Court Success: Watch Where You Step
- An Employers Liability case where the claimant was employed by the Defendant as a Highways Engineer
- The claimant had alleged there was an actionable defect on the Highway which led to his fall
- The court also found the claimant had received adequate training and that signs highlighting the difference in areas was not required given the locus
In the recent Zurich case of Whyatt v London Borough of Croydon, the High Court provided a useful summary of first principles to consider when assessing tripping claims advanced under the Highways Act 1980. It also provides ever welcome guidance on how the courts will approach claims where an employee relies upon an alleged breach of Health & Safety Regulations as evidence of common law negligence.
The Claimant, Mr Whyatt, was employed by the Defendant, the London Borough of Croydon, as a Highways Engineer. On 11 June 2013, he went to survey a section of public road in a semi-rural area of Croydon. The road adjoins a private farm track, leading to a nearby farm. The survey was undertaken in the course of the Claimant’s employment to see whether road repairs were necessary; seemingly in response to a complaint made by a local tenant.
At the junction between the public road and the farm track, there was a drop in the level of the roadway. The Claimant walked first down the section of public road. He then walked onto and down the farm track. Then he walked back up the track to the junction, turned, and took a step backwards. Not surprisingly, he tripped on the junction edge and fell to his injury.
The Claimant’s primary case was the drop at the junction was a hazardous defect resulting from disrepair. This, it was said, gave rise to a breach of the Defendant’s duty to maintain the road under section 41 of the Highways Act 1980. The Defendant accepted its maintenance obligations extended up to and included the junction. The questions for the court were therefore:
(a) whether there was an actionable defect; and
(b) whether it caused the Claimant’s accident.
In the alternative, the Claimant maintained that the Defendant, his employer, had failed to undertake a ‘suitable and sufficient assessment of the risks to his health and safety’ in carrying out the survey, and so had breached Regulation 3 of the Management of Health and Safety at Work Regulations 1999. This is turn amounted to prima facie evidence of negligence.
The court roundly rejected both aspects of the Claimant’s case. In considering whether the junction was hazardous, the master relied upon the test set down in the leading case of Mills v Barnsley Metropolitan Borough Council PIQR 291. To succeed in a claim under section 41, a claimant must prove that:
“a. That the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;
b. That dangerous condition was created by a failure to maintain or repair the highway; and
c. The injury or damage resulted from such a failure”
As well as denying that the junction was hazardous, the Defendant also relied upon a section 58 defence. Section 58 of the 1980 Act sets out a number of factors to which the court must have regard when considering whether a Highways Authority has discharged its duty of reasonable care. In doing so, Master Cook concluded that “…the drop was not a shear drop but was best described as a ramp.” It was suitable for the rural location and low levels of foot traffic. Without suitable evidence to the contrary, the site ought not to be held to the more onerous standards expected of a busy urban throughfare. The court was fortified in its view by the fact that the Claimant did not record the junction as a defect after the accident. Regardless, the Claimant’s survey of the site was clear evidence that the Defendant was discharging it maintenance obligations.
The court also held that the Defendant had complied with its duties as an employer. The Claimant was an experienced and well-trained senior engineer. He had worked in similar environments before. It would have been unrealistic to conclude that a specific risk assessment should have been undertaken for this inspection. Similarly, the court also rejected the suggestion that some form of signage might have prevented the fall. Having walked across the junction shortly before, the Claimant must have been aware of it.
Having found that no breach of duty had occurred, the court also concluded that the proximate cause of the accident was the Claimant’s decision to step backwards without looking and not the junction itself. The third limb of the Mills test (i.e. causation) was therefore not satisfied. As ever, regardless of whether a breach of duty is established, if a claimant cannot prove that the breach caused the harm complained of then their claim will fail.
The High Court’s decision in Whyatt does not change the law but nonetheless sets out a helpful summary of the hurdles a claimant must overcome to succeed with a tripping claim on a public road in England and Wales. (In Scotland, the equivalent duty to maintain arises under the Roads (Scotland) Act 1984. As such, Whyatt would not be binding upon the Scottish Courts, although it may have some persuasive value.) It also offers further guidance as to the approach a court may adopt when weighing the steps taken by an employer to risk assess work carried out by its employees outside work premises.
This claim was handled by Janine Ward in our Catastrophic PI Team. Janine is a Senior Claims Technician and is based in our Farnborough office.
Summary prepared by Felix Boon
12th December 2017