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Chakmakchi v Devon County Council, Exeter County Court, 20 November 2007

20 December 2007
The issues

Occupiers Liability Act; Workplace Regulations 1992; whether workplace regulations apply to non employee

The facts

The Claimant, a pupil, suffered injury when he slipped down steps at School. The Claimant alleged that the Defendant Council, being the Local Education Authority was in breach of statutory duty and/or negligent in failing to install a handrail.

The Claimant brought his claim under section 2(2) of the Occupiers Liability Act 1957, the Education (School Premises) Regulations 1999 and in Negligence. The Claimant further alleged breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 and the Management of Health and Safety Regulations 1999. In particular the Claimant relied on Regulation 12(5) of the Workplace Regulations which required that there must be suitable and sufficient handrails on all staircases.

The Defendant submitted that the Education Regulations provided no civil right of action and in any event added nothing to the duty under the Occupiers Liability Act. In this regard the Defendant argued that the steps were reasonably safe in that they were well maintained and in a safe and suitable condition evidenced by the complete absence of previous accidents. In respect of the Workplace Regulations the Defendant argued that the regulations did not apply to the Claimant, a pupil, for whom the school building was not a workplace.

At first instance the Trial Judge principally considered two issues;

1. Whether the workplace regulations applied to the Claimant;

2. Whether the Defendant was in breach of its duty of care owed to the Claimant.

The Court was referred to the Scottish case of Donaldson v Hayes as persuasive but not binding on the Court. The Defendant further relied on the decision in Ricketts v Torbay Council, a decision of the Court of Appeal, not however directly citeable since it was a refusal to grant leave to appeal but relied upon by the Court in Donaldson.

With respect to the Second issue the Court held that the Defendant was in breach of its duty of care and was negligent. Principally the Court found that there was a breach of the workplace regulations whether or not it was a breach towards the Claimant and he found that that breach was persuasive in support of the argument that the Claimant has a case at common law.

The Defendant appealed primarily on the basis that;

1. The Court was erred as a matter of law in finding that the Workplace Regulations gave rise to a duty that was owed to the Claimant for whom the Defendant’s premises were not a workplace;

2. That the Judge, by misdirecting itself as to the applicability of the Workplace Regulations, erred by finding the Council liable at common law in negligence.

The decision

The Appeal was heard by His Honour Judge Tyzak who considered the wording of the Regulations and also was referred to the Health & Safety at Work Act 1974 which is the governing statute. His Honour Judge Tyzak also considered the Scottish case of Donaldson v Hays Distributions Services Ltd [2005] which was extensively relied upon by the Defendant. In that case the Court of sessions in summary held;

(i) The Regulation should be construed in the legal and historical context in which it was made which was to protect workers;
(ii) It was open to Parliament to extend the protection of the Regulations to non-workers but it had not chosen to do so clearly;
(iii) That it was improbable that the legislative intention was to supersede much of the law of Occupiers Liability tacitly by the mere use of language.

The Judge concluded that the Defendant/Appellant was correct in that the Regulations were never intended to apply to a non-worker. He found that there was little distinction to be drawn in the argument that some regulations deal with facilities to employees and some to premises for the benefit of anyone. The real question was what is the whole context of the Act and the Regulations? The Court found that the answer was quite clear – it is dealing with the whole question of health and safety in the workplace, protecting people who work in such places and those who are there in connection with the activities of work and workers there.

In respect of the second ground of appeal the Court found that because the D/District Judge’s decision on the common law duty was tainted by his wrong decision on the application of the regulations this finding also could not stand.

Appeal allowed.

The parties agreed that rather than remit the case for re-hearing before a different Court His Honour Judge Tyzak should make his own decision on the evidence before him. His Honour Judge Tyzak held on the question of liability that the Defendant was negligent and in breach of statutory duty by not providing handrails. There was a serious and easily foreseeable risk of a pupil suffering injury at this staircase.

Comments

This is a useful case for Defendants to cite when faced with an allegation by a non-worker of breach of the Workplace Regulations. Whilst the earlier case of Ricketts v Torbay Council heard by Recorder Levine came to the same decision this was not a citeable authority.

His Honour Judge Tyzak upon handing down judgment emphasised that the first place for a Claimant to look was to the Occupiers Liability Act and to negligence. If the Claimant could bolster their case by citing breaches of the Regulations then so much the better for them but it should not be pleaded as the main basis of the claim, but simply a subsidiary element.

Whilst the Defendant was ultimately unsuccessful in defending the Claim the Defendant/Appellant was successful on appeal and therefore the Court’s award as to costs was that the Defendant pay the Claimant’s costs below but that the Claimant pay the Defendant’s costs of the appeal.

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