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CEVA Logistics Ltd v Lynch & Anor, Court of Appeal, 25 February 2011

15 March 2011
The issues

Workplace (Health Safety and Welfare) Regulations 1992 – Employers Liability – safe system of work – traffic routes.

The facts

The Claimant was a qualified electrician. He was employed by his brother, the Second Defendant, who traded as SW Lynch Electrical Contractors. The First Defendant, CEVA Logistics Ltd, owned and operated a warehouse in Wellesbourne in Warwickshire. The Second Defendant had contracted with CEVA to maintain electrical items at the warehouse. The Claimant, in the course of his employment, regularly visited the warehouse to carry out electrical work. In one part of the warehouse there was a series of very narrow aaisles passing between tall storage racks. At one end there was a wall (or firebreak). It was only possible for the aisles to be accessed from the top end. Employees of CEVA drove vehicles known as reach trucks along the aisles to collect or deposit goods. In addition, two fire routes ran the entire length of the warehouse, intersecting all the aisles at right angles. The fire routes were even narrower than the aisles.

On the 19th September 2006 the Claimant visited the warehouse to inspect lights in the roof. He drove around the warehouse in a “cherry picker” which allowed him to reach up to the roof when he needed to get to the lights. At some point he parked his cherry picker at the end of the very narrow aisled section between two of the racks. He did some work in one of the aisles but needed to get to the next aisle. The best way of doing it would have been for him tor return to his cherry picker and drive forward a few yards so that his vehicle blocked the end of the aisle and also gave him access. Instead he made his way on foot along one of the fire routes between two of the aisles. After getting into the second aisle he was struck by a reach truck driven by an employee of CEVA. He was seriously injured. He brought a claim against both CEVA and his employer.

The matter was litigated and the Court ordered that the question of liability to be dealt with as a preliminary issue.

The Judge held that the First Defendant controlled the warehouse for the purposes of Regulation 4 of the 1992 Regulations and that this control extended to outside contractors such as the Second Defendant’s employees. This degree of control was sufficient to trigger Regulation 17, requiring every workplace to be organised in such a way that pedestrians and vehicles could circulate in a safe manner, amongst other requirements. The Judge found the First Defendant in breach of its statutory duty to the Claimant under Regulation 17 but rejected the view that the First Defendant owed a separate common law duty of care to the Claimant. He found that the Second Defendant as employer owed a duty of care to the Claimant and was in breach of that duty by failing to provide a safe system of work. He apportioned liability 60% in respect of CEVA and 40% in respect of the Second Defendant. Finding also the Claimant contributorily negligent to the extent of 25%.

The First Defendant Appealed to the Court of Appeal.

The decision

Three issues arose:-
i) Breach of statutory duty;
ii) Duty of care;
iii) Apportionment.

i) Breach of statutory duty
Only one organisation could make and enforce rules of conduct for everyone who entered the warehouse and that was the First Defendant. The Appellant relied on the decisions in King v RCO Support Services Ltd and McCook v Lobo. In King, a bus company was absolved of responsibility towards a cleaner employed by RCO Support Services with spreading grit over ice in the yard of the bus company’s bus station. He slipped on an ungritted part of the yard. This decision was entirely explicable by reference to the facts of the case – namely the slippery ice which was the very thing which the outside contractor who was the Claimant’s employer was obliged to deal with. It was for that employer and not the bus company to instruct the worker how to deal with the slippery ice.

In McCook v Lobo, a building in South London was being converted into a fish market with offices above. An employee of the contractor fell from a ladder and was injured. The Court of Appeal absolved the building owner from liability in respect of the Construction (Health Safety and Welfare) Regulations 1996 on the basis that the appropriate level of control was a question of fact and could not be answered affirmatively by demonstrating that an individual had control over the site in a general sense as an occupier or that as an occupier he was entitled to ask or require a contractor to remove obvious hazards. The required control was related to control over the business in hand, ie the work of construction.

The 1996 Regulations were similar in their effect to the 1992 Regulations in that responsibility of the workplace owner or an occupier was restricted to matters in respect of which it was or should have been able and competent to give instructions to visiting contractors and their employees. The combined effects of Regulations 4(2) and 17 of the 1992 Regulations was that the First Defendant owed a statutory duty to the Claimant to ensure that there was proper separation of vehicles and pedestrians in the warehouse. The First Defendant was in breach of that statutory duty in that it permitted the Claimant to enter the narrow aisles when reach trucks were or might have been operating there. The First Defendant ought to have instructed the Claimant to bloke off the end of the aisle before he entered it. The Appeal therefore on liability had to fail.

The Court had found that the First Defendant did not owe a common law duty of care.

It was plainly the responsibility of the First Defendant to coordinate the various activities taking place in the warehouse and to ensure that its own employees and the employees of external contractors did not come into collision. It was for the First Defendant to ensure safe and separate circulation of pedestrians and vehicles. The First Defendant owed a duty of care to the Claimant at common law concurrent with its statutory duty.

iii) Apportionment
The Court did not readily entertain Appeals on apportionment where the Judge had all relevant factors in mind. The Trial Judge was in the best position to assess the percentages of responsibility. In this case the Judge had all the relevant factors in mind and had set them out in a lengthy Judgment. There was no error of principle made by the Judge.

The Appeal would be dismissed.

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