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Claimant in a jam as breach of duty claim comes to a sticky end

Orzechowska v ABF PLC (t/a Speedibake) (2014)
QBD
26/2/14

The duty on an employer under regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992, to keep floors free from obstruction relates to foreseeable hazards created by objects and substances which would not otherwise be there and not permanent structures or plant. So held Justice Coulson in the case of Orzechowska v ABF PLC (t/a Speedibake) (2014). Liz Harrison looks at this case, in which the court held that a pipe in a bakery did not present a real tripping risk.

Background

Regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992 imposes a duty upon employers to ensure, so far as is reasonably practicable, that:

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

All previous case law on breach of this regulation relates to cases where injuries had been sustained due to the presence on the floor of substances or objects which should not otherwise have been there. In this case the Claimant sought to extend the duty under the regulations so as to include permanent fixtures or plant.

Facts

The Claimant was employed in the Defendant’s bakery. She was sitting on a chair on a production line placing muffins onto a conveyor belt. She was injured when she stepped away from the chair and fell against or tripped over a pipe. The pipe was used to carry jam from a tank to a nozzle from where it was inserted into the muffins. The pipe was 1 metre away from the claimant’s chair, it was about 18 inches off the ground and 6 inches in diameter. It had always been there and was a permanent fixture in the bakery. 

Hearing the case at Bradford County Court on 8 March 2013, HHJ Bartfield dismissed the claim, finding that the Claimant stepped outside the area she needed to be in “for no good reason…and collided with a very straightforward object that was right in front of her”.  The Claimant was the author of her own misfortune.

The Claimant appealed on the basis that the Judge had been wrong in law to find that the pipe was not an obstruction.

Findings

On appeal, Coulson J upheld the lower court’s decision and analysed in more detail the important considerations when dealing with the regulation.  There are two questions to be asked he concluded:

  • Was there an obstruction; and

  • Was it reasonably practicable to do anything to reduce or eliminate the risk

In this case the Court was only concerned with the first question.  Coulson J considered that both foreseeability and the nature of the obstruction then needed to be considered when determining if something was an obstruction.

On foreseeability, following McGhee v Strathclyde Fire Brigade [2002] SLT 680, the court clarified that the question was not what was “reasonably foreseeable” but the narrower point of whether the obstruction “may” cause someone to slip, trip or fall.

On the nature of the obstruction, Coulson J noted that all the cases cited, involved obstructions or substances which should not have otherwise been on the floor or which gave rise to unsatisfactory (and often temporary) conditions, such as instances where polish or dust had made the floor slippery, or where an otherwise innocuous object such as a box or a moveable whiteboard had been positioned in such as way as to create a tripping hazard.

The Judge was satisfied that the pipe was of such a size and positioned in such a way from the Claimant’s chair that it did not present a “real risk of tripping” applying the foreseeability test outlined in McGhee. The Claimant could have only tripped over had she been where she should not.  Secondly, and of importance to practitioners, the Judge expressed that the view that the regulations were not designed to address objects that were permanent and part of the plant.

Comment

  • The Claimant faced an uphill struggle in seeking to extend the application of regulation 12 to a permanent fixture such as, in this case, a pipe which on the facts could not have been considered a risk as it was so big and obvious.

  • The clarification that regulation 12 applies only objects or substances which should not otherwise be on the floor and not to permanent fixtures is very helpful and will assist in the defence of some of the more spurious workplace tripping and slipping claims which are presented.

  • Although the first instance decision was upheld, the trial Judge was criticised for implying that the Claimant should have seen the pipe and was, therefore, at fault. This was not the correct test to apply when considering breach of the regulations but would likely have been fatal to the claim if it had been brought solely on the basis of breach of common law duty.

  • There may be an element of a public policy reasoning behind this welcome “common sense” decision:

    • It is consistent with the government’s approach of lifting what some perceive to be an unnecessarily onerous health and safety burden on employers, seen most notably with the introduction of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) which removes civil liability for breach of regulations for accidents occurring after October 2013.

    • As Coulson J noted, the jam pipe would be in the same category of permanent structure or plant as the wall of the factory or the machinery in it and they could not be said to be obstructions; one can only imagine the sorts of claims which may have been presented had the decision gone the other way.

Contact

Liz Harrison, Associate on 151 907 3419 or at liz.harrison@dwf.co.uk

By Liz Harrison

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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