Case No: B3/2009/2177
Neutral Citation Number: [2010] EWCA Civ 863
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
THE CENTRAL LONDON COUNTY COURT
His Honour Judge Collins CBE

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2010
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE RICHARDS
and
LORD JUSTICE SULLIVAN
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Between :

	Harsukhray Bhatt	Respondent/Claimant 	
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Fontain Motors Limited	
Appellant /Defendant	
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John Bate-Williams (instructed by Weightmans) for the Appellant
Ian Little (instructed by Pannone) for the Respondent

Hearing date : 29 June 2010
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Judgment
Lord Justice Richards : 
1.	This is an appeal against an order of HHJ Collins CBE in the Central London County Court in a case arising out of an accident on 7 November 2005 in which the claimant, Mr Bhatt, was injured in a fall from a ladder at work.  The judge found for the claimant on liability, subject to a reduction of one third for contributory negligence.  The defendant appeals against the finding of liability.
2.	The issues centre on the application of the Work at Height Regulations 2005 (“the Regulations”), which came into force on 6 April 2005.  We have not had our attention drawn to any previous occasion on which the Regulations have been considered by this court.  
The facts
3.	The premises where the claimant worked consisted of a car showroom, a parts department, a workshop and a car washing area and car park.  The claimant, aged 54 at the time of trial, had worked there for over 25 years.  He had previously worked on the petrol forecourt and in the associated shop.   In early 2005, however, the defendant company bought the premises and discontinued the petrol sales.  The claimant continued in employment as an after-sales assistant with a broad range of duties. 
4.	The defendant brought onto the premises items from two separate sets of premises it had previously occupied.  Those items included about 20 or 30 fibreglass bumper kits, or spoilers, for Audi cars, each with a cost price of about £80-£100.  The evidence of the managing director, Mr Robinson, was that they were initially put in the parts department but were liable to be damaged or to cause an obstruction there.  So he looked for somewhere else to put them.  As the judge put it, “Mr Robinson, having scoured the premises for alternative storage space, decided that he would keep these bumpers, which were only sold off once or twice a month, in a loft area above the car showroom”.  About half of them had been brought down from the loft without incident and sold during the six months prior to the accident.  
5.	The way in which the loft would be accessed to take out a spoiler when required is described as follows by the judge: 
“12. The means of access was one which, if followed carefully in all respects, could and should have avoided accidents.  It involved the following:  firstly, any vehicle or vehicles which were in the showroom and positioned underneath the access point had to be moved.  Secondly, an ordinary A-frame stepladder had to be obtained from the workshop to gain access to the removable polystyrene panel in the ceiling of the showroom.
13. Either at that stage or after the next stage, a light, which was on a long lead and which was stored in the loft space, apparently having been left there by a plumber some years previously, had to be brought down and plugged in so as to give light in the loft space.  Then the A-frame had to be exchanged for a long aluminium ladder with rubber non-slip feet, as to which nobody can give satisfactory evidence about the provenance, and prop that up against the lip of the hatchway into the loft area.
14. Then, according to the proposed procedure, somebody would secure the foot of the ladder while somebody got up it; use the light to look around in the loft area for the spoilers which were arranged on three sides of the hatchway; choose the right one, the sizes being clearly marked; manoeuvre it, it was extremely light, but about five foot long and therefore a little awkward, through the hatchway and through the space vacated by the removal of the polystyrene roof tile, obstructed a little by the fact that there is a person on the ladder in the way; then either hand it to a third person at the bottom of the ladder or because it was so light just toss it onto a leather sofa in the showroom not far away.  Then the person would presumably, although it was not discussed in the evidence, remove the long ladder, go back and get the A-frame ladder, go back to put the light up and the put the polystyrene back in.”
6.	The judge goes on to say that to go through such a lengthy process with so many steps for this purpose was acknowledged by Mr Robinson to be “less than ideal”.  Mr Robinson had an active interest in health and safety issues and took steps to obtain advice from the Environmental Health Department of the local authority several months before the accident, in particular to direct him towards a website where he could obtain relevant information.  There is no suggestion that he received any advice on the specific issue of access to the loft.  Mr Robinson decided, however, that because the arrangements were less than ideal he would restrict the number of people whom he would allow to go up to the loft.  They were restricted to himself, a Mr Lawler and the claimant.  
7.	The judgment continues:  
“18. Mr Robinson’s evidence is that the three of them were there when he gave a practical demonstration of how it should be done and thereafter, … in the small number of months which elapsed before the accident took place, there was access once or twice a month by one of the three of them and that on all occasions prior to the accident the essential feature was that when the long ladder was in use it was footed, in the sense that there was a person securing the foot ….”
8.	The claimant gave a very different account, which is dealt with by the judge in the context of contributory negligence:  
“37. … He told me in evidence that he had not been up the ladder before.  He had not been told to have the ladder footed.  He trusted Mr Robinson.  He told me it did not occur to him that the ladder might be unsafe to use if it had not been footed.  He told me he had not had to use that type of ladder before at work.  He told me he had not been given clear instructions or told that the ladder should not be climbed unless it was footed and he told me that he had not told Mr Sugden, for example, that it was important to have it footed.”
9.	Mr Sugden was a fellow employee who gave evidence that on one occasion the claimant had told him how important it was that somebody footed the ladder. He was one of a number of work colleagues of the claimant who gave evidence.  Having considered their evidence, the judge concluded that the claimant was not telling the truth when he said that he had never been up the ladder before or that he did not know that the ladder was supposed to be footed.  The judge also found that on every previous occasion when the claimant went up the ladder it was footed, and that the claimant had expressed to other people the importance of having it footed.
10.	The judge said that it was wholly unclear from the evidence precisely how it came about that the claimant fell on the occasion of the accident.  The claimant’s own account in his witness statement was as follows: 
“Having checked the stability of the ladder, I climbed up and pushed the loft cover up and slid it open.  I was then able to reach the loft light ….  I came back down the ladder with the lead and plugged it into the main socket located in the customer waiting area.  I checked that the light was switched on and working and checked once again that the ladder was stable and secure before climbing up once again in order to get into the loft space.  As I was nearing the top of the ladder and was about to climb into the loft space, I fell.  The ladder fell beneath me and it must either have slipped or become dislodged.  My recollection of events at this point is hazy, but I remember trying to hold onto something and grabbing for the ladder.  I fell from the top of the ladder onto the ceramic floor beneath me and the ladder also fell down onto the floor below.”
11.	It was not possible to get the ladder to move in a subsequent attempt to replicate the circumstances of the accident.  The actual mechanism of the accident is therefore not known.
12.	Mr Bammer, a service adviser, gave evidence that on the day in question he was aware that the claimant had said he needed to go up into the loft area to bring something out.   Mr Bammer was talking to Mr Lawler, and Mr Lawler said that either he or someone else would help the claimant if he waited for a short while.  It was only a very short time later that Mr Bammer heard the crash of the claimant falling.  The  judge accepted that evidence, which was supported by a witness statement from Mr Lawler, though Mr Lawler himself had refused to attend to give evidence at the trial.  The judge therefore found that the claimant knew perfectly well that if he waited a couple of minutes somebody would come to foot the ladder for him.
13.	The documentary evidence included a report of an internal inquiry carried out immediately after the accident.  It did not reach any clear conclusion as to how the accident occurred, but it ended:
“In any event, following a risk assessment by the Directors, all staff members have been advised both verbally and in writing that they must not use ladders on the premises at all.  We have come to the conclusion that we must manage storage in other areas not involving access to heights and the only person in future to use a ladder will be Marcus Robinson.”
The remainder of the spoilers were brought down from the loft and were stored in an area previously used for the storage of wheels and tyres, which by then the company had managed to sell off.  
14.	Before considering the legal conclusions that the judge reached on those facts, I need to refer to the Regulations. 
The Regulations
15.	The Regulations were made under the Health and Safety at Work etc Act 1974.  A brief guide issued by the Health and Safety Executive describes them as setting out a simple hierarchy for managing and selecting equipment for work at height:  “dutyholders” (the term used in the guide) must (i) avoid work at height where they can; (ii) use work equipment or other measures to prevent falls where they cannot avoid working at height; and (iii) where they cannot eliminate the risk of a fall, use work equipment or other measures to minimise the distance and consequences of a fall should one occur.
16.	Regulation 2(1) defines “work at height” as: 
“(a) work in any place, including a place at or below ground level;
(b) obtaining access to or egress from such place while at work, except by a staircase in a permanent workplace,
where, if measures required by these Regulations were not taken, a person could fall a distance liable to cause personal injury.”
The same paragraph defines “work equipment” in broad terms, as “any machinery, appliance, apparatus, tool or installation for use at work…”.  
17.	The provisions referred to by the judge were regulations 4, 5, 6(1)-(2) and 7, which read as follows:
“Organisation and planning
4.(1) Every employer shall ensure that work at height is –
(a) properly planned;
(b) appropriately supervised; and
(c) carried out in a manner which is so far as is reasonably practicable safe,
and that its planning includes the selection of work equipment in accordance with regulation 7.
…
Competence
5. Every employer shall ensure that no person engages in any activity, including organisation, planning and supervision, in relation to work at height or work equipment for use in such work unless he is competent to do so or, if being trained, is being supervised by a competent person.
Avoidance of risks from work at height
6.(1) In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations.
(2) 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.
…
Selection of work equipment for work at height
7.(1) Every employer, in selecting work equipment for use in work at height, shall –
…
(b) take account of –
(i) the working conditions and the risks to the safety of persons at the place where the work equipment is to be used;
(ii) in the case of work equipment for access and egress, the distance to be negotiated;
(iii) the distance and consequences of a potential fall;
(iv) the duration and frequency of use;
…
(2) An employer shall select work equipment for work at height which –
(a) has characteristics including dimensions which –
(i) are appropriate to the nature of the work to be performed and the foreseeable loadings; and
(ii) allow passage without risk; and
(b) is in other respects the most suitable work equipment, having regard in particular to the purposes specified in regulation 6.”
The judgment below
18.	The judge found a number of breaches of the Regulations.  
19.	In relation to regulations 4 and 5, the judge said that there was no evidence that the managing director, Mr Robinson, although well-meaning, had had even the most cursory training in health and safety matters; and he was not satisfied that Mr Robinson was competent to engage in organisation and planning in relation to work at height.  On that basis he found a clear breach of regulation 5.  As Mr Little accepted on behalf of the claimant, however, such a breach was of causative significance only in so far as it resulted in breaches of regulations 4, 6 and 7.
20.	The judge made no express finding of breach of regulation 4 and, despite Mr Little’s submission to the contrary, I do not think that such a finding can be extracted from the judgment as a matter of necessary implication.  In any event, nothing turns on the point:  if the judge’s findings under regulations 6 and 7 are upheld, the claimant does not need regulation 4, whilst if they are not upheld the claimant cannot realistically expect to succeed under regulation 4.
21.	The judge referred briefly to regulation 6(1) but regarded regulation 6(2) as the key provision.  He proceeded on the basis that the expression “reasonably practicable” in that provision involved a burden on the defendant to show that it was disproportionate to the risk to require the goods to be stored elsewhere than in the loft.  He found that it was reasonably practicable to carry out the work somewhere else (i.e. otherwise than at height) if it had to be carried out at all and that there was a clear breach of regulation 6(2).  His reasoning was as follows: 
“31. It seems to me in truth that what happened here is that when the defendants moved to these premises, they simply found that they were smaller than they needed for all they had from their two previous premises.  I can quite understand from a commercial point of view, having been put to greater expense in the move than he originally anticipated, Mr Robinson was anxious not to incur further losses in selling these bumpers off at a loss, but the fact that he moved into the premises with more goods than he could conveniently store, is a misfortune for the defendants.
32. It seems to me that their real choice was either to redouble their efforts to store them somewhere else or alternatively to sell them off when they moved in, which is what they eventually did anyway.  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 safely otherwise than at height, seems to me to be a non-starter.”
22.	The judge’s other important finding of breach concerned the selection of work equipment, which is covered by regulation 7.  He said that if the loft was a serious storage area it would have been possible to install a fixed pull-down ladder.  That might have involved altering the configuration of the access but it was unlikely that it would have cost more than a few hundred pounds.  There was nothing to stop it being done, and no doubt the reason why it was not done was the expense compared with the profit to be gained from the spoilers.  He continued: 
“These regulations are designed to protect health and safety and are designed to protect employees against decisions which are taken on the basis of keeping costs low as opposed to protecting employees’ safety.  It seems to me that if a decision was going to be made to use this loft for storage, this makeshift, multi-step way of gaining access should have been regarded for what it was, makeshift and unsatisfactory and the decision should have been boldly taken to install a fixed pull-down ladder which would have been the only obvious way of making it safe.”
23.	Mr Bate-Williams contended that that was a finding of breach of regulation 7(1).  I am satisfied, however, that it was a finding of breach of regulation 7(2).   In the light of the fact that a fixed pull-down ladder was an available option, the judge plainly took the view that the equipment selected was not appropriate to the nature of the work to be performed or was not in other respects the most suitable work equipment.
24.	The judge said that those breaches of the regulations exposed the claimant to an unacceptable risk.  He did not go on to consider in terms whether they were the cause of the accident, but it is plain from his discussion of contributory negligence that he regarded them as such:
“49. … The fact is that, in my judgment, Mr Bhatt embarked on a manoeuvre which he had undertaken before with somebody footing the ladder for him and he must have appreciated that there was a risk and he was putting himself at risk by going up the ladder without it being footed.  Therefore, it seems to me that he did not take reasonable care for his own safety.
50. The question then is to what extent should that reduce the amount of damages to which he should be entitled? There were a number of significant and serious breaches of statutory duty by the defendants.  I have little doubt that if a safety assessment had been carried out by a competent and trained person, they would never have approved the method for getting up into the loft which Mr Robinson devised, requiring so many steps as I have already indicated and the failure to get a professional assessment was serious.  The breach of regulation 6.2 in storing the items up there at all was a serious one and the failure to have a fixed ladder was one which was dictated simply, in my judgment, by financial convenience without any real regard to questions of safety.
51. On the other hand, the system that was devised, rackety though it was, if it had been properly followed by the claimant would have avoided his injury.  In my judgment, the proper approach to the case is to assess contributory negligence on the basis that the defendants have principal responsibility for exposing the claimant to a risk to which he should not have been exposed, but that the claimant bears substantial responsibility for failing to take steps to ensure his own safety.  In my judgment, the claimant is one-third to blame for his own injuries.”
The appeal
25.	The primary argument advanced on the appeal by Mr Bate-Williams on behalf of the defendant was that the claimant was wholly to blame for the accident and that there could therefore be no liability on the defendant (see Anderson v Newham College of Further Education [2002] EWCA Civ 505 at [18]).  In climbing the ladder without waiting for it to be footed, the claimant ignored the instructions given to him and the system he had followed before.  The claimant accepted in evidence that if the ladder had been footed the accident would probably not have occurred; and the judge found in terms that the claimant’s injury would have been avoided if the system had been followed properly. 
26.	In the alternative, Mr Bate-Williams took issue with the judge’s findings that the defendant was in breach of the regulations. I can concentrate on regulations 6(2) and 7(2) since, as already indicated, those were the most important of the judge’s findings.  In relation to both provisions, the broad nature of the case advanced was that the findings lacked an adequate foundation in the evidence or failed to take into account relevant considerations such as the size of the business, the small number of spoilers being stored and the fact that they were a dwindling stock, the fact that access to them was required on only one or two occasions each month, and of course the fact that the claimant had managed the task of getting them down on previous occasions without difficulty or danger.
27.	For the claimant, Mr Little submitted that it is wrong to focus exclusively on the conduct of the claimant.  The breaches of the Regulations found by the judge (and rightly so found) meant that the claimant was exposed to a risk to which he should not have been exposed.  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 this lengthy, complex and makeshift system.  The very likelihood of such a departure reinforces the need for a safe means of access to have been provided.
28.	I agree that one needs to start with the Regulations rather than with the claimant’s conduct.  The Regulations are directed at avoiding or minimising the risks inherent in working at height.  The point is well made in the simple hierarchy set out in the Health and Safety Executive’s guide (see [15] above).  Thus, work at height must be avoided altogether if it reasonably practicable to carry out the work otherwise than at height:  that is the focus of regulation 6(2).  If work at height cannot be avoided, the risks must be minimised by, inter alia, the selection of work equipment which is appropriate and meets the other requirements of regulation 7(2).  If an employee falls while working at height when he should not have been required to work at height at all, it is difficult to maintain that he was wholly to blame for the fall on the basis that the fall would not have occurred if he had followed the system prescribed by the employer.  Similarly, if he falls while using inappropriate equipment in circumstances where he would not have fallen if appropriate equipment had been provided, it is difficult to maintain that he was wholly to blame on the basis that the fall would not have occurred if he had followed the prescribed system for use of the inappropriate equipment.  In each case, it is easy enough to see why the employer’s breach of duty will ordinarily be found to be causative of the fall, albeit the employee’s failure to follow the prescribed system may amount to contributory negligence.  
29.	I therefore turn to consider first whether the judge was right to find breaches of regulations 6(2) and 7(2).
30.	As to regulation 6(2), the judge’s essential reasoning was that it was reasonably practicable to avoid storing the spoilers in the loft, and therefore to avoid the need to carry out the work of retrieving them at height, by storing them elsewhere or selling them off at the outset.  Strictly speaking, selling the spoilers off would have avoided the need to carry out the work of retrieval at all, but that seems to me to come within the mischief of regulation 6(2) in just the same way as avoiding the need to carry out the work of retrieval at height by storing them elsewhere.  The defendant did not plead a positive case in respect of reasonable practicability (indeed, the defendant pleaded no specific defence to the Regulations at all).  Mr Robinson gave evidence, on which he was cross-examined, that all other possibilities were exhausted before the decision was taken to store them in the loft.  It seems to me that Mr Robinson’s evidence on the subject was far from conclusive and that the judge, having considered that evidence together with the rest of the evidence before him, was entitled to reach the finding he did.  The defendant managed to store the spoilers elsewhere once the post-accident risk assessment was found to require it (see [13] above).  I do not accept Mr Bate-Williams’s submission that the judge’s finding lacked an adequate evidential foundation or failed to take relevant considerations into account.
31.	I should mention for completeness that there was no suggestion that the judge applied the wrong legal test in his consideration of regulation 6(2).  I have said at [21] above that he proceeded on the basis that the burden was on the defendant to show that it was disproportionate to the risk to require the goods to be stored elsewhere than in the loft.  This was founded on a passage in Redgrave’s Health and Safety, 6th edition (2008), at para [2.51]:
“’Reasonably practicable’, as traditionally interpreted, is a narrower term than ‘physically possible’ and implies that a computation must be made in which the quantum of 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, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable.”
32.	It was common ground between counsel before us that that represents the correct approach to determining under regulation 6(2) whether it was reasonably practicable to carry out the work safely otherwise than at height.  Although it is not self-evident why the burden of proof on this point should lie with the employer, it is unnecessary to take the matter any further.  I think it clear in any event that the judge’s finding on regulation 6(2) did not turn on the burden of proof.
33.	As to regulation 7(2), it was not in issue that a fixed ladder could have been installed, albeit some alteration to the configuration of the access would have been required; and although there were no actual cost figures in evidence, the judge’s view that it would have been unlikely to cost more than a few hundred pounds was not unreasonable.  In my judgment, he was entitled in those circumstances to find a breach of regulation 7(2) on the basis that the moveable ladder was not appropriate to the nature of the work to be performed or was not in other respects the most suitable work equipment.  Again I do not accept Mr Bate-Williams’s submission that the judge’s finding lacked an adequate evidential foundation or failed to take relevant considerations into account.
34.	The judge was also plainly correct to find that those breaches of the Regulations exposed the claimant to an unacceptable risk.  It would have been better for him to deal more fully with the issue of causation, but the way he analysed matters when considering contributory negligence shows that the defendant’s breaches of the regulations were in his view causative of the accident.  In my judgment, that was undoubtedly the correct conclusion.  The claimant cannot be said in this case to have been wholly to blame for the accident.  The defendant’s breaches of the Regulations placed the claimant in a situation of risk to which he would not have been exposed if the Regulations had been complied with.  What happened is the very kind of event that the Regulations are aimed at preventing.  His failure to follow the prescribed procedure when doing work he should not have been required to do at all, and when using equipment that he should not have been required to use if the work was to be done, does not mean that the accident was caused by him alone.  It goes only to contributory negligence.
35.	The judge was perhaps generous to the claimant in finding only one-third contributory negligence, but there is no appeal against that finding and it is not a finding with which this court would readily interfere.
Conclusion
36.	For the reasons given, I would dismiss the appeal.
Lord Justice Sullivan :
37.	I agree with both judgments and have nothing to add.
Lord Justice Sedley :
38.	I agree that this appeal fails for the reasons given by Richards LJ.
39.	In relation to his comment in paragraph 32 about the burden of proof in relation to what is reasonably practicable, it may be that there is, and needs to be, no fixed allocation of the burden. It will depend on what has happened and the situation in which it has happened. 
40.	There will be some cases in which it is open to, and arguably incumbent on, the claimant to say what ought to have been done by the defendant and why. There will be others in which the event itself calls for an explanation by the defendant of why it was not reasonably practicable to have guarded against it. In both kinds of case it will then be for the defendant to show why it was not reasonably practicable to take the step in question. In many cases the burden will shift as the evidence unfolds. 
41.	In other words, the reason why there is no formal legal allocation of the burden of proof may well be that judges and practitioners recognise that reasonable practicability is a protean concept which has to be addressed case by case.