Do thy duty

Date: 24 April 2009
Authors: Keith Patten
Issue: Vol 159, Issue 7366
Categories: Features, Employment, Personal injury

Keith Patten reflects on an employer's duty of care; obvious risks, and the duty to warn

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As a matter of general principle the fact that an employer has a duty in common law negligence to devise a safe system of work is uncontentious. It is not uncommon, however, for defendants to respond to a claim by saying that an accident is all the claimant's fault because he chose to do something stupid or, as it is more conventionally put, was the author of his own misfortune. As with so much else in the law of negligence this is all a matter of degree but the Court of Appeal has recently re-affirmed the nature of the employer's duty: Ammah v Kuehne & Nagel Logistics Ltd [2009] EWCA Civ 11, [2009] All ER (D) 155 (Jan). A duty to warn, even in respect of obvious risks, has long been a part of the employer's obligations. What remains unclear is the extent of that duty.

Ammah v Kuehne & Nagel Logistics Ltd

In Ammah the claimant needed to get access to material on the upper shelves of a racking system of the defendant's dispatch department where he worked. The items were just out of his reach. He noticed a box nearby which he turned upside down, placed on the floor and stood on in order to access the required shelf. As he was doing so the box moved under him and he fell, sustaining injury.

The claimant lost on the facts, both at first instance and on appeal. This was on the basis that the employers had given a specific warning that employees should not use boxes to stand on and had provided alternative (and safe) means of access which the claimant had elected not to use on this occasion. Despite finding against the claimant, however, the Court of Appeal took the opportunity to re-affirm the longstanding principle of law that it is the employer, not the employee, who is responsible for devising a safe system of work and that this extends to the giving of specific warnings about risk. Rejecting the argument of the defendant's counsel that no warning was necessary in this case because the claimant was well able to appreciate the risk himself Lord Justice Richards said (at para [18]) that the fact that “an employer may be under a duty to warn against even an obvious risk is supported by authority” and cited the House of Lords decision in General Cleaning Contractors Ltd v Christmas [1953] AC 180, [1952] 2 All ER 1110.

General Cleaning Contractors v Christmas

In this case the claimant was a window cleaner of some 20 years' experience employed by the defendant. He was sent to clean the windows of a building where his employers had the cleaning contract. The system involved the claimant cleaning such parts of the outside of the windows as he could reach from inside and then going out onto the sill in order to clean the rest. The window in question consisted of an upper and lower sash. The upper sash was fully closed while the lower sash was open a few inches to allow the claimant to put his fingers around the bottom of the upper sash, this providing his only means of support. While in this position the bottom sash, for some reason, closed, causing his fingers to be trapped between the frames of the two sashes. This caused Mr Christmas to lose his balance and fall.

The claimant was successful at both first instance and in the Court of Appeal. The employer's appeal to the House of Lords was dismissed. It was known that a sash window, part open like the bottom sash in this case, could sometimes have the tendency to slip. If that happened and the bottom sash fully closed then it was inevitable that the claimant's fingers would become trapped and his only means of supporting himself thereby severely compromised. This was not, therefore, a safe system of work. The problem could have been solved had Mr Christmas wedged the lower sash in its part open position to prevent it closing without warning. The defendants sought to advance the argument that as a window cleaner of some 20 years' experience Mr Christmas was perfectly well able to recognise and deal with this obvious risk himself. The House of Lords was unimpressed by this attempt to shift to the employee the obligation to devise a safe system of work. Lord Oaksey said (at page 189): “In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the [defendants], that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.”

Discussion

How then does that assist in knowing what the extent of the employer's duty is in any given case? Richards LJ accepted in Ammah (at para [19]) that “…some dangers are so obvious that no instruction is required”, but rejected the suggestion that that was the position in that case.

It is important to bear in mind that the issue here is one of breach, not one of duty. As such the question to be answered is largely one of fact not law and previous cases may be illustrative of approach but will generally provide little clear precedent value.

By way of illustration, in the first instance decision on His Honour Judge Walton, sitting at Newcastle upon Tyne County Court on 5 September 2005 in the case of Thompson v Gateshead Metropolitan Borough Council (unreported) it was held that the defendant who had failed to instruct a claimant cleaner to “dry mop” a floor she had just washed was in breach of duty when she slipped and fell. That a floor known to have just been washed is likely to be wet and should, therefore, be dried, would seem an obvious risk but the judge was of the view that the obligation to institute a system to deal with that risk rested with the council, not with Mrs Thompson. That the judge in question is one of the authors of Charlesworth & Percy on Negligence and might well be expected to have a handle on the issues raises this particular decision above the level of the ordinary first instance decision in the county court.

One dividing line may well be that the employer is under a duty to give warnings only in respect of something which falls within the broad outline of the claimant's job. For example, it is submitted that there is no obligation on an employer of an office worker to warn its employee not to stick fingers in the electric sockets because that forms no part of the system of work which the employer has to devise. By contrast, the same office worker who may find themselves called upon to unjam the photocopier probably does require some instruction in how that should be done. It may be open to the employer to leave that instruction to the written warnings displayed on the machine itself, but a failure to ensure those warnings are in place is likely to constitute a breach of duty, notwithstanding that the risk of being burned from touching a part of the machine which is plainly hot may well be an obvious risk.

It should, of course, be borne in mind that the employer is not the insurer of his workforce and that his duties are governed by the familiar concept of reasonableness. It may, therefore, be acceptable for an employer to delegate to his workers (particularly if they are experienced workers) the task of devising their own response to a one-off situation, although in the case of inexperienced workers the duty may well extend to either not putting them in that position in the first place, or of ensuring that if they find themselves in such a position they have readily available back-up and know-how to access it. Leaving workers (even experienced ones) to devise their own system of work in relation to a repeated and regular task will expose the employer to liability where the system devised turns out to be unsafe, even if it is unsafe in a manner which might appear to be obvious.

Unequivocal

There is clear and unambiguous House of Lords authority that the task of devising and implementing a safe system of work lies with the employer and not with the employee. The Court of Appeal has confirmed that this obligation extends to the provision of a warning against even an obvious risk of danger. The rationale for this is set out in the statement of Lord Oaksey quoted above. This is that the worker's position cannot be equated with that of the employer. The worker finds himself faced with the need to respond to situations as and when they arise and does not have the luxury of planning, reflection or, as Lord Oaksey puts it “…the calm atmosphere of a boardroom”. The rule further recognises that workers may not always act in their own best interests and may become blasé to certain risks as a consequence of familiarity.

While this article looks at the position in common law negligence it is, of course, the case that much of the workplace environment is now covered by statutory regulation which may impose even stricter obligations on employers. The consideration of the employer's duty to devise a safe system of work cannot anymore be seen in isolation. Even in respect of these common law duties the statutory obligation to risk assess set out in reg 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) will oblige employers to turn their minds proactively to the risks to which their employees are exposed and will govern the nature of the risks against which they must warn. The role of risk assessment in the regulation of health and safety in the workplace is a subject in its own right, but it should be noted that the decision of the Court of Appeal in Allison v London Underground Limited [2008] EWCA Civ 71, [2008] All ER (D) 185 (Feb) was a clarion call to the courts, and through them to employers, to recognise the significant increase in employer responsibility that the obligation to risk assess has created. An employer who identifies, or who should have identified, a risk in its workplace will fail to address that risk at its peril.

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