Heeds v Cleveland Police & Anor

This appeal concerns the application of certain statutory regulations to an accident at work. In particular, the interaction between and the interpretation of the Workplace (Health, Safety and Welfare) Regulations 1992, “the Workplace Regulations”, and the Provision and Use of Work Equipment Regulations 1998, “the Equipment Regulations.”

The accident took place on 1 February 2011, in the custody suite at Middlesbrough Police Station. This is a secure area within the police station, and entry and exit, to and from it, is gained through a door; the locking mechanism for which is designed to be electronically operated by an individual who is either able to see those waiting at the door by means of closed circuit television cameras, or who can be instructed to release the locking mechanism by one of the custody officers inside the custody suite.

Once the operator releases the locking mechanism, the latch, which is housed within the door frame on the custody suite side of the door, is no longer secure, so that when the person waiting at the door uses the door handle to pull the door towards them, if they are seeking to exit the custody suite, (or to push the door away from them, if they are seeking to enter the custody suite), the dead bolt in the door causes the insecure latch to pivot forward and allow the door to be opened.

The requirement for the latch to pivot forward, means that there is a small gap immediately adjacent to the side of the latch and the doorframe, on the custody suite side of the door.

A buzzer sounds at the doorway to indicate to those waiting to pass through, that the locking mechanism has been released, and that the door can be opened. Alternatively, if the locking mechanism is not electronically operated, the door can be opened manually by an individual with a key.

Middlesbrough Police Station was built as a private finance project, and at the time of the accident, the 2^nd respondent was under a contractual obligation to maintain the building. The 1^st respondent was responsible for the operations carried out at the police station, and, as the judge determined at trial, both respondents were involved in the day-to-day running of the custody suite, as the 2^nd respondent’s employees assisted the 1^st respondent’s officers in the operation of the custody area.

On 1 February 2011, the appellant, who was a police officer with the West Yorkshire Police, had been sent with other officers, including PC Darton and PC Slee, to Middlesbrough Police Station to collect three prisoners, and take them back to Leeds.

The officers arrived at Middlesbrough Police Station at about 11.25, and entered the custody suite through the secure door which was unlocked for them. The appellant and PC Darton collected one of the prisoners, and exited the custody suite through the secure door, and placed him in the van.

The appellant then returned to the police station to collect one of the other prisoners, and on this occasion, as she was waiting outside the secure door for the operator to release the locking mechanism, an individual inside the suite unlocked the door manually with a key, and she gained entry into the custody suite.

Once inside the custody suite, the appellant collected another of the prisoners, handcuffed him, and led him towards the secure door, followed by PC Slee. Once again, she waited for the automatic locking mechanism to be operated, and, as determined by the judge at trial, she was then told by PS George, to “Push it first.” The appellant placed the tip of her left thumb into the gap between the side of the latch and the door frame, and used her right hand to pull the door towards her. By this time, the operator had electronically released the locking mechanism, and the action of pulling the door towards her, caused the latch to pivot forward, trapping the tip of the appellant’s thumb between the side of the latch and the door frame.

As a result of the accident, the appellant suffered personal injuries and loss, and commenced a claim, originally against the 1^st respondent alone, and, after the commencement of Part 20 proceedings, against the 2^nd respondent as well, for damages for negligence, breach of the duty of care owed to her under the Occupiers Liability Act 1957, and for breach of statutory duty under the Workplace Regulations, the Equipment Regulations and, although not pursued at trial, the Management of Health and Safety at Work Regulations 1999.

It was the appellant’s case that the operation of the secure door to the custody suite was defective, and required manual intervention in which there was a risk of injury from the pinch point between the side of the latch and the doorframe.

Both respondents denied liability for the accident. The 1^st respondent denied negligence, and denied that it was the occupier for the purposes of the 1957 Act. It also denied being subject to the statutory duties under the Workplace Regulations or the Equipment Regulations, asserting that these were owed by the 2^nd respondent. The 2^nd respondent denied negligence. It admitted that it was the occupier of the premises for the purposes of the 1957 Act, but denied being in breach. It too denied that it owed the statutory duties under the Workplace Regulations and the Equipment Regulations.

In regard to negligence, both of the respondents denied that the door locking mechanism was defective, and/or that it was possible to guard against the occurrence of the accident. In relation to the regulations, the 2^nd respondent denied that the locking mechanism was work equipment for the purposes of the Equipment Regulations, and both respondents denied that there was any breach of the Workplace Regulations. In the alternative, both respondents averred contributory fault by the appellant.

The trial took place before HHJ Belcher sitting at Leeds County Court between 12 – 14 October 2016, and judgment was handed down on 11 January 2017.

In relation to a number of significant matters relating to the circumstances surrounding the accident, the judge rejected the appellant’s version of events. In doing so, the judge had the considerable advantage of not only seeing and hearing the witnesses give evidence, but also, of viewing and hearing closed circuit television footage which had captured much of the events in the custody suite.

The appellant had claimed that the accident occurred on her first exit from the custody suite, whilst the judge found that she had already exited the custody suite without difficulty with PC Darton, and that the accident occurred when she sought to exit on the second occasion with PC Slee. Therefore, when the accident occurred, she had already used the door both to enter and exit the custody suite. Furthermore, that whilst she was waiting to exit from the custody suite on the first occasion, a member of staff had told her that “It’s a delay. It will buzz eventually”, after which the buzzer sounded, the door unlocked, and the appellant was enabled to pass through it.

On seeking to re-enter the custody suite, (or as the appellant claimed, enter the suite for the first time), the appellant said that a female had told her that the door was faulty; a matter which was rejected by the judge, who preferred the evidence of PC Siebrit, who denied suggesting that the door was faulty.

Immediately prior to the accident, the appellant claimed that, whilst she was waiting in the custody suite for the secure door to be unlocked, a member of staff had told her that the door wasn’t working properly, and that she would need to, “push the catch at the side.” In effect, the appellant asserted that it was this order which caused her to place her thumb into the gap between the side of the latch and the doorframe, resulting in it becoming trapped when the door was opened.

The judge rejected this account, and instead found that after PS George had indicated to the operator to release the locking mechanism, by the use of the words, “Corridor out please”, the only thing which PS George had told the appellant to do, was to “Push it first”, after which the buzzer sounded, and the appellant pulled the door open with her right hand; a matter about which she had no recollection.

The judge had the benefit of written expert evidence from the mechanical engineer, Dr Simon Jones who had been instructed on behalf of the respondents. He was the only expert in the case, as notwithstanding having obtained permission to rely upon expert evidence, the appellant had chosen not to instruct one. Dr Jones examined the door to the custody suite, and other similar doors at the Middlesbrough Police Station, and found that each of them operated in the same way, and that there was a small amount of play within the latch keep. He found that if a person seeking to exit the custody suite pulled on the door handle, prior to the locking mechanism having been released, such that the dead bolt came into contact with the inner surface of the latch keep, then this had the effect of preventing the locking mechanism being able to be released. However, once the person released the door handle, and the dead bolt ceased to be in contact with the inner surface of the latch keep, the locking mechanism was able to be released, and the door could be opened.

Dr Jones considered that it was likely that this was a design feature, to prevent a door opening unexpectedly when the locking mechanism was released. The judge accepted this evidence, and rejected the appellant’s assertion that this amounted to a defect in the design of the door.

The judge acknowledged that, probably due to impatience, some of those who used the door frequently would, if seeking to exit the custody suite, push the door handle before pulling it, (or vice versa if seeking to gain entry to the custody suite). However, this habit, or “quirk” as it was referred to, did not indicate that the design or operation of the door was at fault. It was an unnecessary action, as the door locking mechanism would be released without it, provided those using the door had not first pulled, (or pushed in the case of those seeking entry into the custody suite), the door handle.

Moreover, the judge accepted the evidence of Dr Jones that it would have been unlikely that the potential for harm, from the existence of the gap between the side of the latch keep and the doorframe, would have been obvious to anyone, and that even if such a risk had been identified, the likelihood and severity of the hazard which it posed would not have justified any control measures. Furthermore, Dr Jones considered that a fixed guard would not have been suitable, and that a flexible finger guard over the gap would not have been fit for purpose, as it would have inappropriately interfered with the operation of the locking mechanism.

The judge went on to consider a separate allegation of negligence arising from PS George’s instruction to, “Push it first”, and indicated that to succeed in negligence, the appellant would have to establish that not only was it reasonably foreseeable that the appellant would seek to push the latch keep, as opposed to the door, but also that it was reasonably foreseeable that some injury would be likely to result from doing so. The judge found that it could not be said that the only reasonable interpretation of the instruction was that it related to the door, and therefore determined that, on the balance of probabilities, it was reasonably foreseeable that the appellant might attempt to push the latch keep. However, in relation to the risk of injury, the judge, having accepted the evidence of Dr Jones that the risk would not have been particularly obvious to anyone, found that the appellant had not satisfied her that it was reasonably foreseeable that pushing the latch keep would be likely to result in the appellant being injured.

Although the judge had determined that the appellant had not succeeded in establishing negligence against either of the respondents, she went on to consider the question of contributory fault. The judge considered this matter against the background of having accepted the appellant’s evidence that, despite having previously encountered doors in the West Yorkshire area, which similarly required awaiting a buzzer before pulling or pushing them open, as appropriate, the appellant was not aware that the latch keep pivoted open, in the manner in which it did in the custody suite in this case. The judge referred to the evidence of Dr Jones, that the latch keep was not something that looked like something that was intended to be manipulated, such as a switch or knob etc., rather the appellant had chosen to place her left thumb in a narrow gap between the latch keep and the doorframe. The judge concluded that in these circumstances, and being faced with an instruction which did not obviously refer to this gap, the appellant ought to have sought clarification of the instruction prior to acting as she did, and that the degree of fault, for having failed to do so, was 50%.

As I have already indicated in the introduction, the main focus of this appeal has been the judge’s findings in relation to the interrelation, application and interpretation of the Workplace Regulations and the Equipment Regulations.

At trial, the respondents submitted that, where possible, the court should construe different sets of statutory regulations with a view to avoiding their overlapping application. In this regard, they relied upon dicta in the judgment of Longmore LJ to this effect in Mason v Satelcom Limited & East Potential Limited [2008] EWCA 494.

In her pleaded case, it was submitted on behalf of the appellant that both of these sets of regulations applied, and that the respondents were in breach of each of them, and therefore liable to her for the injuries which she suffered. However, at trial, those acting for the appellant did not address any argument designed to persuade the judge that she should consider the claim under both sets of regulations.

The respondents submitted that as the accident concerned the operation of a door, which is expressly dealt with by Regulation 18 of the Workplace Regulations, it is these regulations, as opposed to the Equipment Regulations which should be applied in this case. On the other hand, the appellant submitted at trial that the door in question is first and foremost an item of equipment, such that the appropriate set of regulations to apply are the Equipment Regulations.

In the course of argument, both sides sought to rely upon various passages from the speeches in Spencer-Franks v Kellogg Brown and Root Limited and others [2008] UKHL 46. On behalf of the appellant, reference was made to Lord Mance’s encapsulation of Lord Rodger’s criterion for identifying whether an item was “work equipment” for the purposes of the Equipment Regulations, namely whether it,

“86.…performs a useful, practical function within and in relation to the purposes of the business….”

It was argued that although ordinary doorways would be covered by the Workplace Regulations, as the doorway into and out of the custody suite was a high-security one, specifically designed for the purpose for which the custody suite existed, it was clearly an item of equipment to which the Equipment Regulations applied.

The respondents acknowledged that in the Spencer-Franks case, their Lordships held that a door closer was an item of equipment, as it was “for use at work”, such that the Equipment Regulations applied. However, it was submitted that in that case the accident occurred on an oil rig, to which the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 applied, which made no distinction between the fabric of the installation and the equipment within it, whereas in the present case it was the Workplace Regulations which applied, which does make such a distinction. They also pointed out that Lord Hoffman acknowledged the possibility that this may result in an implicit exclusion from the application of the Equipment Regulations, of an item which forms part of the premises upon which the work takes place, and that,

“12….In the case of ordinary work premises on land, this might be a good argument….”

Moreover, it was pointed out that although both Lord Rodgers (at paragraph 58) and Lord Carswell (at paragraph 74) warned against making too sharp a division between work equipment and the fabric of the premises, both acknowledged the possibility of such a demarcation, as did Lord Neuberger (at paragraph 94).

The respondents submitted that in the light of this acknowledgment, and bearing in mind the dicta of Longmore LJ in Mason v Satelcom, the judge should seek to interpret the Workplace Regulations and the Equipment Regulations, so that they did not overlap, and that as the former clearly cover doorways within premises, it is these regulations which should be applied in this case, to the exclusion of the latter regulations.

The judge accepted the respondents’ submissions and said at paragraph 77 of her judgment,

“77….I see the attraction of Mr O’Neill’s submissions for saying that the Door in this case is not simply part of the fabric but is equipment by reason of its particular purpose in the undertaking. However, I take the view that I am indeed bound by Mason v Satelcom to construe the Regulations, where possible, so that they do not overlap. Whilst Lords Rodger and Carswell in Spencer-Franks v Kellogg appeared to see no objection to the differing Regulations overlapping, the matter was left open for future decision. Whilst technically predating the House of Lords decision, the Court of Appeal decision in Mason v Satelcom expressly addresses the issue. I accept the submission that I am bound by the decision in Mason v Satelcom. Once I accept that position, it seems to me in (sic) inevitable that I must find that the Door is governed by the Workplace Regulations. Notwithstanding it is a specialist door serving a particular function within the undertaking, it is nevertheless a door. Doors are expressly covered by the Workplace Regulations and it follows, in my judgment, that I must construe the Equipment Regulations so that they do not overlap with the Workplace Regulations and thus, as excluding doors.”

The judge proceeded to consider the issue of the liability of the respondents under the Workplace Regulations, and in particular under regulations 18(1) and 5(1).

The judge held that, because of her earlier findings, as the door was not defective, it was suitably constructed for the purposes of regulation 18(1). Furthermore, bearing in mind the test to be applied when considering whether there was a breach of regulation 5(1), as described by Tomlinson LJ in Katie Cruz v The Chief Constable of Lancashire Police [2016] EWCA Civ 402, as the custody suite door did not present a foreseeable material risk of relevant injury, there was no breach of this regulation.

Although the judge had determined that the Equipment Regulations did not apply in this case, she nevertheless proceeded to consider whether, on the basis that they had applied, any breaches of them would have arisen.

The judge noted that Regulation 5(1) is in identical terms to Regulation 5(1) of the Workplace Regulations, so that for the same reasons there was no breach of this regulation.

In relation to Regulation 8(1), the judge noted the respondents’ arguments that being a door, it was unnecessary to have instructions as to its use. Moreover, that the evidence was that the appellant knew how to use the door, having used it and similar doors before, such that the provision of such information would not have prevented the appellant acting as she did on this occasion. Likewise, in relation to Regulation 24(1), the judge noted the respondents’ arguments, that the set of events leading to the accident, and in particular the appellant placing her thumb in the gap between the side of the latch keep and the doorframe, was sufficiently remote as not to require any warning. Moreover, that if warning notices were required for such remote eventualities, then there would be so many notices that they would be likely to be ignored.

The judge also noted that those appearing on behalf of the appellant, appeared to accept this latter point, and that their alternative contention that the latch keep should have been painted black and yellow, had not been canvassed with any of the witnesses, and had only emerged in the course of their closing address. In these circumstances, the judge stated that she would decline to make any findings on this point, and that the appellant’s claim based on breaches of Regulations 8(1) and 24(1) failed.

In relation to Regulation 4(1), the judge determined that the Court of Appeal’s decision in Hide v Steeplechase Company (Cheltenham) Ltd [2013] EWCA Civ 545, applied, and that once the appellant has shown that she had been injured as a result of contact with a piece of work equipment, the burden of proof rests upon the respondents to show either, that the occurrence was due to unforeseeable circumstances beyond their control, or that the occurrence was due to exceptional events, the consequences of which could not be avoided despite the exercise of due care.

In reaching this conclusion, the judge rejected the respondents’ submission that when ascertaining whether equipment was suitable, it was necessary, in line with what was said in Yorkshire Traction Company Limited v Walter Searby [2003] EWCA Civ 1856 regarding Regulation 5(1) of the 1992 Equipment Regulations, that an assessment of the degree of risk of harm was required. The judge noted that in Robb v Salamis (M & I) Limited [2006] UKHL 56, Lord Clyde had left open the question as to whether it was for the employee to prove foreseeability of harm, or whether it was for the employer to prove the absence of foreseeability, and that this had now been answered in the subsequent case of Hide.

The judge accepted that so far as the 2^nd respondent was concerned, the accident occurred due to unforeseeable circumstances beyond their control, and that the accident occurred due to exceptional events, the consequences of which could not have been avoided despite the exercise of due care. However, the judge found that PS George’s instruction to, “Push it first” meant that the appellant’s use of the door was in the 1^st respondent’s control, and that it was not unforeseeable that the appellant would, as a result of this instruction, seek to push the latch keep and insert her thumb into the gap. In these circumstances, the judge found that if the Equipment Regulations had applied, then the 1^st respondent would have been in breach of Regulation 4(1) and liable to the appellant.

The appellant’s main ground of appeal was that the judge had erred in considering herself bound by Mason v Satelcom Limited, and instead should have determined that the Equipment Regulations applied, and in view of her findings in relation to Regulation 4(1), held that the appellant had established liability against the 1^st respondent. The appellant also argued, inter alia, that the judge had erred in failing to assess the suitability of the door for the purposes of Regulation 18(1) by reference to the risk of injury that the movement of the keep presented when the door was opened.

Although the 1^st respondent conceded that the judge ought to have stated that Mason v Satelcom was highly persuasive, rather than binding, it was submitted that she had properly determined that the Workplace Regulations, rather than the Equipment Regulations applied in this case. Moreover, that although the judge should have considered the design of the door when evaluating whether it was suitably constructed for the purposes of Regulation 18(1) of the Workplace Regulations, as a result of the findings which she had made elsewhere in the judgment and the unopposed evidence of Dr Jones, she was correct in determining that there was no breach of this regulation.

In the event that the court accepted that the Equipment Regulations applied, it was argued that the judge had been wrong to find that the 1^st respondent was in breach of Regulation 4(1). It was submitted that the oral invitation to “Push it first” was accompanied by a hand gesture which could only have been interpreted as an invitation to the appellant to push the door, rather than insert her thumb into the latch keep, and the sequence of events, with the appellant placing one hand into the latch keep whilst pulling the door with the other hand amounted to an unforeseeable circumstance or exceptional event. Moreover, the judge should not have ignored the unopposed evidence of Dr Jones.

In the alternative, the 1^st respondent sought to cross-appeal, on the basis that the judge was wrong to differentiate between the position of the 1^st and 2^nd respondents, such that if the 1^st respondent was in breach of Regulation 4(1), so too was the 2^nd respondent.

The 2^nd respondent adopted the 1^st respondent’s grounds of appeal relating to the non-application of the Equipment Regulations, and the upholding of the judge’s determination that there was no breach of Regulation 18(1) of the Workplace Regulations. The 2^nd respondent also gave notice, that in the event of the appeal succeeding against the 1^st respondent, the 2^nd respondent would seek an order for its costs against the 1^st respondent, including the costs of the trial and the appeal.

During the hearing of the appeal in Leeds on 1 November 2017, it became apparent that although in the lower court the parties had submitted that the appropriate test for considering whether a breach of Regulation 18(1) of the Workplace Regulations had been established was that in Yorkshire Traction, the appellant now sought to submit that the stricter test in Hide applied. As this amounted to a withdrawal of a concession which the appellant had made in the previous hearing, I heard argument as to whether leave should be given for this purpose. I granted leave on the basis that although very late in the day, ultimately it was appropriate that the appeal should be determined on a correct application of the law, and that the appellant should at least be entitled to argue that the Hide test applied to both sets of regulations.

In the light of the ruling, the 1^st respondent made it clear that not only was he not going to argue that the Hide test did not apply to Regulation 18(1) of the Workplace Regulations, but because of the findings which the judge had made in respect to the 1^st respondent’s liability under Regulation 4(1) of the Equipment Regulations, (which the 1^st respondent was no longer going to challenge), and the close similarity between that regulation and Regulation 18(1) of the Workplace Regulations, the 1^st respondent conceded that he was liable to the appellant.

However, the 1^st respondent also made it clear that he would maintain his cross-appeal against the 2^nd respondent, which would now include the 2^nd respondent’s potential liability under Regulation 18(1) of the Workplace Regulations.

Given the significant alteration in the 1^st respondent’s position, the 2^nd respondent requested time to reflect upon its own position, and the hearing was adjourned.

By the time of the adjourned appeal hearing in London on 15 February 2018, negotiations had taken place between those representing the appellant and the 1^st respondent, and I was asked to approve a consent order whereby judgment for the appellant against the 1^st respondent was ordered in the sum of £175,000.00 together with costs of the action and the appeal, leaving the 1^st respondent to pursue his cross-appeal against the 2^nd respondent.

In the meantime, the 2^nd respondent reiterated its position that, not only was it the Workplace Regulations, rather than the Equipment Regulations, which applied to this accident, but also that the appropriate test for considering whether a breach of Regulation 18(1) of the Workplace Regulations had been established was that in Yorkshire Traction, rather than the stricter test in Hide. On this basis, the 2^nd Respondent continued to submit that the judge had been correct in her determination that the appellant had failed to establish a breach of Regulation 18(1) of the Workplace Regulations against either the 1^st or 2^nd respondents.

At the adjourned appeal hearing, the 1^st respondent confirmed that it was his position that it was the Workplace Regulations, rather than the Equipment Regulations, which applied to this accident. However, with commendable candour, Mr James Rowley QC, on behalf of the 1^st respondent, admitted that he had been wrong to have conceded at the initial appeal hearing that the appropriate test for considering whether a breach of Regulation 18(1) of the Workplace Regulations had been established, was that in Hide. Instead, he now sought to argue that in considering whether the respondents were in breach of Regulation 18(1) of the Workplace Regulations, the judge had not applied the correct test, and that had she done so, the judge should have held that both the 1^st and 2^nd respondents were liable to the appellant for her injuries and loss arising out of the accident.

In this regard it was submitted that in the light of authorities, including Koonjul v Thameslink Healthcare Services [2000] EWCA Civ 3020, Marks & Spencer v Palmer [2001] EWCA Civ 1528, Robb v Salamis(M & I) Limited [2006] UKHL 56, Craner v Dorset County Council [2008] EWCA 1323, and Cruz v Chief Constable of Lancashire Police & Another [2016] EWCA Civ 402, when a court is considering the degree of risk required to establish a breach of Regulation 18(1) of the Workplace Regulations, it is necessary for the court bear in mind that the obligation under the Regulations is to anticipate situations which may give rise to accidents, and that in doing so it is necessary to take account of carelessness by individuals who may be at risk of being injured.

It is apparent that situations do arise whereby different sets of statutory regulations apply to one and the same set of circumstances, such that where an accident has occurred, a defendant may be liable under each of those sets of regulations. However, as was made clear in Mason v Satelcom Limited, where it is possible to do so, the court should construe different sets of statutory regulations with a view to avoiding their overlapping application.

In that case the Court of Appeal considered that it was possible to do so, where an employee was injured whilst using a ladder placed in a room in which he was working by a third-party, to which three different sets of statutory regulations potentially applied, namely the Construction (Health, Safety and Welfare) Regulations 1996, the Workplace Regulations and the Equipment Regulations.

Lord Justice Longmore explained the position at paragraphs 19 – 21,

“19.

The first question is, therefore, whether the Workplace Regulations apply to falls from ladders at all and the second question is whether, if they do, it is those Regulations or the Construction Regulations which applied to the server room at the relevant time.

20.

In order to answer the first question it is necessary to consider the inter-relationship of the three sets of Regulations. It is clear that a ladder is work equipment and, thus, liability for falls from ladders will be properly considered in the context of the Equipment Regulations. Is it also contemplated that falls from ladders should be considered under the Construction Regulations and/or the Workplace Regulations as well? If so, the matter becomes unnecessarily complex and, if Satelcom is right in its contention, the outcome is somewhat odd. That is because, if a fall from a ladder occurs, the Construction Regulations have nothing to say about such an accident whereas the Workplace Regulations do. Why should that be so?

21.

To my mind the answer is that, where possible, the Regulations should not be construed so as to overlap. Dangers of work equipment should be dealt with under the Equipment Regulations; dangers in construction work should be dealt with under the Construction Regulations and dangers in the workplace should be dealt with under the Workplace Regulations.”

This being echoed by Lord Justice Ward at paragraph 54,

“54.

I have little to add to the other matters raised on this appeal. It seems to me to be perfectly obvious that the different sets of Regulations should not be construed so as to overlap. Each has its own area of application. The ladder was not a workplace as that has to be understood in the Workplace Regulations.”

In the present case, as both respondents concede, when the judge stated at paragraph 77 of her judgment that,

“I accept the submission that I am bound by the decision in Mason v Satelcom. Once I accept that position, it seems to me in (sic) inevitable that I must find that the Door is governed by the Workplace Regulations.”,

although she may have expressed the matter too strongly, her general approach to this issue was correct. Moreover, not only had the appellant not argued at trial for the dual application of the two sets of Regulations, but between paragraphs 71 – 77 of her judgment, the judge carried out a careful analysis of the relevant factors upon which her ultimate determination that the Workplace Regulations, rather than the Equipment Regulations, applied to this accident. In these circumstances, and as reflected in the submissions made on appeal by both respondents, I am satisfied that the judge was entitled to find that whilst the custody suite door was a,

“specialist door serving a particular function within the undertaking, it was nevertheless a door.”,

such that the Workplace Regulations, rather than the Equipment Regulations, applied.

The importance of the issue as to which of the Regulations applied to this accident lay in the fact that at trial, although there was a dispute as to whether the appropriate test for considering whether a breach of Regulation 4(1) of the Equipment Regulations had been established was the stricter test in Hide, (as the judge ultimately determined), it was common ground between the parties that the appropriate test for considering whether a breach of Regulation 18(1) of the Workplace Regulations had been established was that in Yorkshire Traction line of cases.

Although this common approach to the interpretation of Regulation 18(1) of the Workplace Regulations appeared to have fragmented during the initial appeal hearing, the 1^st respondent now concedes that the test in Hide does not apply to the application of Regulation 18(1) of the Workplace Regulations.

In my judgment, as presently understood, this concession is properly made by the 1^st respondent, in that as a matter of precedent, Hide was only concerned with the interpretation of Regulation 4(1) of the Equipment Regulations, and since then other cases, including Cruz, have considered the interpretation of other of these Regulations, including in the latter case Regulation 5(1) of the Workplace Regulations, and there has been no suggestion that the approach in Hide should apply.

More particularly, Regulation 4(4) of the Equipment Regulations, (unlike Regulation 18(1) of the Workplace Regulations), provides a definition of the term “suitable” in the context of work equipment, namely,

“4(4) In this regulation “suitable” –

(a)

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

(b)

……..”

It was because of this that Longmore LJ, in Hide, considered that as it was difficult to see any origin of this definition, other than Article 5(4) of the Council Directive 89/391/EEC, it was necessary to construe the definition of suitability in Regulation 4(4) of the Equipment Regulations, so as to be consistent with the limited concept of foreseeability in Article 5(4) of the directive, namely,

“5(4) This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”

Longmore LJ explained, at paragraph 25 of Hide, that the effect of this was that in cases of alleged breaches of Regulation 4(1) of the Equipment Regulations,

“25.

Once, therefore, the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which (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.”

This is not to suggest that the test of suitability under other of these Regulations, (including Regulation 18(1) of the Workplace Regulations), is to be equated with the concept of negligence. This much is clear from the series of cases which have been relied upon by both respondents, and is based on the premise that the Regulations were designed to implement the Directive 89/391/EEC which was introduced with a view to encouraging improvements in the safety and health of workers, as stated in terms in Article 1(1).

On the other hand, seeking to discern a precise formulation of the test, for whether a breach of those Regulations requiring the provision of a “suitable” workplace etc. has been established, is less easy.

In Marks & Spencer PLC v Palmer, a case involving an employee tripping on a weather strip inserted in the floor of a doorway at her place of work, Waller LJ at paragraphs 15, 16, 25 and 27 explained that in so far as Regulation 12 of the Workplace Regulations are concerned,

“15.

Two points to make on those submissions are that first, of course, a word like “maintained”, as Mr Brown submitted, can be tested by whether the end has been achieved, whereas a word like “Suitability” seems on the face to involve a qualitative assessment. The second point is that it is not necessarily an answer to say that Regulation 12(1) imposes an absolute obligation. It may be absolute in terms of requiring a suitable floor but it does not assist in construing the word “suitable” unless one restricts the submission to saying that these regulations are intended to impose a very high degree of liability on the employer.

16.

In my view, the provisions relied on by Mr Urquhart do not really assist in answering the question we have to answer in this case. The key to answering that question is this. Both Mr Urquhart and Mr Brown were inclined to accept that the words at the end of Regulation 12(2) (which I have already quoted and which I emphasise – “to expose any person to a risk to his health or safety”) were of assistance in identifying whether a floor was suitable. Suitability must be examined from a health and safety point of view. The question under that regulation is thus whether there is, in the construction of the floor, a risk to health and safety.

…..

25.

I am not sure that language such as “real risk” or “slight risk” necessarily encapsulates the exercise that it seems to me must be performed. It the risk, however slight, is of a very serious injury or death in falling from a high-storey building, then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that an employer should be entitled to have a seriously uneven floor if the risk is simply that some one may trip over – i.e., that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors……

….

27.

The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with the benefit of hindsight, was this floor suitable? Was it uneven to the extent which exposed persons to risk of their health and safety?.........”

Schiemann LJ at paragraph 35 added,

“I do not consider that the existence of this small rise means that it should be regarded as rendering the floor unsuitable for the purpose for which it is used; namely leaving or entering the shop. Another way of putting the point is to say that this degree of risk in this situation does not fall within the concept of constituting a risk to health and safety as used in this regulation.”

The judgments in Yorkshire Traction, reflected those in Marks & Spencer v Palmer.

Furthermore, in Cruz, which concerned an alleged breach of Regulation 5 of the Workplace Regulations arising from a cell door being left partially open, Tomlinson LJ at paragraphs 9,11 and 12 stated,

“9.

It was common ground on the appeal that if the partially open cell door presented no foreseeable risk of injury then it could not be said that the workplace was not maintained in an efficient state and thus there could be no breach of Regulation 5. I would perhaps myself frame the proposition a little more cautiously in terms of foreseeable risk of relevant injury, but it may be that this is pedantry. In Koonjul v Thameslink Healthcare Services [2000] PIQR 123, [2000] EWCA Civ 3020, which was concerned with the Manual Handling Regulations, Hale LJ spoke of “a real risk, a foreseeable possibility of injury” and a real risk is, I think, a material risk.

….

11.

Hale LJ also pointed out in Koonjul that in making the risk assessment called for by the Manual Handling Regulations “there has to be an element of realism”. The same is true in my judgment of the assessment which the court must make of the foreseeability of risk of injury in the context of the present Regulations. That is why the risk must be real or material, although it does not have to approach a probability.

12.

It was for the judge to decide what is essentially a jury question. However, his decision on the point could properly be informed by the evidence which he heard from those responsible for the health, safety and welfare of those who worked within the police station……”

It is clear from these and other cases, that the Workplace Regulations, and others designed to implement the Directive 89/391/EEC, require a significantly higher degree of liability to be imposed upon those to whom the Regulations apply, than that imposed at common law. The aim being to encourage improvements in the protection of workers from risks to their safety and health. However, as protection from risk necessarily requires an assessment of possible future events, the concept of foreseeability is still of relevance; albeit that this is now variously described as requiring an assessment of the existence of a real or material risk of possible injury. Essentially what is required is that set out in the judgment of Waller LJ in Marks and Spencer PLC v Palmer, namely a qualitative assessment which takes account of all the relevant circumstances, including the extent of the seriousness of the potential injury and the extent of the alleged unsuitability, thereby enabling the court to determine whether the degree of risk was such that, in the context of the present case, the custody suite door was suitable having regard to the risks to the appellant’s health and safety.

Undoubtedly, in making such an assessment, it is necessary to take into account the risks arising from an individual acting in a careless or inattentive manner, (see Robb v Salamis). Moreover, the fact that an accident is caused by a known source of danger, but in a way that could not have been foreseen, affords no defence, per Hughes v Lord Advocate [1963] AC at 847.

By the time that the judge came to consider the respondents’ potential liability under Regulation 18(1) of the Workplace Regulations, she had carried out an extremely thorough rehearsal of the evidence and made extensive findings upon them. Although many of these findings were made in the context of the judge’s consideration of the issue of negligence, there is no doubt, as she expressly recognised, that some of those findings were relevant to her consideration of the potential liability of the respondents under Regulation 18(1) of the Workplace Regulations.

The judge dealt with the issue of the respondents’ potential liability under Regulation 18(1) of the Workplace Regulations, shortly, at paragraph 78 of her judgment.

“78.

All references to any Regulations in this section of my judgment are references to the Workplace Regulations. Regulation 18(1) provides that doors and gates shall be suitably constructed (including being fitted with any necessary safety devices). For the reasons I have already given I do not consider the Door was defective in any way, and I find that it was therefore suitably constructed. For the reasons I have already given I am not satisfied that there are any necessary safety devices which should have been fitted to the Door.”

Although it may have been preferable had the judge expressly set out her approach to this issue and rehearsed the findings upon which she relied, it has to be borne in mind that not only were some of her previous findings relevant to this issue, but all parties were in agreement as to the proper approach to the determination of this issue, as I have set out above. In these circumstances I have no doubt that the judge considered this issue in accordance with that agreed approach, and that she took proper account of the relevant findings in reaching her determination that neither of the respondents were in breach of Regulation 18(1) of the Workplace Regulations.

Of course, the 1^st respondent is now in the invidious position of seeking to criticise the judge when, in earlier written submissions (dated 9 October 2017), he sought to uphold her determination on the basis that,

“13.

It is conceded that the Learned Judge could have said slightly more at [78] but, since it was common ground that the case of Yorkshire Traction governed the Regulation and the test was less strict, it was inevitable that the Learned Judge would apply her earlier findings which led inexorably to negative any lack of suitability in construction.”

In my judgment the 1^st respondent was correct in his earlier submissions upon this point. In the course of her judgment, between paragraph 39 – 43, the judge found that despite frequent daily usage there had been no reported faults concerning the operation of the cell door, or others of similar construction. Moreover, at paragraph 51, she found that there was no fault with either the cell door or its locking mechanism.

However, of particular significance in relation to her determination in respect of Regulation 18(1) of the Workplace Regulations, were her findings at paragraph 52, (based upon the evidence of the respondents’ own expert), that not only would the potential for harm not have been obvious to anyone on a risk assessment, but that,

“52…He is further of the opinion that even if such a risk had been formally identified and recorded on a risk assessment, he would not have expected any control measures to be implemented to mitigate that risk as he considers that the likelihood and severity of the hazard would ordinarily have been given low scores on an assessment (B367(iii) – B367(iv), paragraph 2.3). Given the number of times that the Door and doors like it have been used in this custody suite without any report of injury of this sort, including from the date of the incident in February 2011 to the date of the hearing, it seems to me that Dr Jones opinion in those respects is unassailable.”

It is clear from the authorities that both the likelihood and the severity of the hazard posed by any alleged defect in construction are matters of fundamental importance when considering whether an item, such as a cell door and its locking mechanism, has been suitably constructed for the purposes of Regulation 18(1) of the Workplace Regulations, as they will be crucial to any prior assessment as to whether any steps are required to be taken either to protect against or remove the potential hazard.

In oral argument, during the subsequent appeal hearing, the 1^st respondent submitted that the judge’s determination, at paragraph 93 of her judgment, that the pinch point at the latch had the potential to cause harm, was sufficient to found liability against both of the respondents under Regulation 18(1) of the Workplace Regulations, on the basis that what is required to found liability was a risk that was more than de minimis. However, not only was this finding made in a different context, namely that of the consideration of the respondents’ liability under Regulation 4(1) of the Equipment Regulations, but more importantly, it is apparent from the above mentioned authorities on this point, that this is not the test for liability under Regulation 18(1) of the Workplace Regulations, rather it is the qualitative assessment of all of the relevant circumstances, so as to enable the court to determine whether the degree of risk was such that the custody suite door was suitable having regard to the risks to the appellant’s health and safety.

In these circumstances I am satisfied that not only was the judge entitled to determine that neither of the respondents was liable to the appellant under Regulation 18(1) of the Workplace Regulations, but that on the evidence which she heard in the trial she was correct to do so.

Accordingly, although, by consent and to the extent already indicated, the appellant’s appeal against the 1^st respondent succeeds, the 1^st respondent’s cross-appeal against the 2^nd respondent fails.