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Bhatt v Fontain Motors Ltd, Court of Appeal, 27 July 2010

20 August 2010
The issues

Fall – Work at Height Regulations 2005

The facts

The Claimant was injured when he fell from a ladder at work. He worked at a garage, which consisted of a car showroom, a parts department, a workshop and a car washing area and car park. He was 54 at the time of the Trial and had worked for the garage for over 25 years. The garage stored fibre glass bumper kits or spoilers for Audi cars in a loft area above the car showroom. The means of access involved the use of a long aluminium ladder, with rubber non-slip feet, which was to be propped up against the lip of the hatchway into the loft area. The procedure was that somebody would secure the foot of the ladder whilst someone else went up it.

Mr Robinson was a Director of the company with an active interest in health and safety issues. He decided that the arrangements for access were less than ideal and that he would therefore restrict the number of people allowed to go up in the loft to himself, Mr Lawler and the Claimant. He gave a practical demonstration to Mr Lawler and the Claimant at some point before the accident as to how it should be done. Mr Robinson said that the Claimant had been up the ladder on a number of occasions prior to the accident. The Claimant denied that he had. The Judge found that the Claimant had not been telling the truth when he said he had never been up the ladder before or that he did not know that the ladder was supposed to be footed.

On the day of the accident, the Claimant went up the ladder when it was not footed. As he got near to the top of the ladder, the ladder slipped in some way and he fell. The Claimant did not have a clear memory of what had happened. The Judge found as a matter of fact that the Claimant knew perfectly well that if he had waited a couple of moments someone would have come to foot the ladder for him. The Judge found that the accident had occurred as a result of a breach at the Work at Height Regulations 2005 and in particular a breach of Regulation 5, in that Mr Robinson was not competent to engage in organisation and planning in relation to work at height; a breach of Regulation 6(2), in that it was reasonably practicable for the spoilers to be stored somewhere else; and a breach of Regulation 7(2), because, if the loft was a storage area a pull down ladder should have been installed.

The Defendant Appealed.

The decision

It was necessary to start with the Regulations rather than with the Claimant’s conduct. The Regulations were aimed at avoiding or minimising the risks inherent in working at height. Work at height should be avoided altogether if it was reasonably practicable to carry out the work otherwise – Regulation 6(2). If work at height could not be avoided, the risks had to be minimised by, amongst other things, the selection of work equipment that was appropriate and met the other requirements of Regulation 7(2).

In respect of Regulation 5, the Judge had found that, although well meaning, Mr Robinson had not had even the most cursory training in health and safety matters and was therefore not competent to engage in organisation and planning in relation to work at height. That amounted to a breach of Regulation 5. However, it was accepted by the Claimant that such a breach was of causative significance only insofar as it resulted in consequential breaches of Regulations 4, 6 and 7.

In respect of the practicability of storing the spoilers elsewhere than in the loft, the Judge had been entitled, on the evidence before him, to reach the finding that it had been so possible. Indeed, once the post-accident risk assessment had been undertaken, the Defendant had managed to store the spoilers elsewhere.

In respect of Regulation 6(2), the burden was on the Defendant to show that it was disproportionate to the risk to require the goods to be stored elsewhere than in the loft.

As to Regulation 7(2), it had not been in issue that a fixed ladder could have been installed. On the evidence before the Judge, he had been entitled to conclude that the moveable ladder was not appropriate or the most suitable work equipment.

The Judge had been correct to find that those breaches exposed the Claimant to a now unacceptable risk. The Claimant could not be said to be wholly to blame for the accident. The Defendant’s breaches placed the Claimant in a situation of risk to which he would not have been exposed if the Regulations had been complied with. It would have been better for the Judge to have dealt more fully with the issue of causation but the way in which he had analysed matters when considering contributory negligence showed that the Defendant’s breaches were, in his view, causative.

The Claimant’s failure to follow the prescribed procedure when doing work he should not have been required to do at all, and when using equipment that he should not have been required to use if the work was to be done, did not mean that the accident was caused by him alone, but went to contributory negligence. The Judge’s finding of only one-third contributory negligence was perhaps generous to the Claimant, but there had been no Appeal against that finding and it was not a finding with which the Court of Appeal would readily interfere.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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