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Local government, employer’s liability, personal injury

A kerb in the depot of the claimant’s workplace did not breach regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992…

Hooper v Denbighshire County Council,
Rhyl County Court, 11 March 16,
District Judge Thomas

Summary
A kerb in the depot of the claimant’s workplace did not breach regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (the Regulations).

Facts
The claimant was employed by the local authority as a road worker. In June 2012, while getting out of his van in the yard of the depot, he tripped and fell on a kerb. He alleged that the top of the kerb was out of repair and had worn away leaving a hole that was a risk to his health and safety and therefore a breach of regulation 12. The local authority maintained that the area was in good repair. The kerb had been in the same condition since 2004 with no previous accidents.

Judgment
The claim was dismissed. The judge was satisfied that the kerb did not amount to a breach of the Regulations. Regulation 12(1) requires the surface of a traffic route to be suitable for the purpose for which it is used. In this respect it must have "no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health and safety" (regulation 12(2)). The judge was assisted in his assessment of the alleged defect by the Court of Appeal’s analysis of ‘suitability’ in Palmer v Marks & Spencer [2001] EWCA Civ 1528. Suitability must be examined from a health and safety perspective. The mere fact of an accident due to an anomaly in the floor surface is not sufficient to establish that the floor was not suitable. The question as to whether the floor surface poses a risk to health and safety involves a consideration of all relevant factors including the likelihood of harm and the potential seriousness of resulting injury. Whilst the kerb showed evidence of wear and tear, there was nothing that amounted to a risk to health and safety so as to render the location unsuitable.

Comment
This accident predated the implementation of the Enterprise and Regulatory Reform Act 2013. Accordingly, if the claimant had succeeded in proving a breach of regulation 12(1), strict liability would have attached. The judgment is a useful reminder of the relevant factors that need to be considered when assessing the issue of suitability of a traffic route under regulation 12.

Weightmans LLP’s Local Government Team acted for Denbighshire County Council in this case.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Partner on 0151 242 6866 or by email peter.wake@weightmans.com or Denise Holt, Solicitor on 0151 242 6867 or by email denise.holt@weightmans.com.