When One Door Closes

Diane Heeds v The Chief Constable of the Cleveland Police & Tascor Services Limited [2018] EHWC 810 QB

Executive summary

A Chief Constable, and those responsible for maintaining a police station under a service contract, were not liable for the injuries caused to a visiting police officer who trapped her thumb in the latch of a custody suite door.

Facts

Middlesbrough police station was built as a private finance project, with the first respondent’s officers assisted by staff of Tascor (the second respondent). On 1 February 2011, Ms Heeds (the appellant) was visiting the station to collect prisoners from its secure custody suite, access to which was through a locked door operated by those in the suite remotely activating a release latch. The latch mechanism required there to be a small gap adjacent to the side of the latch and the doorframe. On attempting to exit the suite for a second time, a station officer had told her to push the door first. In doing so, the appellant placed her left thumb in the gap and attempted to pull the door with her right hand at the same time as the latch was released. As a result she trapped her thumb in the gap.

The case against both respondents pleaded negligence, as well as breach of the Occupiers’ Liability Act 1957, the Workplace Regulations (WR) and the Work Equipment Regulations (WER), on the grounds that the door was defective and  that the pinch-point gap in the door created a foreseeable risk of injury. In response the respondents relied on expert evidence to argue that the gap was part of the door’s design feature and was not defective, that there was no obvious risk of injury and that a fixed guard would be impractical.

At first instance, the judge accepted the expert evidence and found that the respondents were not negligent but that, if they had been, the appellant would have been 50% contributorily negligent. In respect of statutory duty, the judge ruled that it was the WR rather than the WER which applied, given that Regulation 18 of the WR makes specific reference to doors. In view of the accepted expert evidence, no breach of those Regulations was upheld – as the door was not defective it was suitable under Reg 18(1). Further, being a door, there was no requirement to provide instructions, and no need for warnings in view of the remoteness of risk.

However, the Judge commented obiter that, had the WER applied, in view of the officer instructing the appellant to push the door, the first respondent would have been liable under Regulation 4(1). Such liability was due to the more stringent test in Hide v Steeplechase, whereby the burden fell on the respondent to show that it was unforeseeable or exceptional, which the first respondent could not do in this case, as his officer’s instruction meant that use of the door was within his control and it was not unforeseeable that as a result of the instruction, a user would insert their thumb in the gap. 

Ms Heeds appealed on the basis that the judge had erred in the finding that the WER didn’t apply and in not considering the suitability of the door with reference to risk of harm. By the time of the appeal hearing, for reasons not entirely clear, the first respondent had agreed settlement with the appellant in the sum of £175,000, having revised his case on liability several times, but sought a finding by way of cross-appeal that the second respondent was also liable.

Decision

Mr Justice Jeremy Baker approved the consensual appeal in respect of liability against the first respondent but did not allow the first respondent’s cross appeal against the second respondent.  Upholding previous authorities, that different regulations should be interpreted where possible to avoid over-lapping application, it was held that the trial judge was correct in finding that even specialist doors are governed by the WR. Consequently, in determining suitability under Regulation 18 of those Regulations, it was necessary to consider foreseeability – an assessment of the existence of a real or material risk of possible injury, requiring consideration of relevant factors such as the extent of seriousness of any potential injury, extent of alleged unsuitability, risk of an individual being careless, and the likelihood and severity of the hazard posed by any alleged defect.

So whilst it had been found that the latch had the potential to cause harm, Mr Justice Baker found that the trial judge had correctly found that the door was suitable, following the requisite qualitative assessment of the degree of risk for which the lack of any other incidents was highly relevant.

Comment

This is a welcome judgment for those in control of workplaces, not just because of the ultimate decision but also due to the guidance given in respect of the application of regulations. Whilst such statutory duties are arguably of less significance to claims involving accidents occurring post-October 2013 (with the introduction of the Enterprise and Regulatory Reform Act), it is still common for claimants to plead various statutory regulations to which defendants must respond. It is hoped that this decision will help limit over-zealous pleadings in future. The decision is particularly helpful bearing in mind the different tests which apply to the two sets of regulations (the WER imposing a stricter test as per Hide), which in turn impose a higher degree of liability than the common law. Whilst post-ERRA it is the common law which governs liability in such cases, the ability of a claimant to prove breach of particular regulations is still seen as highly persuasive evidence of negligence. Hence any decisions like this one which help close the door on a claimant’s ability to make out statutory breaches successfully must be helpful for defendant employers and their insurers.

If this update raises any questions, please speak to your normal Weightmans contact or Peter Forshaw, Partner in the Casualty department (peter.forshaw@weightmans.com).

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