ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MISS RECORDER SIMMONS QC)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
LORD JUSTICE BUXTON
MR JUSTICE MORLAND
GRAHAM VICTOR WALLIS
Appellant/Claimant
-v-
BALFOUR BEATTY RAIL MAINTENANCE LIMITED
Respondents/Defendants
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A. RITCHIE (instructed by Messrs Russell Jones & Walker, London, WC1) appeared on behalf of the Appellant.
MISS C BROWN (instructed by Messrs Kennedys, London, EC1) appeared on behalf of the Respondents
J U D G M E N T
(As approved by the Court)
Crown copyright©
MR JUSTICE MORLAND: The appellant appeals against the dismissal of his claim for damages for personal injuries against the respondents, his employers, by Miss Recorder Marion Simmons QC in a judgment given on 22nd March of last year in the Central London County Court. The Recorder dismissed the claim with costs but ordered that, if the claimant succeeded on appeal, damages would be £38,187, subject to arguments on contributory negligence.
The claimant sustained a nasty back injury on 11th March 1997. He was then aged 34. The respondents were under contract with Railtrack and were responsible for the inspection and maintenance of much of the permanent way, in particular the track from Shoeburyness to Fenchurch Street. The claimant was the track manager of this section of track. He was an experienced track manager. He had been a track manager with British Rail before privatisation in July 1994 and continued as such thereafter with the respondents. His duties involved 60 per cent office work and 40 per cent track inspection, which included some heavy manual work. About 11 men worked under him. He was responsible for health and safety issues. He was on call 24 hours a day on a one week on one week off basis to attend incidents on the line.
The claimant's immediate superior was a Mr Jarrold who had responsibility for the whole of the East Anglia section of the track. On 6th June 1994 the claimant had signed a safety responsibility statement acknowledgment slip that he had received the statement which applied to the track manager and expressly provided:
"You are responsible for ensuring that you and staff under your control work safely and that all work is carried out in a way that is safe to yourself, your workmates and/or contractors and the public."
There was also a personal track safety handbook dated 1995 which applied. Again I quote:
"Whether you are walking or working."
Under a paragraph entitled "Access and Walking Routes" was the instruction "Use approved places of access to the line side wherever possible."
The Recorder made this important finding (paragraph 6 of the judgment):
"As a track manager Mr Wallis was accountable if there was any delay in jobs being carried out. He attended monthly meetings at which delays were raised. His section would be given penalty points for delays. Mr Wallis said that there was a lot of pressure to avoid incurring penalties: that it was drummed into them that 'time costs money.'"
In my judgment, the respondents' management had to be vigilant that exhortations on personal safety were not diluted by a 'time costs money' culture.
At about 8.35 am on 11th March 1997 the claimant received a bad running report that a caution had been placed on the upside track at Rom Bridge, which meant that trains were restricted to 20 mph when there was a normal speed of 70 mph. Services were seriously disrupted on that line. The claimant drove from his base at Leigh-on-Sea in his van to inspect the track, a journey of some 50 to 60 minutes. He parked his van at the nearest access gate to the incident but discovered that the gate was padlocked, not with a standard lock but a padlock for which he had no key. The claimant had no tools with him to smash or cut the lock. He could not gain access to the line by the access gate. The Recorder made this finding (paragraph 22 of her judgment):
"As Balfour Beatty were responsible for access gates and security, Mr Wallis thought that it would be one of their employees who had changed the lock. However on the evidence that I have heard I conclude that the wrong lock could have been fitted by a variety of people, from Balfour Beatty and Railtrack employees to independent contractors authorised to gain access to the track."
Mr Wallis telephoned the infrastructure control centre at Liverpool Street. He was told that the caution had been imposed for some time and was costing a lot in train delays. He said in his oral evidence that he was asked to find the quickest alternative way to gain track access. I interpose to say that he did not say that he had been told to find the quickest alternative way to gain track access irrespective of considerations of safety.
The Recorder went on say:
"I find as a fact that Mr Wallis was asked to find the quickest alternative way to gain access to the track and that he said that he would look for the quickest alternative access. It is implicit that the alternative access should be a safe traffic route provided to the track."
The Recorder then described her findings as to how the accident occurred. She said:
"Mr Wallis, working under pressure of time, gained access by climbing up the palisade fencing onto the sloping wingwall of the rom bridge and up the grass bank. The palisade fencing was about 5'11" high and the wall about 9 ins wide.
Mr Wallis did not tell anyone that he was intending to gain access in this way nor was he told to gain access in the way he did. Mr Wallis thought he was acting in the best interests of the company in order to save it suffering financial penalties.
Mr Wallis reached the fault on the line, it was not hazardous and he removed the caution. The track required packing but this could be done later that day or the next day.
Mr Wallis took the same route back to the access gate. He walked down the grassy bank, but unfortunately when he stepped on the wingwall of the rom bridge to put his foot on the palisade fencing, he slipped down and fell from a point about 10 -- 12 feet from the ground over the palisade fencing. He landed on grass, his left leg folded underneath him and he fell heavily onto the upper part of his left buttock."
The photographs of the palisade and wingwall are to be found on pages 25 and 25A in tab 9 of the trial bundle.
In my judgment, it would be easier to gain access than egress. The palisade could be used as a form of ladder to ascend and would provide foot and hand holds. Descent, on the other hand, involved coming down from a sloping bank onto a sloping wingwall and then down, either the wall or the palisade. The appellant fell in the position where the man is standing in the photograph on page 25A.
The Recorder summarised the claimant's evidence (paragraph 34 of her judgment):
"Mr Wallis in evidence in chief said about the route that he took, that it was not a particularly easy exercise but far from impossible, and he had no reason to think he would be endangering himself. He said that he had no specific verbal or written instruction from his employers concerning the climbing of walls or palisade fences. However under cross-examination Mr Wallis admitted that he was taking a great risk climbing the wall and that he would not have done it had he known what was going to happen. He said that if he had seen his men doing it he would have said 'don't be so stupid'. He said that he had put himself in a position where he could fall or could have been impaled on the palisade fencing. He said that it was a calculated risk but not foolish."
I refer to some passages from the evidence of the appellant because they illustrate that the appellant realised that he was risking his own safety. I quote from pages 33 to 36, not in full but parts of those pages in the transcript of his evidence. The question was:
"Even if you'd accessed by the gate by the fence and the wall on the way in and taken a risk you thought reasonable, at that stage, there was no reason for you to take a risk going out was there?
I've just said to get back to Leigh as quickly as I could.
How high do you say you fell? How far?
I can't remember, 10,12 feet I guess.
You were taking great risk by climbing that wall weren't you?
Obviously if I'd realised what was going to happen I wouldn't have tried it. In my opinion before this whole thing started there's risk in doing anything. In my opinion it was the best thing to do at the time.
If you'd seen one of your men doing that you'd have said to them don't be so stupid wouldn't you?
Quite probably; all depending on the situation It's a calculated risk with what is going on at the time. As I say, as I've said already, I was aware that not only would there have been a delay in me getting there, there's also been a delay in me being informed. I was made well aware of that fact and I was trying to do the best thing.
In the process of exiting you would put yourself in a position where you could fall 12 feet because that's, in fact, what you did?
Yeah, agreed.
That was a terribly dangerous thing for you to do. Do you accept that?
Again, it was a calculated risk.
Do you accept it was dangerous?
Again, I accept was a calculated risk."
At page 35:
You were, as I understood it from your description, going to get both feet up onto the wall top?
That's correct.
So you're clambering up, one foot on the wall and then another foot on the sloping top of the wall?
That's correct.
Then what were you going to do to get onto the fence?
Go over the fence with one leg, hang on to the fence and then over with the other one.
So hanging onto one bit of the fence with your hand?
That's correct.
You chose to do something, which was dangerous without telling anybody that that was your intention?
I chose to take a calculated risk to get the job done, which is what I was paid to do, yeah that's correct."
The Recorder said that she was satisfied on the evidence that there had been no problem with wrong locks being fitted on gates before the claimant's accident and found that it was not reasonably foreseeable that there would be such a problem. It was the responsibility of the men working under the claimant to inspect the line once a week at all access points to ensure that they were secure and locked. The claimant himself had to walk the route and inspect all access points once every two months.
In my judgment, although there is no evidence as to the contractual obligations of the respondents, that degree of inspection appears to me to be entirely reasonable and appropriate. Apart from the respondents' staff, access gates were used by signalmen and other contractors, and it was not unusual for contractors to cut off locks which had to be replaced urgently to prevent public access to the line. Vandalism was also a problem.
After summarising the claimant's allegations of breach of duty at common law which, in my judgment, essentially focus on the wrong padlock in the access gate and the inability to enable the appellant to enter the line by the usual access gate, the Recorder reached this conclusion (paragraph 63 of her judgment):
"In my judgment Balfour Beatty are not in breach of their common law duty of care to Mr Wallis for the following reasons:
On the evidence before me as summarised above I am satisfied that safety was a paramount consideration and that Balfour Beatty did not expect its employees to endanger their own safety when dealing with a caution which was causing serious delay and might result in financial penalty. He was not expected to put the financial interests of the company above his own safety. Mr Wallis knew of Balfour Beatty's approach to safety.
Moreover access to the track was carefully protected to ensure that unauthorised access would not occur and that those authorised to have access would do so using the safe traffic route provided to the track. The palisade fencing had been constructed so that it was obviously dangerous to traverse and so that it would deter anyone (including an employee) from traversing it. The route taken by Mr Wallis was not therefore an alternative access route.
Mr Wallis was aware that the route he took was dangerous.
In my judgment it was not reasonably foreseeable that if Mr Wallis could not gain access properly by unlocking the gate with his common key he would improvise by climbing on the palisade fence and gaining access to the track through an unauthorised route as he did. I am satisfied that this is so having regard to the actual circumstances pertaining at the time including that Mr Wallis was faced with an unexpected situation which had not occurred before, that he had to make an instantaneous decision at the scene, and that in deciding to enter and exit as he did he was seeking to do the best he could for his employer.
This is not a case of an employer having to guard against a careless employee.
Mr Wallis's conduct amounted to a new and unforeseeable intervening act."
At paragraph 65 the Recorder said:
"Mr Wallis had a mobile phone on him and I do find that he could have used this phone to summon assistance or ask for instructions. He had done so on arrival at this access point to report the gate was fitted with the wrong lock and he could not gain access through that gate."
The main thrust of Mr Ritchie's submissions was that the Recorder misdirected herself on the question of foreseeability. He submitted that she wrongly applied a too narrow and too specific test. He referred us to dicta of Lord Steyn and Lord Hoffmann in Jolly v Sutton Borough Council [2001] WLR 1082, and in particular at pages 1089B to C, 1089D to 1090E per Lord Steyn, and pages 1091D and pages 1092D-G and 1093C-D per Lord Hoffmann. Mr Ritchie submitted that the correct test was: was it foreseeable that the appellant, finding the access gate with a padlock which he could not open, would use some other means of access involving risk? Mr Ritchie submitted that the appellant had been told to use an alternative means of access as a matter of urgency and he submitted that, whatever means of access and egress that the appellant chose to use, if he was injured the respondents were liable subject to contributory negligence. He accepted that, on the facts of this case, the appellant would be guilty of at least 25 per cent contributory negligence.
Mr Ritchie in particular relied on evidence given by Mr Jarrold and on a comment by Mr Jarrold in an accident report form (to be found in tab 40 of the trial bundle, page 172). The comment of Mr Jarrold was that Mr Wallis was trying to gain access to lineside in respect of a reported track fault. This was the nearest access point. The evidence is clear that when Mr Jarrold made that comment in the accident report form, no investigation of the accident had been carried out. When questioned by Miss Brown for the respondent, Mr Jarrold made his position clear:
"Were you aware, the time that you wrote your part of the report, of exactly what the features were at this location?
No.
Were you aware of how far he'd fallen, for example?
No.
Were you aware that he'd negotiated a spiked fence in the course of what he'd been doing?
No.
Knowing what you now know, looking at this photograph, do you consider that what he did was a reasonable way to gain access?
No.
Was it a reasonable way for him to leave?
Definitely not to leave. After he'd negotiated going in and seen all those particular obstructions and dangerous points, definitely not.
As far as Elm Park is concerned were you ever aware of a problem with people leaving the track via LU stations?
It's never been brought to my attention, no."
The suggestion was made that there was an alternative means of access going some distance along the line to an underground station at Elm Park. He was then questioned by the judge (page 42 of the transcript):
"Would you accept that he should have gained access in that way because it was the nearest access point and he needed to get there?
Yes.
What you don't apparently accept is that he should have got out that way?
Correct, your Honour.
Well if safety is paramount aren't those two things inconsistent?
You could say that your honour yes.
But it's right that he should have got in that way?
It's very difficult to put that into words in layman's terms of -- he obviously got through that way and deemed it was safe to do so himself.
So if he'd had an accident going in what would you have said?
At the end of the day the judgment is on the man himself. He has, it's paramount, if he deems it safe to carry out that responsibility as well. Not only as I say. If he doesn't think it's safe he has the alternative to make a decision himself, what he can do.
But he did think it was safe because he did it?
You're right, yes.
And you say that Balfour Beatty was responsible for him to go in that way?
It was responsible for him to get into the site in a safe manner, yes.
You say if he'd had an accident when he went in what would have happened? What would you have said?
I would have probably said a similar thing that he has to make the decision himself is it safe for him to do so as well because it can't just be solely on a company to say, yes you can say that but there has to be some responsibility of the person's own actions themselves whatever field you're in yourself. You put your own safety first. You must do. You know if I deemed someone said that I would have to consider is it safe for me to do it. If I consider -- if I'd done this and I consider it was safe and I did it then it's my responsibility even though I'm working for a company I would make that decision on myself. If I didn't deem it was safe I wouldn't do it your honour because I value my safety and my family more than I do and I don't mean any disrespect, before my company and my job. I wouldn't put my own life and health at risk and I don't expect anybody else to. I certainly would never criticise any member of my staff who put his own safety first.
You wouldn't criticise him?
No, if he put his own safety first. Paramount we have -- I have a great way of working with staff. If they consider something unsafe they raise it to their respective managers who will deal with it in the proper way but they do not carry out any unsafe practices whatsoever if they deem unsafe.
Would you criticise a member of staff if he put the company before his safety?
I would say he shouldn't -- yes, he should not his own safety at risk."
As I understood the submissions of Mr Ritchie, he was submitting that Mr Jarrold was in effect conceding that it was foreseeable that somebody in the appellant's position would size up the situation and go over a section of the palisade fence if he thought it was safe to do so in order to carry out his task, and the same would apply on exit.
In my judgment, that is not a fair understanding of what Mr Jarrold was saying. He was saying, as accepted by the Recorder, that safety was a paramount consideration, and that in a matter of obtaining access to the line, it was for the appellant to choose a safe means of access as an alternative to the one that was barred by the gate which was locked. It should be emphasised that the appellant was a man of 34, of great experience, responsible for safety, who was fully familiar with the safety regulations of the respondents and was himself responsible for, not only his own safety but the safety of the men working under him and other people who were either working on the line or members of the public.
The Recorder then went on to deal with the alleged breaches of statutory duty. They were of two kinds, alleged breaches of the Provision and Use of Work Equipment Regulations 1992 and alleged breaches of the Work Place (Health and Safety) Regulations 1992. In her judgment, at paragraph 69 the Recorder said:
"The first question [in relation to the Equipment Regulations] is whether the lock and key are within the definition of 'work equipment'".
She said:
"In my judgment the lock and key are within this definition of 'work equipment'".
There is no appeal against that conclusion of the Recorder which was accepted by Miss Brown. Speaking for myself, I have some reservations as to whether the lock and key to a gate such as the one in this case would amount to work equipment as envisaged by those regulations.
Looking at the regulations, if one starts by looking at the interpretation, regulation 2, it says:
"'work equipment' means any machinery, appliance, apparatus or tool".
The note to the interpretation regulation says that the term is widely defined: see the guidance at paragraphs 62 to 64 stating that the regulations apply to almost any equipment used at work. By way of example, the following is a non- exhaustive list of work equipment subject to the regulations. That is in paragraph 43. When one looks down, one sees dumper truck, portable drill, mobile access platform, soldering iron, trench sheets, air compressor, meat cleaver, etcetera, such things as linear accelerators, blast furnace detonators.
Miss Brown in her submissions submitted that the appellant was provided with a key but that he did not actually use the key. The purpose for which the key was provided was to turn, open or close a common burg lock. The key provided was suitable for that job. In my judgment, that submission amounts to this. Where the regulation says that every employer should ensure that work equipment is used only for operations for which and under conditions for which it is suitable, and under regulation 5(1), "every employer should ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used and provided", in providing the key, the respondents were not providing that key in order that it should be used to open any lock but only a lock into which that key could be fitted. That is a burg lock. This key was constructed and adapted so as to be suitable for that purpose for which it was provided. It was not in fact used by the appellant. In my judgment, the contention that there has been a breach of any provision of the Provision and Use of Work Equipment Regulations fails.
However, when one considers the Work Place Regulations, in my judgment, there was a breach of those regulations. In particular, there was a breach of regulation 17 and in particular regulation 17(2). Regulation 17(2) reads:
"Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size."
Traffic routes are defined, and they include, not only normal routes but also entrances to the routes, and workplace is similarly widely defined. In my judgment, the access gate through which the appellant intended to reach the track clearly was a traffic route. It was barred and as a result, in my judgment there was a breach of regulation 17(2). There was no traffic route that was suitable for the appellant to use in a suitable position and therefore there is a breach in my judgment of that regulation.
The Recorder, however, in dealing with the regulations dealt with them in this way (paragraph 66):
"Mr Wallis also relies on regulation 5, 17 and 18 of the Workplace (Health, Safety and Welfare) Regulations 1992 and regulation 5 of the Provision and Use of Work Equipment Regulations 1992."
She then found in paragraph 69 that the lock and key are within the definition of "work equipment". In paragraph 70 she said:
"The second question is whether the lock and key are so constructed as to be suitable for the purpose of which they were to be used or provided. The suitability relates to respects in which it is reasonably foreseeable that it will affect the health or safety or any person. Mr Wallis suggests that if the lock and key are not compatible it is reasonably foreseeable that an employee will take a dangerous route which will affect his health or safety. In my judgment and for the reasons I have already stated this is not reasonably foreseeable. Any breach of this Regulation was not causative of the loss."
She went on to deal with regulations 17 and 18 of the Workplace Regulations, and said:
"In my judgment none of these Regulations apply. The condition of the lock and key was not such as to give rise to a risk to health and safety. Nor was the accident caused by the decommissioning of the traffic route resulting from the gate being locked with a padlock which was not compatible with the common key provided to Mr Wallis. In my judgment there is no causal connection between the mischief which these regulations seek to cover and the accident which occurred. The accident is solely attributable to Mr Wallis's own actions once he discovered that he could not gain entry through the gate."
With the qualification that in my judgment there was a breach of regulation 17(2), I agree with the conclusions reached by the Recorder. The Recorder ended her judgment by saying this (paragraph 79):
"Balfour Beatty could not have reasonably foreseen that if Mr Wallis could not gain access through the access gate he would take the route he did. The safety literature makes it clear that an employee is not to put himself in a position of danger and Mr Jarrold told me (and I accept his evidence as to this) that employees' safety was the paramount consideration. It was not the wrong lock which caused the accident, but the actions of Mr Wallis when he discovered he could not gain access by unlocking the gate. In the circumstances of this case the accident was caused solely by Mr Wallis's own actions and not by any breach of common law or statutory duty on the part of Balfour Beatty."
In my judgment, this conclusion of the Recorder was fully justified on the evidence. It was essentially a decision of fact on a basis that she had correctly directed herself as to the law. Once she concluded that the cause and the only cause of the accident was the appellant's own actions, that was the end of the appellant's case. In my judgment, even though there was a breach of statutory duty under regulation 17(2) of the Workplace Regulations 1992, the sole cause of the accident was the appellant's decision to take this hazardous route in and out from the track. That being the sole cause of the accident, in my judgment the Recorder came to the correct conclusion.
I would dismiss the appeal.
LORD JUSTICE BUXTON: I agree. In the course of her able submissions Miss Brown submitted that the claim in negligence failed in limine, because the employee had not established that the employer was in these circumstances under any duty of care to him. I do not think that that is the right way of looking at the matter because, in an employer/employee relationship, there will always be a prima facie duty to take care for the safety of the employee. But that is a duty to guard against foreseeable dangers to which the employee may be exposed. It was therefore, on either analysis of the case, incumbent upon the employee to demonstrate what those dangers were.
The particulars of negligence upon which the case was fought put this matter under two heads. As my Lord has said, by far the paramount claim was based upon the fact, as it appears to be, that a third party had placed inappropriate locks upon the normal access gate, with the result that Mr Wallis's key, provided to him by his employers, would not fit that lock. That was described as being foreseeable negligence on the part of the employers in paragraph 5(a) of the particulars of negligence:
"They should and ought to have realised that the appropriate lock was not on the access gates. Had the appropriate lock been in place the claimant could have gained access by means of the common key. By virtue of the appropriate lock not being in place the claimant was required to gain access in the manner that he did."
It was therefore said to follow from that that it would be foreseeable that he would take the course that Mr Wallis in fact did take.
That way of putting the case necessarily falls in the face of a finding by the judge, which Mr Ritchie said he did not challenge:
"I am not satisfied on the evidence I have heard that there had been any problem with wrong locks being fitted on gates before this accident or that such a problem was reasonably foreseeable."
Therefore, leaving out of consideration the lengthy and perhaps remarkable chain of causation upon which this plea is based, its very foundation, that is to say that it was reasonably foreseeable by the employer that inappropriate locks had been fitted and therefore the employee's key would not work, fails.
There was, however, a second way in which the matter was put in paragraph 5(d) of the pleadings. This related to what happened after Mr Wallis found that he could not get in. It said this:
"Insofar as the claimant did not know that there was an alternative lock fitted and did not have the appropriate key to gain access to the access gates, it was foreseeable that he would adopt the method of work which he did. The claimant was required to find the quickest alternative way to gain track access."
That is based upon the exchanges which my Lord has set out between Mr Wallis and the control centre after the difficulty appeared.
This basis of the plea of negligence is supported by a finding by the judge:
"I find as a fact that Mr Wallis was asked to find the quickest alternative way to gain access to the track and that he said that he would look for the quickest alternative access. It is implicit that the alternative access should be a safe traffic route provided to the track."
That last sentence of the judge is of crucial importance because it represented a finding on her part that, although the employers foresaw that Mr Wallis would seek to enter the track by the quickest alternative route, that route had to be a safe route. The judge reached that conclusion on the basis of her analysis of the evidence in these terms:
"On the evidence before me as summarised above I am satisfied that safety was a paramount consideration and that Balfour Beatty did not expect its employees to endanger their own safety when dealing with a caution which was causing serious delay and might result in financial penalty. He was not expected to put the financial interests of the company above his own safety. Mr Wallis knew of Balfour Beatty's approach to safety."
At one stage of the argument I had some difficulty with that finding. That difficulty centred on certain parts of the evidence of Mr Jarrold: not the matter concerning the original accident report which, as my Lord has pointed out, was based upon an imperfect knowledge of the facts and cannot be regarded as dispositive; but on certain answers extracted from Mr Jarrold in cross-examination by Mr Ritchie in relation to his view of Mr Wallis's action in climbing into the site in the first place as opposed to seeking to exit from it. My Lord has set out those parts of the evidence. It seemed to me that there was some difficulty in maintaining the view that safety was paramount in all circumstances if climbing into the site, in the way that Mr Wallis had done, was not totally ruled out of consideration. Nor did I accept Miss Brown's submission in that respect that Mr Jarrold's evidence was of a fairly senior but not very senior employee, just the man on the site. He was the person through whom the employers chose to present their case. His was the only evidence that the judge had. But the judge was well aware of this point and these issues, as is demonstrated by the lengthy investigation that she went into with Mr Wallis and Mr Jarrold. The transcript reveals two things, first, the real essence of Mr Jarrold's position; but also the careful consideration that the judge gave to this point. True it is that she does not go into it in terms in her judgment, but the transcript of the trial shows that she was well aware of this issue and very well aware of the evidence, on the basis of which she was able to make the finding that I have indicated.
In looking at the judge's conclusions, it is important for the court to have well in mind what Lord Steyn said in Jolly v Sutton London Borough Council [2000] 1 WLR 1082,1089A:
"The issue whether an accident of the particular type was reasonably foreseeable is technically a secondary fact but perhaps it is more illuminating to call it an informed opinion by the judge in the light of all the circumstances of the case. In my view it was an opinion which is justified by the particular circumstances of the case. Counsel has not persuaded me that the judge's view was wrong. And I would hold that the Court of Appeal was not entitled to disturb the judge's findings of fact."
I bring that view to this case. The judge was entitled, on the evidence before her, to come to the conclusion that she did of the employers' view of safety and Mr Wallis's knowledge of that safety. That being the case, she was justified in finding that it was not foreseeable that Mr Wallis would act in the way that he did.
In formulating the issue in the latter sense, I put in issue another submission that Mr Ritchie made to us. In the judge's conclusion she said (paragraph 63D):
"In my judgment it was not reasonably foreseeable that if Mr Wallis could not gain access properly by unlocking the gate with his common key he would improvise by climbing on the palisade fence and gaining access to the track through an unauthorised route as he did."
Mr Ritchie said that that formulation demonstrated an error by the judge, in that she had demanded far too detailed a level of foreseeability of the particular facts that occurred before being prepared to acknowledge that what occurred was foreseeable. I do not think that the judge made that error. Although she does not, and in my judgment did not need to, go into the many statements of law on this matter, including those to be found in Jolly v Sutton London Borough Council, I do not think that she made the elementary error of thinking that the accident had to be foreseeable in its every detail before negligence could attach. In speaking as she did in that passage, she was reporting her conclusion on the facts of this case, which was the conclusion that she was required to reach. Similarly, in relation to her finding on causation, in my judgment we are equally constrained by the guidance given by Lord Steyn in Jolly v Sutton London Borough Council. This was a factual assessment for the judge. She was well entitled to reach it. I am satisfied that there are no grounds for challenging her conclusions as to common law negligence.
In respect of regulation 5 of the Provision and Use of Work Equipment Regulations 1992, I am quite clear that the terms of this regulation do not bite on the facts of this case. What was said to be unsuitable in the circumstances as they arose was the provision to Mr Wallis of the key that did not open the lock that was in fact upon the gate. That submission causes difficulties in two ways. First, under regulation 5(1) the item shall be suitable for the purpose for which it is provided. The key was provided to open the lock that the employer put there, not the lock that somebody else substituted. Secondly, in regulation 5(4):
"'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."
Since the judge had found that it was not foreseeable that there would be a rogue lock present, and therefore not foreseeable that the key would not work, it was not foreseeable that the provision to Mr Wallis of this key would affect his health or safety. That is apart from any difficulty that accrues from the lengthy chain of causation in this respect, which also had to be relied on in connection with common law negligence.
In relation to regulations 17 and 18 of the Workplace (Health, Safety and Welfare) Regulations 1992, I entirely agree with everything my Lord has said, and there is nothing I need to add.
I would dismiss this appeal.
LORD JUSTICE BROOKE: I agree with both judgments. The appeal is dismissed.
ORDER: Appeal dismissed with costs.