that task. It was Mr Pennock's submission, both before the Judge and before us, that whilst in order to found liability pursuant to a breach of Regulation 3 of the 1999 Regulations a Claimant must prove that the breach was causative of his injury, under Regulation 4 of the 1992 Regulations there is no such requirement. I did not find Mr Pennock's submissions entirely consistent or easy to follow, but I think that his submission was that it was for the Defendant to prove that its breach of Regulation 4 did not cause the accident, and that the only way that that could be done was by showing that it had taken appropriate steps to reduce to the lowest level practicable the risk of injury to the Claimant arising out of this post distribution operation.
It was put to Mr Pennock by the Court in the course of argument that surely the defendant in such circumstances can point to the fact that the cause of the accident had nothing to do with the risks generated by the operation in question, as here, where the Claimant had simply had the misfortune to misjudge her footing, as anyone can do when ascending a staircase. Mr Pennock contended that the judge had made a finding that precluded that approach. He relied on what the judge said at paragraph 18 of his judgment:-
"Had the defendants carried out a risk assessment and come to the conclusion that there was no risk that needed any further action, that would have in all probability have been sufficient for me to have absolved them from...
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