This is the first Court of Appeal judgment on the “Height” Regulations. It reinforces the primary point of the Regulations that work at height should be avoided , not just safely organised. It is also a good example of how to argue any claim where the Defendant has to make out a defence of reasonable practicability.
The defendant had bought a garage, in part as new premises for his stock. He scoured the workplace for somewhere to store 20-30 Audi bumper kits. He identified some loft space as the only place to store them.
At trial, the defendant presented himself as conscientious about health and safety. He regularly contacted the local authority about safe practices. To access the loft, he introduced a strict system that usually involved three workers: one to foot the ladder, one to access the loft and one to receive goods passed down. The system was spelled out in great length with instructions how to complete each stage: starting with how to switch the light on in the loft and so on .There was restricted access to the loft to only three members of staff. The Claimant was one of these.
However, on the day of the accident , the claimant entered the loft on his own. No one was footing the ladder. He fell and was injured.
The claimant freely admitted that, had the ladder been footed, then he would probably not have fallen. The defendant effectively argued that was the end of the case: had he followed instructions, no accident could have occurred and the accident was entirely his fault.
The Claimant said this was the wrong way to approach the Regulations.
Regn 6(2) of the Work at Height Regs states:
“Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height.”
The Judge at first instance ruled the first step for him was to decide if working at height at all could, as far as was reasonably practicable, have been avoided. The bumpers could have been stored elsewhere off premises, or sold off at a discount price. To put them in the loft was to maximise income. That was a legitimate business decision but in terms of the Regulations had to be balanced against the fact the defendant also then created a need to work at height .
The classic statement of reasonable practicability defences state a defendant must show a gross disproportion between the trouble caused to them in avoiding a risk and the extent of the risk itself:
“quantum of the risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measure necessary to avert the risk is placed in the other; and that if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice.” ( Edwards v NCB)
The first Judge drew the obvious conclusion when setting the risks of ladder work against storing the bumpers elsewhere:
“to say that, because they had too many goods and that was the only place they could store them and therefore it was not reasonably practicable to carry out the work otherwise than at height, seems to me to be a non-starter.”
The Defendant said on appeal that this ignored the needs for a small business who had devised a perfectly safe way to access some dwindling stock, very occasionally, for a short time. If that were accepted by the Judge the Claimant argued for a safer ladder; a fixed loft ladder.
The Defendant’s primary argument remained that the accident would not have happened but for the Claimant’s stupidity and failing to follow an order which amounted to safe work practice.
The Claimant argued that “it is no answer to say that the accident would have been avoided if the instructions for use of the ladder had been strictly followed. The claimant’s departure from the prescribed practice was precisely the sort of departure invited by the lengthy complex and makeshift system. The very likelihood of such a departure reinforces the need for a safe means of (storage or) access to have been provided”.
The Court of Appeal agreed it was correct to start with the Regulations and not the claimant’s conduct. The hierarchy of regulations stated work at height should first be avoided if possible.
While the Defendant said he had exhausted all other possibilities in searching for storage space, the Court of Appeal agreed with the first Judge that his search was far from exhaustive and indeed he had found space at ground level to store the spoilers after the accident.
So he had not avoided work at height as far as was reasonably practicable and there was a breach of duty of Regulation 6(2). The Claimant’s conduct in failing to follow a safer system for working at height then only went to contributory negligence. The Court of Appeal did not overrule a “generous” one third finding against him.
Inevitably, there will still be cases where a ladder does reasonably have to be used. In that instance, the Court of Appeal also upheld the trial Judge’s finding that, if stock were stored in a loft and work at height could not be avoided, then the risk could be reduced at a cost of a few hundred pounds by installing a fixed pull down loft ladder. The failure to install that, a safer alternative to a movable ladder, was a breach of the requirement of Regulation 7(2) to provide suitable work equipment.
Bhatt v Fontain Motors Limited, (2010) EWCA Civ 863