Hide v The Steeplechase Company (Cheltenham) Ltd & Ors

According to HHJ Charles Harris QC, Cheltenham Racecourse is widely regarded as the best steeplechase course in England. I see no reason to doubt this accolade in any way. Unfortunately Mr Hide, an experienced professional jockey who won his first race at the age of 17, sustained a serious injury at the first hurdle of the first race of the day on 11^th November 2006.

He was riding a horse called “Hatch a Plan”. The race was 2 miles in length and included several hurdles. A guard rail about 4 feet high ran around the outside of the track primarily to contain loose horses. A rail also ran intermittently on the inside of the track. Due to their intended purpose, the rails were built to be quite strong; they were made of PVC or some plastic material and secured into the ground by upright posts also of plastic on top of metal spigots. The upright posts were padded for 20 to 25 yards following each hurdle. Mr Linley, the Senior Inspector of Courses for the British Horseracing Authority, gave evidence that the padding was 2 to 3 centimetres thick.

The first of the hurdles was located approximately 100 yards from the start. It was 20 yards wide and set up towards the outside of the track; there was a distance of approximately 4 feet between the outside edge of the hurdle and the guard rail. The hurdle itself was described as being “fairly modest”. The total width of the track where the hurdle was positioned was 46 yards.

During the race, Mr Hide jumped over the hurdle towards its right hand side approximately 13 feet 6 inches (or 4 and a half yards) from the outside guard rail. After clearing the hurdle, his horse stumbled and fell. The horse careered sharply to the right, which caused Mr Hide to fall from his mount; he hit the ground and then moved (at speed) side ways or backwards into contact with one of the guard rail upright posts hitting it with his left hip. The judge found that it was a very unusual type of fall which would not have been expected or reasonably foreseen. Mr Hide sustained a fractured pelvis and a head injury. Happily he has made a good recovery. Damages have been agreed at £58,000 if the defendant is liable.

In an action which was not commenced until 9^th November 2009, and regrettably not brought to trial until June 2012, Mr Hide sought damages against the management of the racecourse. Three bodies were joined. The second defendant, Jockey Club Racecourses Limited, is the correct defendant and nothing turns on the joinder of the other two defendants.

Mr Hide relied largely upon regulation 4 of the Provision and Use of Work Equipment Regulations 1998 (“the Regulations”) which provided that work equipment is to be so constructed or adapted as to be suitable for the purpose for which it is provided.

Mr Hide’s contentions before the judge were that the hurdle, not itself the subject of criticism, was placed too close to the perimeter railing, which was itself said to be too unyielding and/or insufficiently padded. The judge dismissed the claim holding that both the hurdle and the guard rail were suitable equipment.

As a licensed course, Cheltenham had to comply with General Instructions issued by the British Horseracing Authority (“the BHA”). These instructions take into account any input from the Professional Jockey Association, the National Trainers Federation and the Racecourse Association. Before the season began in October Mr Linley spent 3 hours at the course measuring fences, checking the rails and positions of the hurdles. His report of 24^th October said:-

The running rails and the uprights had been supplied by Duralock UK Ltd, a market leader in Western Europe and the Middle East. They had been tested by the Rubber and Plastic Research Association at Shrewsbury and approved by the BHA. The judge said that there was no expert evidence about the effectiveness of the padding but the BHA General Instructions did contain the following provisions:-

The judge summarised the position in this way:-

Having set out the relevant terms of the Regulations he then reached the following conclusions:- (1) both the railings and the hurdles were work equipment from the point of view of the employees who put them up; (2) Mr Hide used the hurdle but not the railings; (3) there was nothing wrong with the hurdle; (4) the railing was a suitable railing; (5) Mr Hide had not established that the padding was unsuitable; and (6) the relative disposition of the hurdle and the railing did not make either of them unsuitable for the purpose for which they were used or provided. He described the question whether the relative disposition of the hurdle and railing rendered them unsuitable for the purpose for which they were used or provided as lying at the heart of the case and said this at his point of decision:-

As I read the above paragraphs the judge is applying the phrase “reasonably foreseeable” as a common lawyer would in resolving a case of negligence and then says that the layout of the hurdle and the rail is likely to be suitable

It is now necessary to set out the relevant provisions of the Regulations and of the Directives pursuant to which the Regulations were enacted.

to a self-employed person, in respect of work equipment he uses at work;

subject to paragraph (5), to a person who has – control to any extent of –

work equipment;

a person at work who uses or supervises or manages the use of work equipment; or

the way in which work equipment is used at work,

Regulation 4 provides:-

Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

In this regulation “suitable” –

subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person; …”

These regulations were implemented pursuant to the United Kingdom’s obligations under both what is generally known as the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC). The preamble to the Framework Directive provides:-

Relevant Articles are Articles 1, 2(1), 5 and 6:-

The Use of Work Equipment Directive provides:-

Two points may be made at once. First, although the Directives apply only to workers and employers, the Regulations apply to any person who has control to any extent of work equipment to the extent of that control. They therefore cover a wider area than the Directives. That is important for Mr Hide who, as a jockey, is not of course employed by any of the defendants. Secondly the Directives (and therefore the Regulations) apply to leisure activity by virtue of Article 2.1 of the Framework Directive.

A third point central to the present case is that, whereas both Article 3.1 of the Use of Work Equipment Directive and Regulation 4 of the Regulations impose a requirement that work equipment is to be suitable for the purpose for which it is used and (expressly or by necessary implication) that that work equipment can be used without impairment to health and safety, the Directives do not anywhere define the word “suitable”. Regulation 4(4) does, however, state that “suitable” means

The concept of reasonable foresight is thus introduced into our domestic Regulation but is absent from the Directive. The question therefore arises whether the Regulation has correctly implemented the Directive.

In Robb v Salamis [2007] ICR 175, [2006] UKHL 56, the pursuer was injured when descending from the top-tier bunk in his oil rig accommodation because the ladder he used for the purpose was not properly engaged within its retaining bars. The House of Lords held that that ladder should have been clamped or otherwise fixed to the side of the bunk. They held that it was reasonably foreseeable that that failure would affect the health and safety of any person and that there was therefore a breach of Regulation 4. It was, therefore, unnecessary for them to consider whether the reference to reasonable foreseeability was a permissible transposition of the Directive. Lord Clyde, however, said this:-

As Lord Clyde says it is difficult to see any origin for Regulation 4(4) other than Article 5(4) of the Directive. As he also says, Article 5(4) speaks of excluding liability where occurrences are

occurrences due to unforeseeable circumstances beyond the employers’ control; or

occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care.

In these circumstances it is difficult to say that the introduction of the concept of reasonable foreseeability in Regulation 4(4) means that the Directives have not been appropriately or accurately transposed into English law. It must be the case, however, that the words “reasonably foreseeable” fall to be construed so as to be consistent with the limited concept of foreseeability envisaged by the Directive. Article 5(4) allows member states to opt to provide for the exclusion or limitation of an employer’s responsibility in respect of each of the two categories of occurrences referred to above. Since the option allowed is to exclude or limit what would otherwise be the employer’s (or another defendant’s) liability, it seems to me that it must be for the defendant to prove that any relevant accident was due either to unforeseeable occurrences beyond the defendant’s control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care. So construed the Regulation will be consistent with the Directive.

Approaching the matter in this way would then also be consistent with Lord Rodger’s speech in Robb v Salamis when he said (para 53):-

Once, therefore, the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were “unforeseeable” or “exceptional” in the sense given to those words by the Directive.

It follows from all this that the judge was, with respect, incorrect to import into Regulation 4 the “classic common law phrase” of “reasonable foreseeability” and then dismiss the claim on the basis (1) that the way in which Mr Hide was injured was very unusual and (2) that the defendant had abided by all the requirements of the BHA and could not be expected to do more. Those factors might once have excused a defendant in a case brought at common law (although the relevance of the first factor may even then be questionable in the light of Hughes v Lord Advocate [1963] AC 837) but the Directives and therefore the Regulations exist in a world different from the common law. Adapting the words of Lord Rodger in Robb the primary purpose of the relevant regulations is to ensure that employers (and other defendants) take the necessary steps to prevent foreseeable harm coming to their employees in the first place and the defendant’s obligations are triggered if it is reasonably foreseeable that an employee might injure himself. As the judge himself said (para 54) an accident of the kind that happened to Mr Hide, while not at all likely, was possible and in that sense foreseeable. If it happens, it will be for the defendant to show that it was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided.

This the defendant cannot do. Quite apart from the fact that the defendant did not plead any such unforeseeable circumstances or exceptional events (which is perhaps understandable since the potential difficulties raised by the transposition of Directives into the Regulation only emerged fully in the supplemental skeleton filed on behalf of Mr Hide shortly before the hearing), it is difficult to see what unforeseeable circumstances or exceptional events could be relied on. I do not myself see that an unusual fall could be classified as either. Even if it could, the circumstances of that fall cannot be said to be beyond the control of the defendant or to have engendered events which could not be avoided despite the exercise of all due care. The padding of the uprights of the guard rail could have been thicker; the hurdle could have been placed at a greater distance from the guard rail. The defendants cannot show that if either or both precautions had been taken, Mr Hide would inevitably have suffered the injury which he did. I should perhaps add that not only the hurdle but also the guard rail were, in my view, being “used” as “work equipment”. The fact that Mr Hide did not expect to come into contact with the guard rail does not mean that he was not using the guard rail.

In a spirited response to Mr Christopher Sharp QC’s arguments for Mr Hide, Mr Peter Cowan submitted:-

Regulation 4 was no more favourable to a claimant than the common law;

there had been no accidents of a similar kind in the past in which a jockey had been injured by contact with an outer guard rail near a hurdle;

it was sufficient for the defendant to have complied with BHA’s General Instructions;

if reasonable foreseeability in the common law sense could be implied into section 29(1) of the Factories Act 1961 as the majority of the Supreme Court held in Baker v Quantum Clothing [2011] 1 WLR 1003; [2011] UKSC 17, so it should be implied into the Directive and thus the Regulation;

breach of the Regulations constituted a criminal offence under the Health and Safety at Work Act 1974 and in case of ambiguity should therefore be construed against a claimant and in favour of a defendant.

I have already made clear that I cannot accept the first submission. It is inconsistent with the thrust of Robb v Salamis in that it tends “to limit the broad protection which the regulations are intended to provide”.

It follows that submissions two and three cannot conclude the matter in favour of the defendant. They are indeed not very relevant anyway if the question is whether a defendant can rely on unforeseen or exceptional circumstances beyond the defendant’s control or which could not be avoided by the exercise of all due care. As Lord Hope indicated in Robb v Salamis (para 24) the whole point of the Regulation is that accidents should be anticipated. Moreover on a point of fact there had been a not totally dissimilar incident at Newton Abbot in 1999, although it seems that there the upright did not consist of metal but rather of firm PVC or plastic.

As to the fourth submission it is true that Lord Mance (at para 72) pointed out that Lord Hope had in Robb v Salamis confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive and that Lord Dyson (at para 111) said that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer. But the provision of the Factories Act 1961 which was being construed requires every place at which any person has to work to be made and kept safe

It is true that a breach of the Regulations can give rise to criminal liability. But the Regulation is to be regarded as giving rise to a form of liability which is a stricter liability than at common law. It would be wrong to dilute the liability aspect of the Regulations when questions of the degree of fault can always be taken into account in sentencing.

In spite of these arguments I would for the reasons given allow this appeal and enter judgment for Mr Hide.

I agree with both judgments.

I have not found this an easy case. The difficulty, for me, principally arises out of the context which has given rise to this claim and the applicability of the Regulations to this claim.

In this regard, two features stand out:-

First, jump racing is dangerous. Those who participate in it know it to be so. To be a jockey takes a great deal of guts as well as a great degree of skill. There was, as the trial judge noted, evidence from one top former professional jockey that in jump races he had fallen in around eight to ten per cent of his races. In hurdling, the evidence was that between two and four per cent of runners typically may fall. Injury, potentially serious, is a consequential foreseeable hazard. Risk is thus inherent in the sport. Indeed it is risk that plays a part in contributing to uncertainty of outcome: which itself is an essential element of the sport.

Second, it is perhaps a natural instinct to assess the liability of a racecourse by reference to yardsticks of reasonableness. In the present case, for example, Cheltenham Racecourse, as was found, prides itself on its attention to safety considerations. Various safety reports and checks undertaken regularly gave glowing commendations and assessed the set-up to be safe. There was full compliance with instructions and guidance from the BHA (albeit the BHA did not itself purport to ensure compliance with Health and Safety requirements for any particular course) and other relevant bodies. No relevant concerns had previously been raised. The trial judge found that there was no failure to take reasonable care at common law and no failure to take such care as was reasonable in all the circumstances for the purposes of the Occupiers’ Liability Act. An application for leave to appeal against those findings was refused and not renewed.

However, the Regulations – reflecting the relevant Directives – are in altogether more uncompromising terms. In particular, the opening language of Regulation 4(1) and (3), as does the language of Article 5.1 of the Framework Directive, imposes an obligation on an employer to “ensure” an outcome. The relaxation sanctioned – intended, it is to be inferred, to accord with Article 5.4 – is that set out in Regulation 4 by reference to the definition of the word “suitable”. It is that which brings in the notion of reasonable foreseeability. As to this, I agree with the analysis of Longmore LJ as to the proper interpretation and application of Regulation 4 having due regard to Article 5.4 of the Framework Directive.

It might seem an oddity that the Regulations can apply to a case such as the present at all. This was hardly an accident befalling an employee at the workplace of the typical kind or as ostensibly contemplated by the Directives. But the Regulations are (as was common ground) so drafted as to be capable of applying to a self-employed professional jockey such as Mr Hide. Further, the trial judge carefully considered whether railings and hurdles at a race track could constitute “work equipment” for the purposes of the Regulations. He noted that “work equipment” has a broad meaning and concluded that they did constitute work equipment. There is no appeal from that finding. The judge also held that there was “use” of the hurdles for the purpose of the Regulations. There is no appeal against that finding either. (In common with Longmore LJ, I would also incline to think that – on the judge’s approach – the railing also should have been found to have been “used”, for the purposes of the Regulations.)

Once it is accepted that the Regulations apply to what happened here then the outcome cannot be determined simply by the application of common-law principles. With all respect to the judge, in what was a very careful and thorough judgment, I think that his reasoning was vitiated by the approach he adopted in that regard: in particular that set out in paragraph 52 of his judgment, which in effect conflates common law principles with the requirements of Regulation 4.

Given the relatively stringent nature of the Regulations, I have concluded that the overall outcome has, on the particular facts, to be one in favour of Mr Hide. What happened here was reasonably foreseeable, for the purposes of Regulation 4, even if the way in which the accident actually happened was most unusual and hitherto unprecedented. I thought, in fact, that there was a great deal of force in Mr Sharp’s blunt and simple submission that an accident of this type (in the sense of collision with the upright of the outer railing at this location) was not only foreseeable, it had in fact been foreseen: the placing of the padding round the upright of itself evidenced that. But, as it seems to me, even that was not a necessary feature for liability to exist in this case. As Lord Hope said in Robb v Salamis at paragraph 24:

It is of note that the judge, having at paragraph 17 of his judgment expressly found in the present case that this was “not a fall of a type which would have been expected or reasonably foreseen”, at a later stage (after recording that the various witnesses thought that an accident of this kind was not “at all likely”) himself went on in terms to state that “of course it was possible and in that sense foreseeable”: paragraph 54 of the judgment.

The judge also referred to the “remorseless march” of health and safety legislation (“health and safety gone mad” is a familiar enough popular expression of disapprobation in various contexts). But the Regulations do not impose strict liability on an employer in the position of this racecourse. A defence, by reference to “suitability”, is available.

Such an approach does not require Cheltenham Racecourse, or other racecourses, to achieve the impossible. In the present case evidence was adduced on behalf of Mr Hide (including from Mr Meade, an equestrian expert) as to possible ways of avoiding or mitigating the risk posed by this particular collocation of hurdle and railings: for example, creating a safer distance between landing area and railings; reducing the rigidity of the upright posts; and/or the provision of more substantial padding. I agree, however, with Longmore LJ that it was not for Mr Hide to prove the availability of effective remedial options: it was for the racecourse to show (if it could) that the consequences for Mr Hide from this accident could not have been avoided despite the exercise of all due care for the purposes of Regulation 4. I observe, for example, that in the present case there was, as the judge found, ample land available beyond the outer railings at this point to permit the railings to be set further away from the hurdle, and thereby create the potential for a safety “lay-by”. But the racecourse had wished to preserve such extra land without use or marking for the later March meeting. The evidence, I add, also was that, after this accident, the racecourse changed to the use of wooden uprights (albeit it seems that at some stage they subsequently departed from that). At all events, there was no finding that taking any such step – or any of the steps suggested by Mr Meade – still would not have precluded the injury here resulting.

The judge was concerned about the implications of a conclusion in favour of Mr Hide. He was concerned about “the relentless logic of the personal injury lawyer”, as he put it. Were jump races to be required to be made so undemanding that all horses could be expected to negotiate them without mishap? How were the requirements of the Regulations to apply, for example, to Beecher’s Brook at Aintree? These are understandable concerns. But they will not profit from an attempt at generalised answers. Of course the hazards of jump and hurdle racing may lawfully remain: jumps and hurdles may properly and lawfully continue to pose challenges of varying difficulty. As Mr Sharp pointed out, however, the adjustments to the layout or construction of hurdles and/or railings mooted in this case did not affect the “integrity and ethos” (in his phrase) of jump or hurdle racing. What was fundamentally at issue here was not the suitability of this hurdle, taken on its own, or the suitability of the railings’ upright, taken on its own. It was a combination of matters: the location of this particular hurdle so close to this railings’ upright (with its particular construction) that gave rise to the problem.

The point this case establishes, therefore, is that it is not enough for a defendant, where Regulations apply, simply to comply with the requirements of reasonableness imported by the common law or the Occupiers’ Liability Act. Where the Regulations apply, the test for an employer (or one in a position comparable to an employer under Regulation 3) is stricter. If, in any particular case arising hereafter, it is shown that what occurred was due to unusual and unforeseeable circumstances, beyond the employer’s control; or if it is shown that what occurred was due to exceptional events the consequences of which could not have been avoided despite the exercise of all due care: then that will mean the employer will have no liability. That, it can be accepted, may be in some situations onerous for an employer. But the Regulations are evidently designed to be stringent; and the test laid down is in general terms workable.

For those reasons, and for the reasons given by Longmore LJ with whose judgment I agree, I also would allow the appeal.