Yorkshire Traction Company Ltd. v Searby [2003] EWCA Civ 1856

Case No B3/2003/1269[2003] EWCA Civ 1856
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE GRENFELL
Venue AT LEEDS COUNTY COURT, Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 th December 2003
Before
LORD JUSTICE PILLLORD JUSTICE CHADWICKLORD JUSTICE MAY
Between
YORKSHIRE TRACTION COMPANY LIMITEDAppellantsWALTER SEARBYRespondent
MR A BERRISFORD (instructed by Jacksons, Lees LS1 2DE) for AppellantsMR B LANGSTAFF QC and MR P COPNALL (instructed by Towells,Wakefield, WF1 1NL) for RespondentsHearing Hearing dates : 20 th November 2003
JUDGMENT
[1]This is an appeal against a judgment of His Honour Judge Grenfell sitting at Leeds County Court on 19 May 2003 when he gave judgment for Mr Walter Searby (the respondent) against his employers Yorkshire Traction Company Limited (the appellants) in an action for damages for personal injuries. Damages of £32,140.73 were awarded. The appeal is against the finding on liability.[2]The respondent was employed by the appellants as a bus driver. At about 10:50pm on 1 November 1998 he was assaulted by a passenger. In addition to physical injury, he developed a post-traumatic stress disorder. The assailant, who has never been identified, punched the respondent. He did so when he was leaving the bus and the respondent was sitting in the driver’s seat. The judge found that it was a “typical spur of the moment punch type attack”. It was submitted on the respondent’s behalf that there should have been a screen to separate the driver from passengers. The respondent alleged negligence and a breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 (The 1992 Regulations).[3]Regulation 5 of the 1992 Regulations provides:
“Suitability of work equipment” (1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. (2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. (3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable. (4) In this regulation ‘suitable’ means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. ”
[4]There was evidence of assaults by passengers on bus drivers having occurred and, indeed, this is a national problem, more in urban than in rural areas. Studies have been conducted into the problem of violence against bus crews. The respondent himself had twice previously been assaulted, in 1988 and 1990. During the 14 years up to 1 November 1998, there had been an average of 8 assaults a year of sufficient seriousness to the appellants’ drivers that they required time off work. (The scale of operations is mentioned later). In some areas of the country screens had been provided in public service vehicles; in other areas they had not.[5]The judge referred in his judgment to the evidence and found both breach of statutory duty and negligence proved. In considering statutory duty, the judge applied a test he had applied in an earlier case and it is set out at paragraph 37 of this judgment though it is not one which Mr Langstaff QC, for the respondent, is able fully to support. As to negligence, the judge did not express a test in the conventional way but found that negligence was also established. Mr Langstaff submits that all the material necessary for a finding of negligence, if justified, was present in the judgment. I agree that the case need not turn upon the manner in which the judge has formulated his findings though it may be that his concentration upon a test for breach of statutory duty did, with respect, colour a little too brightly his approach to the issue of negligence.[6]For the appellants, Mr Berrisford submits that the judge took too strict a view of the requirements of regulation 5. As to negligence, it is submitted that the judge failed to appreciate the effect of the evidence as a whole. Had he done so, he would not have made the “evidential leap” included at paragraph 33 of his judgment, to which I will refer.[7]Having regard to the submissions made, it is necessary to refer in some detail to the evidence. It is clear that the introduction of screens is not a straightforward matter from the viewpoint of safety. Disadvantages are perceived, not least by the drivers themselves, and notwithstanding the fact that assaults occur. It is important to keep in mind that it is the situation at the time of the accident which needs to be considered, a date now over five years ago.[8]Called on behalf of the respondent were a number of branch officers of the Transport and General Workers Union (the union), including Mr R Brown, who had for many years been Union Depot Representative at the Shafton Depot where the respondent was based and Mr G Stephenson who, since 1988, had been National Secretary for the Union’s Passenger Services Group and, following a re-organisation in about 1999, National Organiser for the Transport Sector. The appellants called Mr N Cooke, who had been their Engineering Director since 1986. In 1998, there were 588 full-time and 22 part-time drivers and about 350 buses in the appellants’ fleet. They operated over a large area in South Yorkshire.[9]Evidence was given by Mr D J Turner, consulting engineer. Having referred to the cost of fitting screens, which is not claimed to be a relevant factor in deciding whether to install them, he stated that “fixed screens which cannot be operated by the driver have led to feelings of claustrophobia by some drivers who feel restricted especially in accident circumstances. Screens which are operated by the drivers are preferred but both types can also give problems due to internal reflection of light when driving at night, decreasing visibility.” He referred to an increasing awareness by bus operating companies of assaults on bus drivers by the public and stated that the use of assault screens in the United Kingdom is increasing as is the number of assaults. He stated that “more bus companies, especially those who operate in the cities, have experimented with the fitting of the screens but the opinion seems to be that other security methods are preferred”. It is no criticism of Mr Turner to say that in my view the judge was justified in stating that the expert evidence did not add anything to the lay evidence taken as a whole, though it did have the effect of confirming that the concerns expressed, on each side, were real ones. Each of the points Mr Turner made was brought out in other evidence.[10]Mr D Hutchinson had been a bus driver for many years and was Union Secretary at Barnsley. The use of screens had been tried by the company in 1986. Mr Hutchinson said that screens were not popular. The first reason was that the reflection of light resulting from the use of the screen made driving the bus at night hazardous and the second was that the screen made drivers feel shut in and vulnerable in the case of an accident. These were seen to be real safety problems which might be more serious than the existing problem. That was the conclusion reached, after trials and consultation, by the Central Negotiating Committee (CNC) on which management and union were represented. In about 1998 screens were again considered. Some passengers had become more violent. At the time of trial, the union had not decided on a screen of preference and had asked for a trial. There had been a “mini-trial” at Doncaster but it was regarded as unsatisfactory by the drivers. A very careful judgment had to be exercised about swapping one hazard for another. These difficulties were the reason why the union did not attempt to re-address the matter until the middle of 2002.[11]Mr Hutchinson was referred to the minutes of the CNC for 2002 with the reference to the company looking at a “multi purpose screen or trellis design that could be utilised at the driver’s discretion”. Looking to the future, he said that he wanted screens to come in and wanted them to be used. If drivers continued to find them undesirable, that problem would have to be dealt with “as and when it arises”.[12]Mr A Bowler was also an experienced bus driver and Union Branch Secretary. He also stated that he was party to the trial of screens in 1986 and that they were not a success. Screens had been “put to the wall” until the last couple of years when an updated screen had come on the market and there had been a “bit of an uptake” in common assault. There had not been a suitable screen for a number of years due to reflection and other problems. One now coming onto the market might suffice. He had observed that all new buses operated by another company. Mainline, at Rotherham were now fitted with screens, he thought for the last eighteen months.[13]Mr Brown was on the CNC in 1986. Reflection of light had been a problem, both oncoming lights and lights within the bus. The conclusion had been reached that there was nothing further to be done at that time. That information came both from bus drivers who had tried screens and from union representatives. Prior to the end of 1998, the union had not indicated that screens ought to be looked at again. They had come back into the picture in 2002.[14]Mr K Farrington, another driver and union representative, agreed that ten years before drivers had not liked screens. They do now appreciate that they are a vital necessity.[15]Mr M Mayer, branch secretary at the First Mainline bus company in Sheffield, stated that screens had been fitted to some of the company’s vehicles for a number of years, probably 8 years or so. He added that as far as having a proper programme of fitting screens was concerned, that had been much more recent and a lot of progress had been made in the last two years. At an earlier stage, the union were trying to ensure a programme to fit screens. The union had re-launched a campaign in the first half of 2002. That had been stimulated by some very bad assaults towards the end of 2001 and the beginning of 2002.[16]Mr Mayer said that the policy of the union was to encourage companies to fit screens where they had the approval of the trade union and members, but certainly to consider doing risk assessments on the existence of violence and whether the screens are an appropriate measure. Consultation with the union on design was important. There were problems with screens which were not properly designed. Screens could create a safety hazard of their own. Particular concern was that a screen did not obstruct vision of the near-side mirror. There was not yet a specific model of assault screen that was recommended. Mr Mayer acknowledged that some drivers felt a claustrophobia with screens but the problems can be overcome. In 2003, drivers unready to have screens were “becoming quite a small minority”.[17]Mr B Anderson, a full-time officer of the union at York confirmed that the drivers had not liked screens but added that there was no willingness on behalf of the company to “progress the screens”.[18]Mr S A Clark, regional organiser for the union in York at the time of the trial, had been a bus driver for many years. He said that there was to some extent driver resistance to screens. Some believed that screens were unnecessary, some believed that they were a barrier between the driver and the customer and that there could be a communication problem.[19]Mr Stephenson spoke of the need to establish a design that would do the job. Ticketing arrangements were such that approaches to the problem would vary. The union were now negotiating with many of the big national bus companies. The environment of the local depot must be considered. The union and the company were working together to try to resolve the problem. On cross-examination, he stated:
“Q. If Mr Cooke, who is the engineer, is going to fit some more screens and he needs to satisfy his local Union about that before he puts them in, does he not? You agree? – A. Mmm. Q. It is not going to work unless he has agreement with the Union, the drivers though the Union? – A. Yes, absolutely, yes. Q. There has to be a considerable element of unanimity when he comes to do that ? – A. Well, at least a majority position. Q. He has got to be able to sit down with the CNC and come to a scheme that is agreed that is likely to work? – A. That is right, yes.”
[20]Mr Cooke’s evidence was that there had never been a significant problem with assaults on the company’s drivers. Asked whether 8 assaults a year constituted a problem, he said that “any assault is a problem”. He agreed that, statistically, 8 assaults year meant one assault for every 215,000 journeys, though most assaults occur late in the evening, as did the present one. He agreed that the introduction of screens would greatly reduce the number of assaults. A formula had not yet been reached that appeared to be satisfactory. He referred to the 1986 trials and the resistance of the drivers and the union to screens. “ The general consensus was they did not like the screen. We did not pursue it. The staff did not want it. We were not having that amount of violent attacks on drivers so we did not pursue it”. Referring to the driver’s objections to screens he stated: “What I am saying to you is that you might eliminate one problem and gain two, perhaps three more”.[21]The witness agreed that screens had been introduced in many cities. He agreed that there should have been a dialogue on the subject. He agreed that designs other than that tried in 1986 had become available between 1986 and 1998. Possibly, they should have been put to the staff for trial.[22]Mr Cooke referred to the purchase of buses from other companies. Sometimes they came with screens and the drivers wanted them off before the buses went on the road. Substantial numbers were involved and the general consensus of the drivers was that they wanted the screens off and the company took them off. The drivers who collected buses were not a majority of drivers employed but were chosen at random.[23]When referred again to the 8 assaults in the year, the witness stated:
“But we had to weigh it up. Putting a screen in created a greater problem for the drivers than what the assault was ……. It is a balance ”
. Screens were not “trialled” between 1986 and 1988 because he believed that they would create more problems than they solved, though he later stated that there was no specific reason for the absence of trials. A trial was now taking place. Mr Cooke agreed that in 1986 the Cleveland Company and their drivers had been able to find a design which was thought mutually suitable. He said that it was possible that more work on the question would have come up with a design acceptable to the drivers.[24]Reference to the CNC minutes showed concern being expressed from August 1997 about passenger behaviour. In December 1997 reference was made to the number of incidents increasing and a further meeting was requested. In March 1998 it was stated that a risk assessment is to be carried out. A risk assessment form dated 13 February 1997 had identified “violence to staff” as a “significant hazard”. The overall assessment of risk was stated to be “acceptable”. Mr Cooke said he would have put the risk at “low”. Under the heading “Control Measures for Risk” advice was given to drivers. It was also stated: “Give all drivers customer care training which will include how to deal with situations which could lead to acts of violence”.[25]Reference was made to a 1986 report of a Department of Transport Working Group on “Assaults on bus staff and measures to prevent such assaults”. In the report, it was stated that the problem was essentially urban and varied considerably between operators. The recommendations included one that operators should “consider providing protective screens for drivers. These are being introduced by an increasing number of operators. Some drivers dislike them because they act as a barrier between themselves and the great majority of law abiding passengers. However, undertakers using them are satisfied that they are effective.” It was acknowledged that bus staff are “entitled to be protected from reasonably foreseeable risks to their safety. ” It was stated that “it would not be realistic to suggest that operators generally need to implement all the recommendations in this booklet.”[26]A report prepared by Barry Poyner and Caroline Warne for the Health and Safety Executive in 1988 entitled “Preventing Violence to Staff” gave a detailed account of the Cleveland Experience, including the use of screens. Seven criteria which were required of a screen were set out: - could be seen through, so that drivers could see the dates of passes, etc; - shielded particularly the facial area; - did not produce reflections that would be dangerous at night; - did not reduce hearing loss too much; - was closed when the cab door was closed so that the screen was always in use; - did not produce ventilation problems in the driver’s cab; - was strong enough to resist any assault.[27]In 1995, the Department of Transport issued a “Practical Guide for Bus Operators and Staff” which referred to the slow rise of reported assaults since 1990. Protective screens were amongst the protective measures which may be taken, along with other physical measures, video surveillance, radios and panic alarms. Liaison with the community and police and improved training to help staff deal with awkward situations were also mentioned.[28]The judge’s findings were stated mainly in the context of breach of statutory duty with emphasis on the word “suitable” but much of it is relevant to the claim in negligence:
“26. I am satisfied that there was a reasonably foreseeable risk of injury by assault to a driver of a service which was at least partially urban and which covered the times when passengers were most likely to be intoxicated. From the evidence I have heard that would principally cover late evening services such as the service on which the claimant was injured in November 1998, but it could also extend to early afternoon services. Generally speaking, for rural services and those run at other times of the day, the risk would be sufficiently small that it could not be said that a bus was being operated in conditions for which it was suitable if it did not have a screen. However, for a late evening partially urban service such as the service in question, the risk of assault was sufficient to require some means of prevention, without which the bus was not being used under conditions for which, it was suitable. The only possible means of prevention, as opposed to the mere deterrence of, for example, mobile telephones and closed circuit television cameras, was a screen of some sort…… 30. As I have already indicated, Yorkshire Traction abandoned the concept of screens after their 1986 trial, largely it seems as a result of driver opposition to them. In my judgment, however, that did not relieve it of the employer’s duty to investigate screen design more widely, particularly since experience in other parts of the country, where urban services were being run, showed that suitable screens were in use. If drivers were unhappy with the trials of screens, then it was up to the employer to meet those concerns and not simply give up. Had Yorkshire Traction done so, in my view, it should have discovered at least the seven requirements for a screen identified by Cleveland Transit and could have met any other concerns, for example avoiding obstruction of the nearside mirror, by appropriate consultation with drivers. It seems to me that an employer should not derive too much comfort from the fact that a union is not pressing for a particular preventative measure – the union’s lack of enthusiasm does not abrogate the employer’s duty to take reasonable steps for the safety of its employees and to ensure compliance with the appropriate Regulations……. 33. I am satisfied that, had Yorkshire Traction carried out the kind of investigation of design that, for example, Cleveland Transit did in the 1980s, it could have come up with a design of screen that was not only acceptable to drivers, but also one which importantly did not create other unacceptable risks. In that way, Yorkshire Traction would have fulfilled its statutory duty of ensuring that its buses were being used only under conditions for which they were suitable. I am satisfied that, had this been so, the claimant’s bus would have been fitted with a screen on the night in question, because it was a service that started in an urban area in the late evening; and that as a result the assault either would not have occurred or at worst the claimant would not have been injured. In all probability, although this is not central to my findings, his earlier assaults would have been avoided.”
[29]For the respondent, Mr Langstaff QC seeks to uphold the findings of the judge. The appellants had not kept up with the times. Other companies used screens. There was evidence which showed that it was possible to design a screen which overcame the problems the use of screens create could. The views of employees could not be determinative of the need for remedial measures.[30]While there were differences of emphasis and detail, the several strands of evidence provide support for the following findings: a) While statistically extremely small, there was a risk of assault on bus drivers by members of the public. In a workforce of about 600, there had been 8 assaults in the year up to 1 November 1998. b) In many parts of the country, particularly in urban areas, buses had been fitted with screens. c) In some areas, such as Cleveland, screens which were acceptable to the workforce had been designed and installed. d) The appellants had conducted a trial with screens in 1986 and it had not been successful because the bus drivers did not like them. e) Screens brought problems of their own including light reflection, a sense of claustrophobia and a sense of isolation from passengers. These problems were not insubstantial. f) The drivers did not like screens as evidenced by requests to remove them when buses with screens were purchased from other companies. g) There was evidence that the problems, or perceived problems, could be overcome. h) It is only since a date well after that of the accident that significant steps had been taken by the union to pursue the provision of screens. The need for agreement with the workforce has been stressed.[31]While extracting those general statements, it is necessary to have regard to the evidence as a whole in reaching a conclusion. Although appellate courts accept the findings of specific facts by trial courts, they hold themselves free to substitute their own inference as to whether or not the facts constitute carelessness (Clark and Lindsell on Torts, 18th Edition para. 7/159). The question is what conduct is reasonably required in the particular circumstances. As Asquith LJ put it in Dabornv Bath Tramways Motor Co. Ltd [1946] 2 All ER 333 at 336:
“In determining whether a party is negligent, the standard of reasonable care is that which is reasonably to be demanded in the circumstances.”
[32]The circumstances are to be judged as at the date of the accident. Of course the absence of complaint from the workforce is not determinative of the question whether particular precautions are required. The employer owes a duty of care and its discharge may on occasions involve initiatives independent of the workforce and disagreements with the workforce. The attitude of the workforce is however, in my judgment, a substantial factor in circumstances such as the present. Experienced bus drivers, well organised in a union represented on a CNC, can be expected to have sensible and coherent views on what reasonably are the appropriate conditions in which to drive. There is, in this case, substantial evidence from a number of experienced union officials, most of whom are also bus drivers, as to the problems involved, the lack of support, to put it no higher, until a date since the accident, of the insertion of screens and the reasons for that. That attitude has gone to the extent of drivers taking action to have removed from buses purchased by the company the screens which had been present in them. There are coherent reasons why screens have not been supported by the workforce or initiated by the employers. Union officials are still urging that there be agreement with the workforce before screens are decided upon.[33]The risk of injury to a bus driver from an assault by a passenger was, for the appellants’ workforce in 1998, very low, though the number of incidents had increased. In the particular circumstances of the operations of the appellant company there was not, in my judgment, a fall below the standard of care reasonably required of the appellants by reason of there not being a screen fitted to the bus driven by the respondent at the time of his accident in November 1998. Mr Cooke agreed that further inquiries could have been made and there was evidence that Cleveland had successfully inserted screens in the 1980s. On the evidence, however, I am not able to hold that following the unsuccessful trial in 1986, the appellants were negligent in failing to have screens inserted by 1998. It may be that the Cleveland result could have been achieved in South Yorkshire but to hold that the appellants were negligent in not having achieved it is in my judgment to impose too high a standard of care upon them in the particular circumstances. On the evidence, the judge was not entitled to take the step he appears to have taken that, because screens had been acceptably inserted in Cleveland conditions, the appellants were negligent in failing to have inserted them in South Yorkshire conditions. The measure of risk was such, the perceived disadvantages were such and the attitude of the workforce was such that failure to insert screens in buses, including this bus, by November 1998 did not amount to negligence.[34]Even if, as I understand the judge to have found, the appellants were negligent in failing sufficiently to consider possible alternative designs of screen, I would not find that negligence to be causative of the accident. There could not, on the evidence, be a duty to give high priority to and impose the insertion of screens, for reasons already given. This was a matter which could properly be approached, as the union officials wished it to be approached, in consultation with them and the bus drivers. The probability is that further investigation would not have produced the result of screens in the appellants’ buses generally, or in this bus, by the date of the accident.[35]It should be underlined that my conclusion is based on the evidence as it relates to a particular time and place. The action required of an employer may well be different in different circumstances.[36]Mr Langstaff submits that the respondent can succeed in his claim based on breach of statutory duty if he fails on negligence. The concept of “suitability” does not require the balancing exercise often necessary in considering whether conduct is negligent. The focus is not on the reasonableness of the employer’s conduct but the effect of the condition of the bus on health and safety. The employer’s duty under Article 5.1 of the Framework Directive 89/391 is “to ensure the safety and health of workers in every aspect related to the work”. The appellants had failed to secure the result contemplated by the directive.[37]The judge applied the test he had previously applied in Askham v Yorkshire Traction in which he gave judgment on 8 August 2002 and had stated:
“…… once a claimant establishes that his employer could have reasonably foreseen conditions which represent a possible cause of injury, and that the conditions resulted in his injury, he establishes a breach of [the regulation]”
. Mr. Langstaff accepts that, by relating the duty entirely to what is reasonably foreseeable, the judge misstated the duty. The bus was not however suitable for use under conditions which included late evening operation on a journey partly through an urban area, and there was a breach of Regulation 5 (3).[38]Counsel for each party relies on the decision of this court in Marks and Spencer plc v Palmer [2001] EWCA Civ. 1528. The court considered the meaning of the word “suitable” in Regulation 12 of the Workplace (Health Safety and Welfare) Regulations 1992 which provided that floors in workplaces should be of a “construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used”. The claimant tripped over a weather strip which was 6mm-9mm proud of the floor near the exit from a workplace.[39]Waller LJ stated, at paragraph 15, that the word suitability “seems on its face to involve a qualitative assessment”. Having set out the factors to be taken into consideration, including the height and position of the strip, the absence of complaint and the people using the route, Waller LJ concluded, in paragraph 27:
“The court, as it seems to me, should stand back and ask itself by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable ? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did.”
[40]Schiemann LJ, having set out the circumstances and stated that “in law, context is everything,” concluded at paragraph 35:
“I do not consider that the existence of this small rise means that it should be regarded as rendering the floor unsuitable for the purpose for which it is used namely leaving or entering the shop. Another way of putting the point is to say that this degree of risk in this situation does not fall within the concept of constituting a risk to health and safety as used in this regulation.”
[41]Mr Langstaff accepts that, upon the Palmer approach, the test for liability involves a consideration of the degree of risk. The focus, however, was on the effect of the condition of the vehicle upon health and safety. It is no defence under the Regulation to say that the improvement suggested creates other risks.[42]I reject the submission of Mr Berrisford that the regulation does not cover protection from risks created by external forces. In my judgment, the word “conditions” in Regulation 5 (2) and (3) involves, in relation to a public service vehicle, a consideration, for example, of the weather conditions in which it is used and a consideration of what might be described as the human conditions in which it is used, including the number and likely behaviour of passengers and other road users.[43]However, I agree with Mr Berrisford’s submission that neither the directive nor the regulation require complete and absolute protection. An assessment must be made, as at the date of the accident, of the state of the bus having regard to the operations and conditions involved in its use, as contemplated by Schiemann LJ in Palmer with whose approach I respectfully agree. The assessment of the suitability of the vehicle for operations involves an assessment of the extent of the risk presented by the alleged defect.[44]By virtue of Regulation 5 (4), the characteristics of buses are assessed by reference to the effect which any lack of suitability may have on health or safety but it does not follow that liability is established simply by showing that it is reasonably foreseeable that the absence of a screen may leave the way open to injury to the driver. A consideration of the degree of risk involved in the absence of a screen is also necessary in assessing suitability.[45]While the duty is a high one, a consideration of suitability in my judgment involves the same exercise as has been conducted for negligence in relation to the assessment of risk and I refer to my earlier findings. In the circumstances as they existed on 1 November 1998, I am unable to conclude that the bus driven by the respondent was unsuitable for use on the journey it was doing and the conditions in which it was doing it in the sense contemplated by Regulation 5 (3).[46]I would allow this appeal.[47]Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1992 (SI 1992/2932) requires that every employer shall ensure that work equipment “is so constructed or adapted as to be suitable for the purpose for which it is used or provided”. Regulation 5(3) requires that every employer shall ensure that work equipment “is used only for operations for which, and under conditions for which, it is suitable”. In that context “suitable” means “suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person” – regulation 5(4). In the present case, following an earlier decision of his own, the judge construed the requirement in regulation 5(3) so as to give rise to a breach of the employer’s duty “once a claimant establishes that his employer could reasonably have foreseen conditions which represent a possible cause of injury, and that the conditions resulted in his injury” – see paragraph 24 of his judgment. As Lord Justice Pill has observed, it was accepted in this Court by counsel for the claimant (the respondent to this appeal) that that was to misstate the duty imposed by the regulation. What is required is a qualitative assessment of the risk of injury – see the judgments of this Court in Marks and Spencer plc v Palmer [2001] EWCA Civ 1528 in the context of the comparable provisions in regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004). I agree.[48]At the time when the 1992 Regulations were made, the Council of the European Communities had already adopted the Directives of 12 June 1989 (89/391/EEC – the principal or “framework” directive) and 30 November 1989 (89/655/EEC – the work equipment directive). The object of the framework directive, expressed in Article 1(1), was “to introduce measures to encourage improvements in the safety and health of workers at work”. Article 5(1) imposed on the employer “a duty to ensure the safety and health of workers in every aspect related to the work”. Article 6(1) required that, within the context of his responsibilities, the employer should take “the measures necessary for the safety and health protection of workers, including prevention of occupational risks . . .”. Article 6(2) explained that those measures should be implemented “on the basis of the following general principles of prevention:(a) avoiding risks;(b) evaluating the risks which cannot be avoided; . . . (f) replacing the dangerous by the non-dangerous or the less dangerous”. It is plain, therefore, that the framework directive recognises that it may well be necessary for an employer to strike a balance between one risk and another; in particular, where the avoidance of one risk would require measures to be taken which would give rise to another (and different) risk.[49]The need to strike a balance between one risk and another is recognised, also, in the work equipment directive of 30 November 1989. Article 3(1) requires the employer to take the measures necessary to ensure that the work equipment made available to workers “is suitable for the work to be carried out or properly adapted for that purpose . . .”. It goes on to provide that:
“In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking . . . for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.”
But that provision must be read with article 3(2):
“Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks”
. It is pertinent, also, to have in mind the provisions of article 8 of the work equipment directive which, in conjunction with article 11 of the framework directive, requires an employer to consult workers and workers’ representatives and to allow them to participate in discussions on the measures to be taken.[50]In the present case it was for the judge to determine, on the evidence before him, whether it was reasonably foreseeable that use of a bus on urban routes after dark might affect the safety of the driver; in the sense that the driver would be put at risk of assault by members of the public. The judge held that that was reasonably foreseeable; indeed, that appears to have been common ground – see paragraph 18 of his judgment. But it does not follow that a bus which was not fitted with a screen to separate the driver from the public was not “suitable” for use on the route from Pontefract to Barnsley, via Upton and South Elmshall, in the late evening of 1 November 1998. In order to decide that question the judge needed to weigh the risk of assault against the reasoned objections advanced by the drivers and their Union representatives on the Central Negotiating Committee; objections which were themselves advanced on the grounds that screens would pose a risk to the safety of the drivers.[51]Lord Justice Pill has set out the evidence which was before the judge. It is clear that serious objections to the screens thought to be available in the period up to and including the end of 1998 were raised by the drivers and by the Union. I find it of particular significance that, where buses were purchased with screens already fitted, the screens were removed at the request of the drivers. That, as it seems to me, indicates a consensus amongst the drivers that buses fitted with screens were not suitable for use in the conditions in which they would be required to drive them. It may well be said that the views of the drivers cannot be conclusive. But, to my mind, those views had to be given substantial weight. As Lord Justice Pill has pointed out, experienced bus drivers well organised in a Union represented on the Central Negotiating Committee can be expected to have sensible and coherent views on what reasonably are the appropriate conditions in which to drive.[52]In my view the judge’s misstatement of the duty imposed by regulation 5(3) of the 1992 Regulations led him to the wrong conclusion. On a proper understanding of the regulation he should not have concluded that the bus which the claimant was driving was not suitable for the route on which it was being used on the evening of 1 November 1998. He should have rejected the claim based on breach of statutory duty.[53]I recognise the force in the claimant’s contention that the employers were at fault in failing to consider, between 1986 and 1998, possible alternative designs of screen; in particular, in failing to identify the screen which had been successfully introduced in Cleveland. It is, I think, plain that the employers could have done more than they did in that respect. But I agree with Lord Justice Pill that to hold the employers negligent in failing to do all that they could have done would be to require of them a standard of care which goes beyond that which it would be reasonable to expect in the circumstances of the present case. It is pertinent, in this context also, to have regard to the consultation with the Union representatives which was on-going within the Central Negotiating Committee. And, like Lord Justice Pill, I am not persuaded that, if the employers had identified the Cleveland design, that would have led to the introduction of screens into the employers’ buses before November 1998.[54]I, too, would allow this appeal.[55]I agree with both judgments.

Cited in 4 later judgments