A new ERRA of realism in workplace claims

With the passing of section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA), limitation will soon expire for most pre-Act cases, removing strict liability for breach of statutory duty.

In Cruz v Chief Constable of Lancashire Police and another [2016] EWCA Civ 402, the Court of Appeal has taken what must be one of the last opportunities to examine the strict liability provisions of regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992, rejecting an attempt to extend the concept of a workplace being 'maintained in an efficient state' and providing a reminder that there must be foreseeability of risk of injury for liability to be imposed.

Foreseeable risk

The claimant was employed as a civil detention officer at Burnley Police Station, and on the night of 17 July 2010 she was escorting an intoxicated detained person to a cell, assisted by a colleague.

It was the normal practice at the police station that the door of an unoccupied cell would be left in a fully open position for operational efficiency, to make it as simple as possible to escort a detained person into the cell, although there was no written or standing instruction to this effect. The defendant had also prepared a comprehensive risk assessment in relation to
the cells and their doors, which did not identify partially opened cells doors as presenting
any risk.

On arriving at the allocated cell, they found that the cell door had been left open, leaving a gap between the open door and the opposite wall of the corridor of only about 13 inches, which was insufficient for the claimant and her colleague to pass with the detained person. The claimant took one hand off the detailed person to open the door, but as she did the detained person fell to the ground, pulling the claimant down with her and causing the claimant injury.

The claimant alleged that as the door had not been left fully open, flush with the wall of the corridor, it was not 'maintained in an efficient state', which would impose strict liability on the defendant under regulation 5.The judge at first instance found that as a suitable and sufficient risk assessment had been performed, which did not identify a risk from the door being left open, consequently there was no foreseeable risk of injury from the partially open door.

It was common ground on the appeal that if the partially open cell door presented no foreseeable risk of injury, then it could not be said that the workplace was not maintained in an efficient state and thus there could be no breach of regulation 5.

The Court of Appeal cited Koonjul v Thameslink Healthcare Services [2000] EWCA Civ 3020, which held that before health and safety regulations are engaged (in that case the Manual Handling Operations Regulations 1992) there must be a 'real risk, a foreseeable possibility of injury', which Lord Justice Tomlinson, providing the lead judgment, said must mean a real or a material risk, although it did not have to approach a probability.

Lacking reality

The Court of Appeal rejected the argument that every time a cell door is left open, it creates a material risk of injury, stating that the notion lacked reality.

Having found there was no foreseeable risk of injury, the court held there could be no breach of regulation 5, on the basis that a door being left open did not mean that the corridor was not being maintained in an efficient working state.

Having accepted that an open door in perfectly good working order did not mean that the corridor was 'unsuitable', counsel for the claimant conceded that the claim under regulation 17, which requires traffic routes in a workplace to be suitable for the people using them, must fail. Ironically, this acceptance was also fatal to the claimant's argument under regulation 5 as the corridor was the workplace and if the door being left partially open did not make it 'unsuitable' for pedestrians under regulation 17, it could not render it not maintained in an efficient state under regulation 5.

Notwithstanding his sympathy for the claimant, Tomlinson LJ expressed that he was 'happy' to reach this conclusion because the suggestion that a cell door inadvertently being left open could impose strict liability for an accident such as this lacked all reality. Back in 2000, in the case of Stark v Post Office [2000] EWCA Civ 64, where the front brakes on a postman's bicycle broke, caused by a defect which would not have been discoverable on any routine inspection, the Court of Appeal imposed strict liability because the bicycle had not been 'maintained in an efficient state' in accordance with the Provision and Use of Work Equipment Regulations 1998.

Notwithstanding the fact that the decision lacked any sense of reality, it was a natural consequence of the strict liability provisions of the regulations, and it ushered in an era where employers would defend liability claims at
their peril.

The decision in Cruz represents the swansong for strict liability in employers' liability claims, while reminding us that there must be a foreseeable risk of injury, which must be a real or material risk, before liability can arise.

The decision is also to be welcomed as it hopefully points to a future under the ERRA where the courts will maintain a sense of realism in looking at the duties of employers and occupiers of workplaces. SJ

Steven Conway is a consultant solicitor at Keystone Law