Cockerill v CXK Ltd & Anor

Introduction

This case is about a personal injury sustained by the claimant in an accident at work. She was visiting unfamiliar premises in the course of her duties. She let herself in by opening an entrance door and, having observed a warning sign on the door, carefully and successfully negotiated a 7 inch doorstep down into a small lobby. From there, the only way through into the rest of the premises was by turning immediately left and entering through a doorway into a kitchen area beyond. As she did so, she fell down a second 7 inch doorstep from the lobby down into the kitchen area, and hurt her ankle.

This happened at about 9.30am on the morning of 1^st October 2013. It is a date of obvious significance for the claimant in the circumstances. Her case is that the injury she received that day proved to be life-changing. It is also a date of some significance in the legal world. It was the day of the coming into force of section 69 of the Enterprise and Regulatory Reform Act 2013, a provision designed to effect some degree of rebalancing in the legal relationship between employers and employees in the field of health and safety at work.

Background

The claimant brought these proceedings against both her employer at the time, and the occupier of the premises on which the accident occurred.

The Premises and the Occupier

The premises, in St Luke’s Avenue, Ramsgate, Kent, were built as a primary school in 1875. The building is now known simply as The Avenue. It is owned by Kent County Council. As might be expected of a former Victorian school, it contains some large hall spaces and a range of smaller rooms, together with communal facilities. KCC used to rent out spaces in the building to local businesses and organisations, and it was also used as a youth centre. But in 2012, KCC advised that it was having to consider selling the building, for financial reasons.

One of the businesses which had been using the premises for some time was run by Ms Martine Newton. She was running an after school club there for local children. She was sorry to think of the premises ceasing to have a community function, and negotiated with KCC to take a lease on the whole premises herself from 1^st January 2013. She formed a Community Interest Company in March 2013 – Artwise Community Partnership – to manage the premises. She was its sole director, but was considerably assisted (on a voluntary basis) in the practical management and maintenance of the building by her partner, Mr Chris Wilkins. Mr Wilkins was a qualified mechanical engineer; he was retired, but had previously been in charge of health and safety in an engineering factory.

Artwise made spaces in The Avenue available for hire. They were used for one-off events, and for regular bookings by local sports and social groups and community organisations, and provided low-cost offices for start-up businesses. Ms Newton continues to use it for her own businesses (now including a nursery) and pays Artwise to do so. The Avenue is a busy place and well-used – estimates of footfall in an average week were around 200-300. Artwise also does wider outreach work in the community on a voluntary basis. It more or less breaks even financially (a loss of around £2,000 in 2016, a profit of around £500 in 2015). It does not pay Ms Newton or Mr Wilkins a salary.

Artwise, the occupier of the premises on which the accident occurred, is the second defendant in these proceedings. Both Ms Newton and Mr Wilkins provided written and oral evidence.

The Employer

The first defendant, CXK Limited, is a charity which operates in Kent, Medway, Essex and Sussex to support children, young people, adults and families. Its aim is to make a difference to the lives of people across the South-East of England “so that everyone can maximise their potential and achieve their aspirations”. It provides support, advice and guidance services to help people progress into meaningful employment, education or training. It operates on a ‘partnering’ basis with local authorities, regional education providers, national charities and trade associations, as well as employers and research bodies.

The Prince’s Trust is a well-known charitable organisation, founded by HRH The Prince of Wales to “create brighter futures for young people aged 11 to 30, empowering them to get into jobs, education and training”. The Prince’s Trust works with organisations across the UK to deliver locally ‘The Prince’s Trust programme’. This is a 12-week programme aimed at young people from 16 to 21 who are not in employment, education or training. It is designed to give them skills and confidence to improve their prospects of employment.

CXK had made a successful bid to deliver The Prince’s Trust programme in the Thanet area, in furtherance of the objectives of both organisations. It nominated one of its employees, Ms Emily Upfield, to lead a team to deliver the programme. That involved identifying the young people who were to benefit from it, recruiting them to the programme, and organising the delivery of the relevant programme content, support and services to them.

Ms Upfield, as team leader, needed to locate and secure a suitable venue for the local programme. It had to be free or low cost. She booked some space in The Avenue. As principal witness for CXK, she provided written and oral evidence in these proceedings.

The Claimant

The claimant herself, Ms Janice Cockerill, was also employed by CXK. She had 22 years’ experience as a careers adviser, and worked in CXK’s ‘adults team’. She was told by her manager about CXK’s success with The Prince’s Trust bid, and was asked to liaise with the relevant course leaders.

Ms Upfield invited her to present the inaugural Prince’s Trust talk to the young people CXK had recruited to the programme which was to be delivered at The Avenue. She was on her way to do so when the accident happened.

There was no dispute that both defendants owed the claimant a legal duty of care. Different legal regimes apply in each case.

Employer’s duty of care

The effect in this case of section 69 of the Enterprise and Regulatory Reform Act 2013 (‘the 2013 Act’), which amends the Health and Safety at Work etc Act 1974, was not disputed. The case proceeded on the agreed basis that there was no longer a self-standing cause of action available to the claimant for any breaches of the statutory duties of employers under what have become known as the ‘six pack’ of health and safety regulations. Her only cause of action against CXK lay in common law negligence – in other words, by establishing that the common law duty of care owed to her by her employer had been breached, and that that breach had, foreseeably, caused her accident.

No cases on the effect of the 2013 Act were cited to me. For guidance on the nature of the duty of care now owed by employers at common law, I was taken to two sources of law. The first was the pre-existing caselaw on employers’ liability at common law, developed before the statutory health and safety regulatory regime came into existence. I was taken to some of that earlier caselaw – some of it considerably earlier – in the course of legal argument, and consider its application further below. But the essence of the employers’ duty at common law, briefly stated, is to take reasonable steps to provide a reasonably safe place of work, and system of work, for their employees, so as to protect them, so far as reasonably practicable, from reasonably foreseeable harm. The caselaw is clear about the importance of context, in understanding what is reasonable, and in giving detailed meaning to that duty, in individual cases.

The second source was the statutory health and safety regulatory regime itself. The claimant’s case – and, again, this was not disputed – was that in considering the nature of the modern common law employers’ duty it is still permissible to have regard to the statutory duties, to understand in more detail what steps reasonable and conscientious employers can be expected to take to provide a reasonably safe workplace and system of work.

Care is needed with this analysis. In removing the claimant’s cause of action for breach of statutory duty, the 2013 Act did not repeal the duties themselves. Those duties continue to bind employers in law. So they continue to be relevant to the question of what an employer ought reasonably to do. However by enacting s.69, Parliament evidently intended to make a perceptible change in the legal relationship between employers and employees in this respect. It removed direct actionability by claimants from the enforcement mechanisms to which employers are subject in carrying out those statutory duties. What I have referred to as this ‘rebalancing’ intended by s.69 was evidently directed to ensuring that any breach of those duties would be actionable by claimants if, but only if, it also amounted to a breach of a duty of care owed to a particular claimant in any given circumstances; or in other words, if the breach was itself negligent. It is no longer enough to demonstrate a breach of the regulations. Not all breaches of the statutory regime will be negligent. Before the 2013 Act, the statutory regime had produced results in which employers were fixed with legal liability for accidents even where they had taken reasonable precautions against them. Stark v. Post Office [2000]EWCA Civ 64 became a well-known example. A component in a postman’s bicycle gave way even though the machine had been sensibly maintained and checked; the Post Office was held liable to the claimant even though it had not been negligent. Section 69 changed that framework, with a view to producing different results.

In this case, accepting that the claimant would now need to prove negligence against CXK to succeed against them, her counsel Mr Grant suggested that there were two provisions of the ‘six pack’ in particular which were of continuing relevance in considering the content of the duty of care they owed to her.

The first was regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, which provides that:

“Every employer shall make a suitable and sufficient assessment of

(a)

the risks to the health and safety of his employees to which they are exposed whilst they are at work;

(b)

…

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…”

The second was regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, which provides that:

“(1)

Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2)

Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -

(a)

the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety.

…”

It was agreed that at the time of the accident, the claimant was at her place of work for these purposes. Whether the duty of care owed to her had been breached by her employer, the nature of any breach, and whether any breach had caused her accident, were all disputed.

Occupier’s liability

The claimant’s case against Artwise was brought under section 2 of the Occupiers’ Liability Act 1957, which provides:

“Extent of occupier’s ordinary duty

(1)

An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3)The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a)

an occupier must be prepared for children to be less careful than adults; and

(b)an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4)In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a)where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b)…

(5)The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

(6)

…”

Again, it was not disputed that the claimant was a lawful visitor at The Avenue for these purposes. Breach of duty by the occupier, Artwise, and causation were disputed.

Litigation procedure

The claimant commenced proceedings on 28^th September 2016. By order of Master McCloud of 25^th July 2017 the case was to be tried in the first place on the issue of liability, and (if relevant) the issues of contributory negligence and contribution/indemnity as between the defendants. This judgment addresses those issues alone.

To succeed in fixing liability for her accident on either defendant or both, the initial burden of proof was of course on the claimant to establish on the evidence, on the balance of probabilities, both breach of duty and causation. The only evidence led by Mr Grant was the claimant’s own.

There was considerable dispute about many details of the facts of the accident, and about the materiality of those facts and the inferences to be drawn from them. (I reflect on the reasons for that further below.) In the circumstances, I do not, and need not, attempt a comprehensive overview.

Instead, in the interests of a fair understanding of the parties’ developed cases and of clarity of analysis, I have grouped the factual issues into two broad themes which correspond to the principal elements of the claimant’s case. At the heart of this case, after all, is the search for an answer to the question: why, in the circumstances and course of events that happened, did the claimant fall down the step? The answers she herself suggested were (a) because the connecting door between the lobby and the kitchen area was propped open at the time and (b) because, from her direction of travel, the step was insufficiently clearly identified or identifiable.

The open door

The facts which were not in dispute were these. There was a door between the lobby and the kitchen area. It opened out of the lobby into the kitchen, hinging back on the left hand side as you approached it from the lobby; the handle on the right. It had a self-closing mechanism and a buzzer and intercom system so that when it was closed a visitor could attract the attention of others within the building in order to be admitted. It had a large glazed window in the upper part, down to about handle height. When the door was closed, the step down into the kitchen area, which lay just beyond it, was not visible. There was clear signage on the lobby side of the door warning of the step beyond. On the day of the accident, the door had been propped open to an extent that that signage would not have been visible when the threshold from the lobby to the kitchen was approached.

The claimant observed with some feeling during her oral evidence that if that door had been shut at the time, the accident would not have happened. On this counterfactual, she said, she would have buzzed for admission, had the warning signs in front of her as she waited for someone to come, and then, when the door was opened, would have negotiated the step with the same care she had just used in stepping down into the lobby as she entered the building in the first place. She might have seen the person opening the door step down themselves, or seen them at the lower level, and if all else had failed the person might have helped steady her or break her fall.

This counterfactual, powerful though it sounded, was challenged by the defendants. They said it did not speak for itself in the way for which the claimant contended. The significance, and relevance, of the open door was a matter of some dispute.

The claimant’s case was that the (closed) door was a significant health and safety ‘control’ measure to mitigate the inherent falling hazard posed by the step. In support of that view, Mr Grant drew attention to the risk assessment (RA) which Mr Wilkins had undertaken of the premises in February 2013, shortly after Artwise took over the lease of The Avenue. Mr Wilkins was experienced in undertaking health and safety RAs; the general competence of this RA exercise was accepted for present purposes.

The RA had two references to the door in question, one as part of the assessment of risk in the lobby area, and one as part of the assessment of the risk in the kitchen area. The ‘lobby risk’ of the door was identified as ‘slips, trips, falls’, and the mitigations as ‘security door only opened from inside or by user group with keys; signs to say mind the step; hazard tape on nose of step; intercom system to announce arrival; door is self closing’. The risk was rated as ‘medium’. The ‘kitchen risk’ of the door was identified as ‘trips, slips, falls’, and the mitigations as ‘step up to door highlighted on nose with hazard tape; security lock to ensure children don’t open door’. It was rated as ‘low’.

Mr Grant argued that this presented a picture of the step as a significant hazard, even, he suggested, the greatest hazard in the building – with more different controls than any other risk identified in the RA – and the closed door as an important part of managing that risk. He drew further support for that analysis from two other sources: the practice to which Ms Newton testified of Artwise instructing all their hirers that it was (at least) good practice to keep the door shut at all times; and a change to the terms and conditions of hire (made some time after the accident, in June 2017) to include, under the heading ‘cleaning and security’ a new bullet point in bold:

This account of circumstances put forward by Mr Grant was not an analysis, however, with which the defendants agreed, and nor, under cross examination, did either Ms Newton or Mr Wilkins. Against it, they made the following points.

First, it was the closed door that was itself the ‘slips, trips, falls’ hazard, from the lobby side. Just as with the outer door, it concealed a doorstep beyond. Just as with the outer door, it was necessary to put warning signage on the door so that, when shut, it would be opened carefully and observantly, and the way ahead noted and safely traversed. That accounted for the difference in the tripping hazard rating of the door from the lobby and the kitchen approaches respectively.

Second, the door was clearly identifiable as a security door. That was its main function. The buzzer and intercom system were obvious signs of that. Security was a significant consideration for premises with so many multiple users coming and going. Its most important aspect was ‘safeguarding’. The premises were regularly used by children, including those attending Ms Newton’s after school club (and, later, nursery). It was important that unauthorised people did not have access to the building while the children were there. Neither the club nor the nursery was using the premises at the time of the accident; there were no young children present.

Third, in so far as there was any health and safety dimension to the desirability of keeping the door closed, the principal issue it was addressing was the risk of very young children running out into the street outside, and the security lock to the door was fitted to make sure they could not open the door from the inside. The door was not, apparently, a fire door (in the technical sense of being designed for the prevention of the spread of fire, and therefore needing to be kept closed for that reason). Fire doors were separately identified in the RA. Specific instructions were recorded there, as ‘controls’, about keeping fire doors shut (for example a fire door from the kitchen area into a corridor was “to be kept shut and not fixed open”, and another passageway door was noted as having “Fire door signs to say keep shut. Do not wedge open.”). No such controls were identified in the RA for the lobby/kitchen door. Other doors with threshold tripping hazards identified in the RA, for example the door to the drama room, had no reference to keeping the door shut – the threshold in that case was simply to be marked with hazard tape.

And fourth, the change to the terms and conditions, with the new paragraph in bold mentioning the health and safety, as well as the safeguarding, issue, was inserted not in response to the claimant’s accident, but in response to a later security incident. An intruder was caught on CCTV in the kitchen area, going through the pockets of coats which were hanging up there. The door at the time, although closed, had been left on the latch. The health and safety reference was, again, said to be a reference to the danger of children running outside. The new condition was listed under a ‘security’ heading.

I consider the implications of these different accounts, and the claimant’s own ‘counterfactual’, for the potential liability of the defendants further below. In all events, the fact of the matter was that the door was open at the time of the accident, and so it is necessary to consider the claimant’s approach to the step in those circumstances in which she was left to make it.

The view of the step

The claimant’s account of the accident was that she simply did not see the step. She suggested, and gave evidence of, a number of reasons to explain that.

The first had to do with lighting conditions. She described the lobby itself as dim or dingy, and the ceiling light there as having been off. She was clear that the kitchen area was “much brighter”. She described being ‘drawn’ towards the kitchen, not just because that was the only way forward from the lobby, but by the light there, and by the sound of two female voices in conversation (one of these belonged to Ms Upfield, the other to a parent of one of the young people on the programme). The lights may or may not have been on in the kitchen, but there was a large window to the left as you entered it from the lobby, some 8 feet away from the door. The weather conditions were evidently unremarkable for a morning in early October – dry, overcast.

The parties went to some efforts at trial to endeavour to reconstruct the lighting conditions the claimant faced on the day. It was agreed that as the claimant turned to pass through the open kitchen doorway, the external door behind her closed itself (or was closed by her). That door was half glazed, and there was a small round window to the right of the external door as you entered. There were therefore two sources of natural light in the lobby. The walls of the lobby were painted either a lightish blue or a bright yellow/green; it is not clear which (probably the former) and I was not persuaded that a great deal turned on trying to resolve that question.

The important thing from the point of view of the claimant in any event, and this was not disputed, was not so much the absolute state of the lighting in the lobby, but the relative states of the lighting in the lobby and in the kitchen. The kitchen was clearly much brighter. The step itself was in the kitchen. It was subject to the ambient lighting conditions in the kitchen, not those in the lobby.

Among the materials before me in this case were a large number of photographs of the premises, taken over the years. There was a large batch made at the time Artwise took the lease of The Avenue in January 2013. There was a batch made by CXK’s loss adjuster in April 2015, in response to notification of this claim. There were photographs made more recently by Artwise. And there were a few in between. Nearly all of them were of very poor quality – overexposed, underexposed, out of focus.

These photographs were of particularly limited assistance, not to say positively misleading, on the question of light conditions. Some attempt was made, for example, to suggest that the photographs indicated a ‘dark spot’ in the kitchen around the area of the step, or that the step was otherwise invisible from the lobby. I was not convinced.

The defendants, with these difficulties no doubt in mind, proposed that I made a visit to the site, to assist in my evaluation of the evidence as to the effects of light in the building. (The application was opposed by the claimant on grounds of inconvenience.) I declined the proposal, on the basis that any such benefit was likely to be outweighed by the risk that, rather than assisting evaluation of the evidence, it would overlay that evidence with a vivid impression of my own which would then have to be recalibrated to the known or probable, and likely different, circumstances of the day of the accident.

What seems clear enough on the undisputed evidence is that the lobby, if less bright than the kitchen, was unlikely to have been so dark as to have been positively disorientating. That was not suggested by anyone. It was small, and the claimant’s evidence was that she was able to look around it (in the natural light available) and take it all in before turning to enter the kitchen. The kitchen itself was by all accounts well lit, if only by natural light. That was not disputed. There was an unimpeded view of the step through the open door, and no obvious source of shadow over the step. The daylight through the window was clear, but not harsh enough to create dramatic shadow contrasts (it was in part diffused by frosted glass in the lower part of the window). It seems to me on the balance of probabilities fair to conclude that on the day of the accident the step was reasonably well lit, and that any contrast between the lighting in the lobby and in the kitchen would only have enhanced its visibility.

The second issue which arises as to the view of the step from the lobby is the extent to which the step was marked, and stood out from its surroundings. The claimant’s initial evidence on this had been that she remembered the step itself as unmarked, and that there had been nothing but a ‘continuous stretch of blue/grey cement’ to be seen at floor level.

After all of the evidence was heard and looked at, however, Mr Grant made the wise concession, on her behalf, that she accepted she must have misremembered the step as having been unmarked. The photographic evidence, the RA, and Mr Wilkins’s evidence as to his practice, clearly indicated that the lip of the step was marked with yellow and black striped hazard warning tape at all relevant times.

The premises, a former Victorian primary school as will be recalled, had many single doorsteps and changes of level from one room to another. Mr Wilkins kept them all marked with the yellow and black tape, replacing it as necessary. Footfall tended to erode the black stripes printed on the yellow tape, leaving just the yellow. I am satisfied that the step in question was visibly marked at the time of the accident with yellow and black hazard warning tape, that the whole of the step was visible as so marked, and that any moderate wear would not substantially have reduced its visual impact. Any wear would have mainly affected the right-hand side of the step as approached, the side away from the hinge and from the window, and left the left-hand side of the step largely unaffected.

I am also satisfied on the balance of probabilities that the visibility of the step was further enhanced by the contrast provided with its blue/grey colouring by adjacent areas of dark matting on both sides. Non-slip matting was mentioned in the RA as having been provided both in the lobby on the approach to the door, and below the step into the kitchen area. It was consistently shown in the photographs, as indeed would have been expected in a passage through from the outside into a kitchen area, for wiping feet on wet days.

I am sufficiently satisfied therefore that, notwithstanding the claimant’s memory of an unbroken stretch of blue/grey cement, the vista from the lobby through the open door on the day of the accident was in fact more likely to have been a dark non-slip mat on the lobby side, then the surface of the step area in a contrasting blue/grey, then the strip of yellow and black hazard tape on the nose of the step, then the dark mat on the other side of the step, contrasting with the blue/grey of the rest of the kitchen area floor.

The claimant’s own clear and consistent evidence was that she approached the step and entered the kitchen looking straight ahead and not down at the floor. The final reason she gave for that was that there was no visible signage warning of the step. The signage on the door itself was not visible because of the angle at which it stood open. She did not remember any other signage.

The later photographs show, in the lobby, immediately facing you on entry from the outside, a large glass-fronted noticeboard which included a prominent notice with an arrow pointing towards the kitchen warning of the step. The evidence as to whether that noticeboard, and that sign, were there on the day of the accident was conflicting. I have concluded that the balance comes down in favour of proceeding on the basis that it was not. Mr Wilkins, who put the notice board up, was not confident as to the chronology, there was no documentary evidence produced about the purchase of the noticeboard, and the suppositions put forward each way by the parties were just that. I did not consider in these circumstances that I had been provided with a sufficiently secure basis for finding that this signage was available to warn the claimant of the step on the day of the accident.

The facts as I find them, therefore, were that the step was visible through the open door by reason of being within the good ambient light of the kitchen area, standing out in contrast to the non-slip mats, and being marked with hazard warning tape. The signage on the door was not visible to the claimant, and there was no additional visible signage drawing attention to the existence of the step.

In these circumstances, the claimant’s case on liability comes down to two propositions. The first is that the open door was a breach of the duties of care owed to the claimant, and caused her accident. The second is that more should have been done – by way of signage, lighting or extra strips of hazard tape – to warn of the step’s existence, and that failure to do so was a further or alternative breach of the duties of care owed to her, and caused her to miss noticing the step and therefore to fall.

On the facts of this case, there were many good reasons for both the occupiers, Artwise, and users of the premises, including CXK, to have wanted that door kept shut as a rule. Security was the most obvious reason. Safeguarding and protection when children were on the premises was another – keeping them safe from intruders and from running out into the street. On the morning of the accident, no small children were using the building. The young people were arriving and making their way through to the room that had been hired for the Prince’s Trust programme; CXK’s Ms Upfield was present in the kitchen area, where she could verify, facilitate, direct and if necessary challenge the visitors as they arrived. So neither security nor safeguarding was obviously being compromised by the open door at the relevant time.

To succeed on this ground in relation to the open door, the claimant needed to go beyond her counterfactual (‘but for the open door, the accident might well not have happened’). She needed to establish that the open door was itself a relevant health and safety risk, a failure of mitigation of the falling hazard of the step, and a negligent failure in the duty of care owed to her, either as employee or visitor, to take reasonable steps to protect her from reasonably foreseeable consequential injury. Whatever other reasons there might or might not have been for keeping the door shut, was there a duty to do so owed to her, relating to protecting her from falling over the step?

I am not persuaded that there was. The RA did not specifically mention a duty to keep the door permanently shut (fire doors were treated differently, by contrast), and that is not, in all the circumstances, surprising. This was a principal, busy entrance route into the premises. Apart from considerations of security and privacy (and draughts), doorways such as this one are for entering and passing through, dozens of people at a time as activities got under way in the mornings. It rather strains at the realities of everyday experience, whether in the workplace or elsewhere, to think of doors as being there as barriers to protect people from doorsteps. Certainly, Mr Grant’s attempt to portray this step as the most dangerous hazard in the building, needing to be kept behind a shut door, did not ring true. If the RA is read as a coherent whole, this building’s principal hazards were the usual suite of issues about fire, electricity, plumbing and kitchen use, together with the particular issues associated with keeping young children safe. The ‘trip, slip and fall’ risks of an old building like The Avenue had clearly been thought about by Mr Wilkins. There were many other steps around the building, adjacent to doors, where door closing was not mentioned or flagged as an issue in the RA, and where hazard tape was. The explanation for the range of ‘controls’ mentioned by the RA in connection with the lobby/kitchen door was more likely to relate to the fact that it performed many other important and obvious functions. I accept the defendants’ alternative submission that the more common sense explanation of the relationship between the door and the doorstep for the purposes of the RA was that the step presented a particular falling hazard when invisible by reason of the door’s being shut, as it usually was, to visitors arriving in the lobby.

It follows that I do not accept that it was a part of the duty of care owed to the claimant by either defendant, employer or occupier, to take reasonable steps to keep her safe from falling over the doorstep, that this door should be kept shut. Keeping the door shut – as was the practice for other reasons – on the contrary itself constituted a falling hazard for which other mitigations (warning signage on the door) were necessary. Its standing open on the morning of the accident did not in my view expose the claimant to a risk which its closure was designed or intended to prevent. Nor therefore do I accept that the door being open can properly be said in and of itselfto have ‘caused’ her fall in a legally relevant sense. The situation it created was that there was no check or obstacle to her passage and no visible verbal signage of the step. Those were the circumstances she faced on the day. Whether those circumstances, taken together, amounted to a breach of the duties of care owed to her, needs to be considered in the round and on their own merits.

What then were the relevant duties of care owed to the claimant, with particular reference to risk of falling down the kitchen step? Taking the duty under the Occupier’s Liability Act first, Artwise clearly owed the claimant the ordinary section 2 duty to take such care as in all the circumstances of the case is reasonable to see that she would be reasonably safe in using the premises for the purposes for which CXK had made their hire. That is a ‘double reasonableness’ test, and explicitly context specific.

In this context, Artwise needed to have taken reasonable care to see that visitors would be reasonably safe in entering the premises across the lobby/kitchen step. The Avenue was, it was clear to see, a period building in busy community use. It had been competently risk-assessed for those purposes. The step, with the kitchen door open, stood in plain view. It was reasonably clearly marked out on its lip with hazard warning tape. It was reasonably clearly lit. It was unimpeded.

Mr Grant had three suggestions as to why this state of affairs presented an insufficiently mitigated risk, and was therefore a breach of the occupier’s duty of care. There should have been even clearer marking out of the step. There should have been even better lighting – perhaps a spotlight – on the step itself. There should have been visible warning signs.

On the first of these, he pointed out that in fact, since the accident, further hazard warning tape had been applied – to the base of the door and to the step itself on the lobby side, which would be visible when the door was closed. He drew attention to parallels in this respect with the unreported case of Lawrence v. NCL (Bahamas) Ltd [2016] EWHC (Admlty) AD-2015-71, in which a cruise passenger tripped over a sill on board a boat. It seems that the sill had been marked at the time with some form of hazard marking tape, but that the application of marking tape had subsequently been improved. Admiralty Registrar Jervis Kay QC inferred (at paragraph 27e) that the marking was improved “after, and possibly because of” the accident, and noted that “the fact it had been improved indicates that the owners of the tender considered that an improvement needed to be made”. He concluded (paragraph 28e):

“The fact thatthe step or sill was a potential hazard is demonstrated by the fact that it had been marked long before the incident. In my view the fact that the marking was probably improved after the incident is indicative that it was insufficiently marked at the relevant time.”

Cases depend on their facts. Lawrence was a case in which the court was clearly focused on the needs of elderly passengers on unsteady boats. A contrasting position on post-accident improvements was taken by Kennedy LJ in Staples v. West Dorset District Council [1995] PIQR 439, where warning notices were put up after the event. Kennedy LJ observed:

“Of course, after the accident the position was different. The appellants then knew that a visitor had slipped off the edge into the sea, and, as responsible occupiers, they had to do what they could to prevent a recurrence, so they posted warning notices. The fact that they took that action after the incident does not enable me to draw the inference that, in order to discharge the common duty of care to the respondent, they should have done so before the accident occurred.”

There is no necessary logic that post-accident improvements must be taken to be suggestive of pre-accident deficiencies, even where, as in the present case, it was accepted that the improvements had been made in the light of the accident. When asked about the addition of extra tape, both Ms Newton and Mr Wilkins simply said they thought of doing it just to make things a little bit better. That is a natural instinct, and I am unable in this case to draw an inference of a previous breach of a duty of care from their having done so. I also consider that the new tape was unlikely to have made much difference, either in general or in the circumstances of this particular case. In the lighting conditions described by the claimant the new tape, in the comparatively less well-lit lobby, would probably have been less visible, as well as closer to the feet, than the tape on the step itself.

Should the step have been differently lit? I cannot find in this case that the state of the lighting of the step was an operative deficiency at the time of the accident. I cannot conclude that it is reasonable to consider Artwise, as a conscientious occupier, to be under a duty to spotlight steps on the premises, either in general or in particular. In any event, the kitchen was noted in the RA as having “many downlighters fitted in the suspended ceiling” already.

What about warning signs – was there a relevant duty to warn in this case? The defendants said not; they took me to Staples v. West Dorset District Council for the proposition that the duty of care under the Occupiers’ Liability Act does not extend to a duty to warn unless without a warning the visitor would have been unaware of the nature and extent of the risk. Or to put it another way, the question was whether there was any relevant danger of which visitors needed to be warned, by telling them something they did not already know. The Court of Appeal found there was no duty to warn in Staples, but the facts of that case were very different from the present one. Walking along the Cob at Lyme Regis while it was wet and slippery with algae was an activity of obvious inherent danger – and one with which the claimant was moreover familiar. The same is true of diving at night into the shallow end of a holiday swimming pool you have dived into before: Evans v. Kosmar Villa Holidays Ltd [2007] EWCA Civ 1003 [2008] 1 WLR 297 – another case in which there was found to be no duty to warn in circumstances where the warning would have told the claimant nothing he did not already know. In my view the same is also true of the case of Tomlinson v. Congleton Borough Council and another [2002] EWCA Civ 309 [2004] 1 AC 46 which the defendants additionally cited. This was a case on ‘the state of the premises’ under the Occupiers’ Liability Act rather than a ‘warning’ case, but the conclusion that there was ‘nothing special’ about the state of the premises and ‘no hidden dangers’ has to be put into the context of an activity – diving into a lake, to which the claimant was a regular visitor – which was inherently and unusually risky and known to be so.

These cases are all very different from the present case. Ms Cockerill was not engaging in an activity of heightened danger, was not familiar with the terrain and cannot very obviously be fixed with the sort of intention to persist in the knowledge of risk that played an important part in those cases. The defendants accepted that. They agreed that this was not a case in which a claimant must be taken to have accepted the heightened risks of what they were doing, and where they would not have been further influenced by a warning. The defendants instead made the different point that such danger as was posed by the step needed no warning (when the door was open) because it was entirely patent – the step was there to be seen and a warning would have added nothing relevant.

On this point they drew a distinction with Brioland Ltd v. Searson [2005] EWCA Civ 55, relied on by the claimant to illustrate breach of an occupier’s duty of care. There, an elderly wedding guest at a hotel tripped over an upstanding sill in crossing a threshold. The sill was visible, but it was not clearly marked as a hazard, or warned about. And it was an entirely unexpected feature of a hotel doorway. The primary liability of the occupier was held to have been established on those facts, but those facts also (apart from the warning notice issue) distinguish the case from the present in material ways. The step in the present case was clearly marked, and not a particularly unusual feature in itself. And the Court of Appeal in Brioland, upholding the trial judge’s conclusion on liability as being one “that he was well able to come to on the facts before him”, did observe that “it might not have been the conclusion of every judge” (paragraph 27).

The defendants also drew a distinction with the employer/occupier case of Home Office v. Lowles [2004] EWCA Civ 985 cited by the claimant. This was a case about, among other things, the extent to which the presence of a warning notice operated to discharge a duty of care, rather than a case about whether the absence of a warning notice failed to do so. There, again, the step was unmarked, and found to have been ‘at the top of a ramp where one would not necessarily expect there to be a step’. It was also a case in which the trial judge had “heard no evidence to suggest it was not reasonably practicable, in one way or another, to bring the surface at the end of the ramp flush with the interior floor of the portacabin, so avoiding or removing any step” (paragraph 6).

Artwise was running its community enterprise in a Victorian school building. Mr Grant accepted that it would not have been reasonable to have expected the step to have been removed, or ramped. As the photographs showed, there were steps at the thresholds of many of its doorways. Doorsteps are an ordinary feature of such buildings. The claimant had experienced a change of level immediately on arrival. The step down which she fell was marked with hazard tape, well-lit, unimpeded and without distraction – just a doorstep, there to be seen. In all these circumstances, the defendants argued, there was no duty to warn of the obvious.

With some hesitation, I have come to the same view. The hesitation relates to the relative steepness of the step, which would not necessarily have been apparent as such. On the other hand a 7 inch step is not egregiously out of the ordinary either. The claimant’s case as argued depended not on the height of the step but on its prominence; her case was not that the step was deeper than she expected but that she neither expected nor saw the step at all. The step itself, moreover, was marked and in plain sight. More than that, the claimant’s attention had been directed to ground level by the notice on the external door and by following its instruction to take care with her footing on entering the building. So far as signage is concerned, that could reasonably have been expected to help attract attention to the further marked step down immediately to the left, with the inner door open, even without a separate warning sign. In these circumstances, I find it difficult to conclude that there was more that Artwise should reasonably have been expected to do to keep visitors reasonably alerted to the presence of an inner door step. It was an ordinary sort of feature, in an ordinary sort of place, even if, like the outer step, perhaps a little deeper than would be expected in a modern building. It was in my view reasonable for Artwise to conclude that the depth of the step would be safely negotiated provided that the step itself was clearly identified. They ensured that it was plain to see, and marked along its length with hazard tape – all of which would have been visible with the door open, whether or not worn to the yellow in parts. That seems to me on the facts of this case to have been a reasonable response to the risk, foreseen in the RA, of a fall over the step. The best, the obvious, way to help people avoid a fall down a step, is to make it very visible (or to warn of its existence if invisible). I cannot find that Artwise should be fixed with liability for not having done more. I find that, in all the circumstances of this case, they took such care as was reasonable – by warning of the step with signs when the door was closed, and ensuring that it was clearly marked with hazard tape when open – to see that a visitor such as the claimant in this case would be reasonably safe in using it. I include in those circumstances the fact that they had warned visitors on the outer door to expect a step and could reasonably expect a visitor to have looked down on arrival in the lobby as a result and be in a good position to notice the visible hazard tape markings drawing attention to the further change in level. I do not consider in these circumstances that Artwise can fairly be said to have breached its duty of care to visitors to The Avenue such as the claimant.

Were CXK, as the claimant’s employers, in a position to have done more? Mr Grant took me as far back as Caswell v. Powell Duffryn Associated Collieries Ltd [1940] AC 152 and General Cleaning Contractors Ltd v. Christmas [1953] AC 180 for the propositions that an employer’s duty of care at common law extends to taking “reasonable care to lay down a reasonably safe system of work” which, importantly, allows for the fact that employees may not themselves take every meticulous care on their own account for their safety. Context however is everything. Unlike providing careers advice, both coal mining and window cleaning are occupations of inherent physical danger (and the public policy issues involved in liability for fatal mining accidents at a time when contributory negligence was a complete bar to recovery are a long way from the present case).

In looking at relevant public policy considerations, Mr Grant took me also to Kennedy v. Cordia (Services) LLP [2016] UKSC 6, and the reminder in the judgment of the Court (paragraph 108) that a higher duty of care is owed by an employer than would be owed to an ordinary member of the public on account of the fact that an employee “could not choose where or when she went” and “was obliged to act in accordance with the instructions given to her by her employers”. I agree that it is right to bear those considerations in mind in this case. Although Kennedy was not a case about a particularly inherently hazardous form of employment, it was a case of unusual hazard (snow and ice), and one in which there had been a history of similar accidents to that suffered by the claimant, and of which the employer was aware. The case is not therefore factually on all fours with the present case. But the principles I was reminded of – that an employer’s duty of care should recognise that an employee must go where she is sent, and cannot be held to unreasonable standards of assiduousness about her own safety – hold good for the present case.

Mr Grant also relied on Kennedy, and on Allison v. London Underground Ltd [2008] ICR 719, to draw attention to the important part that RAs play in the content and discharge of an employer’s duty of care. In that connection he drew particular attention to regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, set out above, and to which he suggested, in my view correctly, regard should be had in considering whether an employer has properly discharged its duty of care. As a result of s.69 of the 2013 Act, regulation 3 no longer creates an actionable duty on employers to carry out a RA. On the other hand, taking reasonable steps to be satisfied that workplace risks have been properly assessed and controlled is an obvious measure for an employer to take in discharge of its duty of care. The effect of the 2013 Act must in practice mean that, so far as an employer’s duty to an employee is concerned, its regulatory duty to undertake a RA must be borne in mind, and what it was reasonable for an employer to do or not do in this respect must be considered in context and in the circumstances of individual cases.

It is perhaps worth underlining this point, and specifically adopting the guidance provided (paragraphs 110-111) by the judgment in Kennedy:

“…a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. … The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk.”

In particular, “A negligent omission can result from a failure to seek out knowledge of risks which are not themselves obvious” – or, in the circumstances of Kennedy itself, a failure to seek out mitigations which might not themselves be obvious.

In the present case, CXK had not carried out a separate RA of its own when it hired rooms at The Avenue. Ms Upfield’s evidence was that she had been made aware of, and checked, Artwise’s February 2013 RA at the time of the hire, and knew that it was kept in hard copy at the premises. She was familiar with RAs; she had been given appropriate training and was used to assessing and managing risk in the workplace. It was also Ms Newton’s evidence that she made a regular practice of briefing hirers generally on the premises, and showing them round, as part of the process of concluding the hire and handing over the keys and security codes. She regarded this ‘tour’ as an important part of risk management, and was familiar enough with the February 2013 RA to have it ‘in her head’ for these purposes as well.

Mr Grant invited me to find a breach of CXK’s duty of care relevant to the accident in this course of events, and in particular to doubt the evidence of the defendants’ witnesses that the Artwise RA was properly checked and applied by Ms Upfield. I start by accepting that the duty to make a suitable and sufficient assessment of the risks to which the health and safety of employees are exposed at work is, at least in principle, capable of being discharged in an appropriate case by an employer satisfying itself that a competent and recent RA has been undertaken of premises to be visited in the course of employment, and by relying on that. It seems to me that the present set of circumstances – a short-term hire of premises regularly let for community purposes – is the sort of context in which that is not on the face of it an unreasonable way for a reasonably prudent employer to proceed. I consider on balance that the evidence points to that having been the manner in which the defendants proceeded in this case. I accept that something like the procedure described by Ms Upfield and Ms Newton is what happened at a point not long before the date of the accident: the Artwise RA was disclosed to and noted by Ms Upfield, and she was briefed about the premises, and given a tour, by Ms Newton, before being given the keys. If there was any technical breach of CXK’s statutory duty to conduct a RA in these circumstances – and I need reach no conclusion on that – I cannot find that it was a negligent one.

In any event, I cannot find a reason why, if CXK had undertaken its own RA, it would have assessed the step any differently from the Artwise RA, or that it would, or reasonably should, have taken any measure in relation to the step beyond those already taken. No such arguments were advanced on the claimant’s behalf. Even without seeking to resolve the precise degree of Ms Upfield’s knowledge and reflection, I accept the application in this case of the observations of Smith LJ in Allison (paragraphs 57-59) that what an employer ought to have known, from the point of view of its duty of care, is what it would have known if it had carried out a suitable and sufficient risk assessment. In the present case, however, I cannot see what more there was to know about the kitchen step, the risk it posed to visitors, or the measures available to give them reasonable protection from that risk. Ms Upfield herself had crossed the step. Changes in level in building had been assessed and marked; they were either visible or warned about. I accept that CXK should be taken, in the circumstances of this case, to have been aware of the risk assessment of the step and the mitigations in place in relation to it, and that they were entitled to accept that state of affairs as being reasonably able to ensure that their employees were reasonably enabled to protect themselves from such hazard as it presented. To the best of everyone’s knowledge, there was no history of particular concerns about the step in question. (The claimant reported overhearing a remark suggestive of the contrary immediately after the accident, but in the circumstances I am unable to attach significant weight to that; even on its own terms it sounded ambiguous.) Steps are always and obviously incidents of moving about an older building. Marking them with hazard tape gives employees, all else being equal, the best reasonable chance of avoiding problems with them.

Mr Grant very fairly emphasised that the removal of the actionability of the duty to assess risk does not exonerate employers from a duty which is particularly aimed at protecting the vulnerable. The relative vulnerability of employees must always be kept clearly in mind. Employers are generally in a better position to assess workplace risk than employees, particularly as regards unfamiliar premises. Again, however, context is inescapable. The assessment of the risk posed by a step is not one which is esoteric or specialised in the employment arena. It is an ordinary concomitant of everyday life in which no especial expertise is involved. To that extent, an employee is not in a position of special vulnerability in the understanding or mitigation of the risk, nor an employer in possession of special knowledge or resource. I take that into account, in concluding in this case that it was reasonable for an employer to accept that marking the outline of a clearly visible step with hazard tape was a reasonable response to have been made to its existence, and to the ultimately ineradicable risk of falling which steps always present.

On this issue, I saw some points of similarity with the analysis of Hale LJ (as she then was) in Koonjul v. Thameslink Healthcare Services (2000) PIQR 123. That was a case which turned on the application of the Manual Handling Operations Regulations 1992, but in which the analysis of the foreseeable risk of injury, and the duty of employers to take appropriate steps to reduce the risk of injury to employees to the lowest level reasonably practicable, was addressed with some care. As Hale LJ observed, in making such assessments “there has to be an element of realism”. There were innumerable everyday manual tasks to be undertaken by the employee around the children’s home in which she worked as a care assistant. It was “beyond the realms of practicability” to expect an employer to undertake a precise evaluation of all the everyday incidents of work – moving things around, picking things up – or to give precise warnings to individual employees as to how each was to be carried out. In the present case also, it seems to me that, the steps around the premises having been marked out with hazard warning tape, getting around this building safely was a matter of everyday incidentals about which employers could not be expected to give precise instructions or warnings.

Nor do I think the claimant is assisted in this case by reference to regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, also set out above. That provision is directed to the construction and surfacing of floors, and it is not easy to apply the language of the regulation to the existence of doorsteps. No complaint was made in this case as to construction or surfacing as such, and no argument was made to the effect that it was inappropriate for CXK to have hired The Avenue or, for example, that the step should have been ramped.

Mr Grant made a further appeal to finding an employer’s breach of duty in this case, on the basis that an employer can and should be expected to insure against accidents of the sort that befell the claimant, while claimants cannot reasonably be expected to insure against them. That is an argument which, if it had weight before 1^st October 2013, cannot in my view survive the effect of the 2013 Act. In relieving employers of no-fault liability to claimants in the field of health and safety, the Act no doubt intended to relieve them of the legal burden of insuring against no-fault liability. Parliament’s intention that claimants must prove that their accidents were someone else’s fault before they are entitled to compensation must presumably mean just that.

And that is where I have concluded that the analysis of liability reaches in this case. The claimant has not established that either of the defendants breached the duty of care it owed to her. As Lord Hoffman observed in Tomlinson (paragraph 4), “the law does not provide for compensation simply on the basis that an accidental injury was disproportionately severe in relation to one’s own fault, or even not one’s own fault at all”. The law provides for compensation only where the accident was someone else’s negligent fault. The claimant in this case candidly accepted that when she fell she was not looking where her feet were going; she was looking ‘straight ahead’, in what she thought was a normal enough kind of way. She did not see the step, even though it was in plain sight before her, and marked with hazard tape.

She was sure in her own mind that the accident was not her fault. She said she had been “moving slowly and carefully because I had just negotiated the big step down from the street and I was not in a rush and I am not in the habit of falling down marked steps”. But whether or not she was at fault herself was not the principal question before me, and not something, in the circumstances as I have concluded them to be, I need to come to any conclusions about. In bringing this action, the claimant had to discharge her burden of showing that the accident was someone else’s responsibility. I do not underestimate the difficulty facing her in doing so. On her account, it was more than a year after the accident before she started to think she might need to make a legal claim. I was shown an interesting sketch she made herself of the scene of the accident around that time, from which it is apparent – and entirely natural and unsurprising – that she was already by then to some degree reasoning, or intuiting, a reconstruction of events rather than being able to recall every precise detail from memory. I am also bound to conclude that the impressions she began to receive in due course from both earlier and later photographs, mostly of distinctly poor quality, played their part in further overlaying and reinforcing her conviction that her fall must have been someone else’s fault. One can sympathise strongly with her predicament without joining her in that conclusion.

Not every accident, even at work, means that someone must have been careless. The claimant was not the only witness to struggle to recall the precise details of events on an otherwise ordinary day four and a half years ago; to discriminate between memory, intuition and rationalisation as to what happened; and to remain uninfluenced by visual images of varying degrees of relevance to the ultimate question of liability for the accident. I acknowledge the care and seriousness with which all the witnesses tried to do so, and to assist the court. On as fair and objective an assessment of the facts as has been possible at this remove and on the evidence before me, I have concluded that the neither CXK nor Artwise conducted itself negligently in relation to Ms Cockerill, so as fairly to be held liable in law for her fall and her injury. They had taken reasonable steps to understand the risk of falling posed to the claimant by the lobby/kitchen doorstep and the consequences of doing so. The step was an otherwise unremarkable feature, marked out with hazard warning tape when visible, and warned about with verbal signage when invisible. I have not been convinced by the representations made to me that it was unreasonable of either the occupier or the employer not to have done more to help ensure that the claimant could cross that step, or any other, safely and without falling down.

This was a very sad accident, sustained in a context in which everyone involved – claimant, employer and occupier – was engaged in doing valuable community work to improve others’ lives, in otherwise entirely unremarkable circumstances. A public-spirited couple running a community interest partnership was competently managing a valued local facility, including providing a reasonable service in assessing and managing the everyday risks of the premises it was hiring out. A charity was competently delivering The Prince’s Trust programme to vulnerable young clients; it made a short-term hire of premises that enabled it to do so accessibly and economically, and acted reasonably in ascertaining the risks of doing so and adopting the local measures to manage them. An experienced and competent careers adviser was on her way to deliver a talk to help the young people, the sort of thing she had done many times before. She missed a doorstep, clearly marked and in plain daylight in front of her. The law is clear that not every accident gives an entitlement to compensation. Sometimes accidents happen even though sensible measures have been taken to minimise the relevant risk, and even though no-one can fairly or properly be considered to have been negligent. I have come to the conclusion for the reasons I have set out that, most unfortunately for Ms Cockerill, this was just such an accident.