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Wallis v Balfour Beatty Rail Maintenance, Court of Appeal

21 January 2003
The issues

Traffic routes – Work Place (Health Safety and Welfare) Regulations 1992 – slip –
fall – Provision and Use of Work Equipment Regulations 1992.

The facts

The Claimant was an experienced Track Manager, whose duties involved, amongst other things, track inspection and maintenance. He had a team of men who worked to his direction and he was responsible for health and safety in respect of that team. In March 1997, he was called to attend to work on a track. The nearest access gate was locked and secured by a padlock. The Claimant did not have a key. He phoned the Control Office, which told him to find a way onto the line via the quickest alternative route. He decided to climb over a high-spiked fence and did so successfully. He carried out the work and returned the same way. As he did so, he slipped and fell injuring his back. The Claimant said that he had taken a calculated risk to get the job done and relied on the fact that Balfour was subject to penalties if trains were delayed. He relied on negligence and PUWER 1992 and the Work Place Regulations 1992. The Judge found as a fact that there had not been previous problems with locks on access gates and it was not reasonably foreseeable to the Defendant that there would be a problem on this occasion. The Judge found further that the route taken over the fence was not a suitable alternative route, since it was clearly dangerous and due note was taken of the fact that the Claimant was experienced and responsible for health and safety issues. The Judge found that there was a breach of the Workplace Regulations 17(ii) but that that breach was not causative. He further rejected the Defendant’s argument that the Claimant had an alternative access route via London Underground, which involved crossing live rails. He accepted the Claimant’s argument that this was not a reasonable thing to expect. He found however that the Claimant should, on discovering that he had no reasonable access, have telephoned for further instructions before doing anything further.

The decision

1. The Judge’s finding that there was a breach of the Provision and Use of Work Equipment Regulations was wrong. The key that the Claimant had was a key which opened standard locks on gates. The lock on the gate in question was not such a lock. It could not be said that the key was unsuitable for the purpose for which it was supplied.

2. There was a breach of Regulation 17 (ii) of the Workplace Regulations, since the access gate was a traffic route and was blocked because it could not be unlocked.

3. Despite that, the Judge was right to find that it was not the locked gate that caused the accident, but the Claimant’s decision to climb over the fence. The Claimant was an experienced employee responsible for health and safety. The sole cause of his accident was his decision to take a hazardous route.

Appeal dismissed.

Comments

For further information please contact Catherine Brown at 12 Kings Bench Walk on brown@12kbw.co.uk.

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