Workplace Regulations – strict liability under Reg 5
This was a difficult case involving a trolley stopping dead due to an unknown and unspecified defect on a floor. There had been no previous accidents, no recorded complaints, the client was not absolutely certain what had caused the accident and was unable to reproduce the exact circumstances of the accident at a site inspection.
The claimant was pushing a trolley loaded with aircraft tyres along a gangway. The trolley came to a sudden and unexplained stop. The client was unable to pinpoint exactly what caused the trolley to stop. He thought it was the floor or the wheels or a combination of both. Site inspection and photos revealed the floor to be pitted and uneven – the maximum defect was only 12mm but over a largish area. The trolley would rock backwards and forwards when pushed over the area of pitted concrete. The Judge accepted that the front and back caster wheels could have become stuck in the defect.
The Judge found that there was a breach of Reg 5 of the Workplace Regs as the floor was not “in good repair” and therefore there was strict liability. The defendants tried to argue that reg 5 and reg 12 are incompatible because reg 5 appears to impose a higher strict duty than reg12 and this couldn't have been the intention of the drafters. Reg 12 deals with holes, for example. The Judge accepted that there were "philosophical problems” but still found that reg 5 did impose strict liability. In this case the problem with the floor was a general state of disrepair rather than a specific pothole.
The Judge did not rule on whether there had been a breach of reg 12 because he said it was not necessary because reg 5 imposed strict liability.
The claimant's evidence was preferred over the defendant's alternative hypothesis that he had pushed the trolley into an object, because there were no witnesses. Sarah Gold thinks we were helped by the fact that, although the client wasn't sure exactly how he stopped, he had always been absolutely consistent in his version of events – that the trolley came to a sudden and unexplained halt – and stood up well to some intense cross-examination. She thinks we were also helped by the fact that the defendants changed their evidence from no defect at all to no "significant” defects.
Comment:
this judgement is directly opposite to previous reported first instance decisions in the Law Bulletin on the applicability of Reg 5 and strict liability e.g Knowles -v- Farnborough College of Technology and some Scottish decisions. But it shows the value of using Reg 5 as part of the claimant’s arguments.
It is speculated there would have been quasi-strict liability under reg 12(1) anyway as to the state of the floor if the Judge had felt he had to hear this point (see e.g cases like Drage -v- Grassroots Ltd on Current law for such an approach)
Roche -v- Dunlop, DDJ Mitchell