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Hide v Steeplechase Company (Cheltenham) Ltd & Ors, Court of Appeal, 22 May 2013

6 September 2013
The issues

European Directive Provision – Use of Work Equipment Regulations 1998 – forseeability

The facts

Mr Hide was riding a horse at Cheltenham racecourse. Around the outside of the racecourse track ran a guardrail four foot high. On the inside a rail also ran intermittently. The rails were made of some plastic material and secured into the ground by upright posts, also of plastic, on top of metal spigots. The upright posts were padded for 20-25 yards after each hurdle. Mr Hide was jumping over the first of the hurdles towards his right hand side approximately 13 foot 6 inches from the outside guard rail. After clearing the hurdle his horse stumbled and fell causing Mr Hide to fall, hit the ground, and then move at speed into one of the guardrail upright posts, hitting it with his left hip. He suffered a fractured pelvis and head injury. Damages were agreed at £58,000 subject to liability. He relied on regulation 4 of the Provision and Use of Work Equipment Regulations 1998 which provided that work equipment was to be constructed or so adapted as to be suitable for the purpose for which it was provided. He argued that the hurdle was placed too close to the perimeter railing which was itself said to be too unyielding or insufficiently padded. The judge dismissed the claim finding that both hurdle and guardrail were suitable equipment. The claimant appealed to the Court of Appeal.

The decision

Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 provided that every employer should ensure that work equipment was so constructed or adapted as to be suitable for the purpose for which it was used or provided. Suitable was defined in the regulations as meaning “suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person”.

The regulations were implemented under the UK’s obligations under the framework directive on the introduction of measures to encourage improvement in the safety and health of works; and the Use of Work Equipment directive. Article two of the framework directive stated that the directive should apply to all sectors of activity both public and private including cultural and leisure activities. Article five of the framework direction contained a general provision that the directive should not restrict the option of member states to provide for the exclusion or limitation of employer’s responsibility where occurrences were 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”.

The directives applied only to workers and employers. The regulations, however applied to any person who had control, to any extent, of work equipment to the extent of that control. They therefore covered a wider area than the directives. This was important for Mr Hyde who, as a jockey, was not employed by any defendant. Secondly, both the Use of Work Equipment Regulations and the directive imposed a requirement that work equipment was to be suitable for the purpose for which it was used and that it could be used without impairment to health and safety. The directive nowhere defined the word ‘suitable’ although the regulations did. The concept of reasonable foresight introduced into the domestic regulations was absent from the directive.

Had the regulation therefore correctly implemented the directive?

Did the concept of reasonable forseeability present in the regulations equate with the language used in article 5 (4) of the framework directive?

The framework directive envisaged two types of event in respect of which a defendant could avoid liability. Namely one, occurrences due to unforeseeable circumstances beyond the employer’s control; or two, occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care. Both categories introduced the concept of forseeability to some extent. The first category introduced it in a limited way in that the accident had to be unforeseeable but also beyond the employer’s control. The second category required an assessment of whether all due care had been exercised. If an event was truly unforeseeable then its consequences could not be avoided by the exercise of all due care.

It was difficult to say that the introduction of reasonable forseeability in regulation 4 (4) meant that the directives had been accurately transposed into English law. In order to construe the regulation consistently with the directive it had to be for the defendant to prove that any relevant accident was due either to unforeseeable occurrences beyond the defendant’s control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care. The fact that an injury occurred in an unexpected way would not excuse the defendant unless he could show further that the circumstances were unforeseeable or exceptional in the sense of those words as given by the directive. Applying that principle to this case it was difficult to see what unforeseeable circumstances or exceptional events could be relied on by the defendant. An unusual fall could not be classified as either. The padding of the uprights of the guard rail could have been thicker; the hurdle could have been placed at a greater distance from the guardrail. The defendants could not show that if either or both precautions had been taken Mr Hide would inevitably have suffered the injury which he did.

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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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