Sticking point

Employees iStock 000005305116XSmall 146x219The Court of Appeal has overturned a first instance ruling in favour of a personal injury claimant in a case where a local authority failed to carry out a risk assessment. Robin Churchill explains the judgment.

In Fuller v West Sussex County Council [2015] EWCA Civ 189 the claimant, Ms Fuller, was an employee of the defendant local authority, West Sussex County Council. The claim related to injuries received during an accident at work on 12 December 2008. Ms Fuller unfortunately suffered an injury to her wrist after falling up stairs as she was delivering post to different floors in the building. She issued a claim against the council, claiming that her foot stuck on a ‘sticky patch’ on the stairs, causing her to trip. She also claimed that she was hindered in her fall by having to carry large amounts of heavy and bulky mail.

She claimed that she was entitled to damages merely because the council was in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999, and Regulation 4 of the Manual Handling Operations Regulations 1999. The court of first instance reluctantly agreed with her. The council appealed; the Court of Appeal allowed the appeal and dismissed the claim.

The facts

In 2008 the claimant/respondent Kim Fuller, then Brown, was employed part-time by the defendant/appellant West Sussex County Council as an administrative assistant. Her main job was that of receptionist at the defendant’s Haywards Heath premises at which the local office of its Social Services Department is located.

On 12 December 2008 whilst engaged in her relatively new task of delivering post within the building, the claimant had the misfortune to fall forward on a staircase. She put out her right hand to break her fall and was unlucky enough to injure her wrist. Although she was able to continue at work that day it transpired that she had sprained a ligament.

The claimant brought proceedings for personal injury against her employers. She said that at the time she was carrying a large amount of post of both considerable bulk and thus awkwardness, and of considerable weight – she estimated about 7 kilograms. She said that this meant that she had to use both hands in order to carry the post so that she could not use either of the handrails, of which there was one on each side of the staircase. She alleged that the bulk of the pile of post she was carrying, including parcels, meant that she could not see where she was walking. She said that, as she was going up the stairs, one foot did not lift off as she was anticipating because of the presence of a sticky patch, most likely to be a piece of chewing gum. Her momentum in going up the stairs carried her forward and she fell forward, was unable to grab a handrail because of the bulk of the post she was carrying, had to put out her right hand to break her fall, and was in consequence injured.

Liability was denied. It was agreed that if the claim succeeded the claimant would be entitled to an award of damages of £6,000. The claimant’s costs were likely to be in excess of £100,000.

The first instance hearing

At the first instance hearing, His Honour Judge Coltart heard evidence and arguments from both sides. The claimant explained her version of events, which was that her foot stuck on a sticky patch on the stairs and when she fell, she could not prevent her fall or grab the handrail as she had both hands full of post. The council disagreed, asserting that there was no sticky patch, that the claimant was not carrying large amounts of post and in fact had one hand free.

The judge did not accept the claimant’s account of the accident. The judge found that she was not carrying a large amount of post. She was carrying no large items. There was no mail or post spread about on the staircase as a result of her fall. There was only, if anything, something in one of her hands so that she had had at least one hand free. The judge found that there was no hazard in the form of a sticky patch that caused or contributed to the fall. The judge found that she had simply misjudged her footing. If an accident of this sort has to be analysed in terms of fault, as it normally does for the purposes of attributing liability, it was entirely the claimant’s fault, as the judge expressly found.

One might have thought that that was the end of the matter. The judge thought that it should have been, but he was nonetheless persuaded, evidently against his better judgment, that the law compelled him to find for the claimant, and furthermore that he was “prohibited” from making any finding of contributory negligence. This was, he was reluctantly persuaded, a result of the circumstance that the defendant local authority was in breach of its statutory obligation to make a risk assessment of the task to be carried out by the claimant in distributing post around the building, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable, being alleged breaches of Regulation 3 of the Management of Health and Safety at Work Regulations 1999, and Regulation 4 of the Manual Handling Operations Regulations 1999.

No risk assessment was produced by the defendant, nor did it attempt to show that it had taken appropriate steps to reduce to the lowest level reasonably practicable the risk of injury to the claimant arising out of her distribution of the post within the building. It was the claimant’s counsel’s submission that whilst in order to find liability pursuant to a breach of Regulation 3 of the 1999 Regulations a claimant must prove that the breach was causative of his/her injury, under Regulation 4 of the 1992 Regulations there is no such requirement.

It was submitted by the claimant’s counsel that if there had been a risk assessment, then it would have foreseen a risk of some injury when moving about the building carrying post. In those circumstances, he put it to Judge Coltart that the risk could have been reduced by the provision of a post bag which would have allowed the claimant to carry post but nevertheless remain hands free or at least one hand free. 

The judge’s instinctive reaction was that the argument presented to him, which he was invited to accept “flies in the face of common sense”, would encourage the sort of “compensation culture which has been the subject of considerable media attention”. He considered these circumstances to be “health and safety gone mad, because does one really need some sort of risk assessment and possible instruction as to how to carry files around an office building?” His Honour Judge Coltart was persuaded, evidently against his better judgment, that the law required him to find in favour of the claimant, despite his findings on the cause of the accident. It was a measure of his lack of enthusiasm for this outcome that having pronounced his decision, he immediately asked counsel for the defendant if he wanted permission to appeal, and granted it without waiting to hear whether that course was opposed.

The Appeal

The Right Honourable Lord Justice Moore-Bick, the Right Honourable Lord Tomlinson and Sir Robin Jacob considered the appeal. They agreed that it was common ground that the council owed duties to Ms Fuller under the Regulations, which included the obligation to carry out a risk assessment. No risk assessment for carrying post throughout the building was produced by the council, and it could not show that it had taken any appropriate steps to reduce the risk of injury in doing so to the lowest level reasonably practicable.

It was the claimant’s counsel’s submission that whilst in order to find liability pursuant to a breach of Regulation 3 of the 1999 Regulations a claimant must prove that the breach was causative of his injury, under Regulation 4 of the 1992 Regulations there is no such requirement and that it was for the defendant to prove that its breach of Regulation 4 did not cause the accident. The only way that that could be done was by showing that it had taken appropriate steps to reduce to the lowest level practicable the risk of injury to the claimant arising out of this post distribution operation. The Court found the unreality of the claimant’s counsel’s submissions was perhaps highlighted by his acceptance that on his approach the defendant would have been liable if the claimant had been unfortunate enough to suffer a heart attack whilst carrying an item or items of post up the staircase.

However the Lord Justices disagreed with his submissions. The cause of the injury was nothing to do with the risks which might occur in carrying post. The trial judge had found it as fact that she had misjudged her footing, as anyone can do when ascending the staircase. The only way to prevent this injury happening was to prevent the claimant from walking up the stairs. The claimant's counsel surprisingly suggested that this might be a wise precaution for the defendant.

In particular, the Lords Justices reviewed the authorities of O’Neill v DSG Retail Limited [2002] EWCA Civ 1139, and Davidson v Lothian and Borders Fire Board [2003] SLT 939 and Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642 and found that these authorities demonstrate that the judge at first instance had no need to accede to the claimant’s counsel’s counter-intuitive submission. Liability under Regulation 4 of the 1992 Regulations is only established on proof of a causal breach of duty. Here the defendant was arguably in breach of duty in failing to carry out a risk assessment in relation to the task which it asked the claimant to perform. But on the facts found by the judge, the accident which befell the claimant did not fall within the ambit of the risk which the defendant was arguably required to assess. The claimant simply misjudged her footing when climbing a staircase whilst she happened to be carrying one or more items of post. Her accident was wholly causally unconnected with the circumstance that she was at the time carrying one or more items of post. The circumstance that the claimant was carrying post may perhaps be described as the occasion for her injury, but it was not a cause of it.

The appeal was allowed and the claim dismissed.

Robin Churchill is a partner at Mayo Wynne Baxter, which acted for the local authority. He can be contacted on 01273 223235 or This email address is being protected from spambots. You need JavaScript enabled to view it..