Hide v The Steeplechase Company (Cheltenham) Ltd & Ors [2013] EWCA Civ 545

Case No B3/2012/1939[2013] EWCA Civ 545
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
HIS HONOUR JUDGE HARRIS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 22 nd May 2013
Before
THE RIGHT HONOURABLE LORD JUSTICE LONGMORETHE RIGHT HONOURABLE LORD JUSTICE MCFARLANETHE RIGHT HONOURABLE LORD JUSTICE DAVIS
Between
HIDEAppellantTHE STEEPLECHASE COMPANY (Cheltenham) LIMITED & ORSRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Christopher Sharp QC & Miss Anna Symington (instructed by Withy King Solicitors) for AppellantMr Peter Cowan (instructed by Messrs DWF) for Respondents
Judgment

Introduction

[1]According to HHJ Charles Harris QC, Cheltenham Racecourse is widely regarded as the best steeplechase course in England. I see no reason to doubt this accolade in any way. Unfortunately Mr Hide, an experienced professional jockey who won his first race at the age of 17, sustained a serious injury at the first hurdle of the first race of the day on 11th November 2006.[2]He was riding a horse called “Hatch a Plan”. The race was 2 miles in length and included several hurdles. A guard rail about 4 feet high ran around the outside of the track primarily to contain loose horses. A rail also ran intermittently on the inside of the track. Due to their intended purpose, the rails were built to be quite strong; they were made of PVC or some plastic material and secured into the ground by upright posts also of plastic on top of metal spigots. The upright posts were padded for 20 to 25 yards following each hurdle. Mr Linley, the Senior Inspector of Courses for the British Horseracing Authority, gave evidence that the padding was 2 to 3 centimetres thick.[3]The first of the hurdles was located approximately 100 yards from the start. It was 20 yards wide and set up towards the outside of the track; there was a distance of approximately 4 feet between the outside edge of the hurdle and the guard rail. The hurdle itself was described as being “fairly modest”. The total width of the track where the hurdle was positioned was 46 yards.[4]During the race, Mr Hide jumped over the hurdle towards its right hand side approximately 13 feet 6 inches (or 4 and a half yards) from the outside guard rail. After clearing the hurdle, his horse stumbled and fell. The horse careered sharply to the right, which caused Mr Hide to fall from his mount; he hit the ground and then moved (at speed) side ways or backwards into contact with one of the guard rail upright posts hitting it with his left hip. The judge found that it was a very unusual type of fall which would not have been expected or reasonably foreseen. Mr Hide sustained a fractured pelvis and a head injury. Happily he has made a good recovery. Damages have been agreed at £58,000 if the defendant is liable.[5]In an action which was not commenced until 9th November 2009, and regrettably not brought to trial until June 2012, Mr Hide sought damages against the management of the racecourse. Three bodies were joined. The second defendant, Jockey Club Racecourses Limited, is the correct defendant and nothing turns on the joinder of the other two defendants.[6]Mr Hide relied largely upon regulation 4 of the Provision and Use of Work Equipment Regulations 1998 (“the Regulations”) which provided that work equipment is to be so constructed or adapted as to be suitable for the purpose for which it is provided.[7]Mr Hide’s contentions before the judge were that the hurdle, not itself the subject of criticism, was placed too close to the perimeter railing, which was itself said to be too unyielding and/or insufficiently padded. The judge dismissed the claim holding that both the hurdle and the guard rail were suitable equipment.

Rules governing horse racing

[8]As a licensed course, Cheltenham had to comply with General Instructions issued by the British Horseracing Authority (“the BHA”). These instructions take into account any input from the Professional Jockey Association, the National Trainers Federation and the Racecourse Association. Before the season began in October Mr Linley spent 3 hours at the course measuring fences, checking the rails and positions of the hurdles. His report of 24th October said:- “The course was in great condition and a real credit to all the Ground staff … fences in good order as always well presented.” A second report of 10th November said that the courses “were in excellent condition … fences in good order”. In his evidence Mr Linley said that he considered the set-up to be safe and that the conjunction of the hurdle and rail was suitable. There was no indication that the BHA General Instructions had not been complied with.[9]The running rails and the uprights had been supplied by Duralock UK Ltd, a market leader in Western Europe and the Middle East. They had been tested by the Rubber and Plastic Research Association at Shrewsbury and approved by the BHA. The judge said that there was no expert evidence about the effectiveness of the padding but the BHA General Instructions did contain the following provisions:- “Padding of a type approved by the Inspector of Courses is to be applied to the uprights of running rails on the inside for a distance of 30 yds AFTER each fence or hurdle. If there is a possibility of horses jumping either side of a fence or hurdle, the uprights of both running rails are to be padded. Running rails define the extent of the course … [they] must be of a design approved by the Stewards of the Jockey Club … unless horses do not usually run against them during the course of a race … Where a hurdle has an adjacent inner running rail, a lay-by 20 yards long and 2 yards wide must be provided on the landing side, unless otherwise agreed by the Inspector of Courses.”

The judge summarised the position in this way:

[10]- “24. So the position is that the claimant was not able to demonstrate any breach of any of the provisions or stipulations which the professional bodies which administer racing and which represent those who take part in it had considered it necessary to lay down. There was no evidence of any complaints about the hurdle, its position, the running rails or their padding, either before or after the accident, from jockeys, inspectors or officials. Although some falls in hurdle races were of course to be expected, what happened to the claimant was on the evidence unusual and unexpected. As the claimant himself said, “I am not aware of a similar accident to another jockey”.”[11]Having set out the relevant terms of the Regulations he then reached the following conclusions:-(1) both the railings and the hurdles were work equipment from the point of view of the employees who put them up;(2) Mr Hide used the hurdle but not the railings;(3) there was nothing wrong with the hurdle;(4) the railing was a suitable railing;(5) Mr Hide had not established that the padding was unsuitable; and(6) the relative disposition of the hurdle and the railing did not make either of them unsuitable for the purpose for which they were used or provided. He described the question whether the relative disposition of the hurdle and railing rendered them unsuitable for the purpose for which they were used or provided as lying at the heart of the case and said this at his point of decision:- “51. The answer must I think be found in the phrases “suitable for the purpose for which it is used or provided” and “reasonably foreseeable”. The purpose of a racing obstacle is to provide a test of nerve and skill for horse and rider and thus a pleasure for the spectator, not to mention profit for the betting industry. In deciding what is a suitable jump or course layout, a course designer can and should bear in mind what is reasonably likely to happen. Is there a reasonably foreseeable source of harm? This must be a matter of judgment and degree. If a jump was so dangerous as to make injury probable, as opposed to merely foreseeable, then it would, strongly arguably, be unsuitable within the meaning of the regulation. 52. The concept of reasonable foreseeability, a classic common law phrase, is imported in regulation 4. This, in my judgment, enables the manager of a racecourse appropriately to consider not whether a layout is a conceivable or “foreseeable” cause of injury, but whether the injury is “reasonably foreseeable”, viz whether the injury is likely or unlikely in the circumstances. If in the view of those with knowledge and experience of racing a layout is not thought likely to be a cause of danger, then it is likely to be “suitable”. It might also be observed that regulation 4(4) uses the expression suitable in any respect which it is reasonably foreseeable “will”, not “may”, affect health and safety. It must be harder to establish that a state of affairs will affect safety than that it may. 53. This racecourse was, I find, administered by experienced and conscientious people who were alive to safety issues. They did “have regard to the working conditions and to the risks of safety” which existed (regulation 4(2)). Their intention was, as was the purpose of the regulations, “to promote a culture of good practice with a view to preventing injury” (per Lord Hope in Smithsupra at paragraph 15). The course was invigilated by an inspectorate with similar qualities. Mr Hide called them good people. The hurdle and rails were erected under the hand and eye of a suitably experienced and knowledgeable groundsman who understood the behaviour of horse and rider. It was used by experienced jockeys, always alive to the risks of falling from or with their horses. The jockeys have safety representatives. 54. The considerations which the organisers and their staff gave to the arrangements was, I am satisfied, at least as efficacious as a formal risk assessment as envisaged by the regulations, which may or may not have taken place. I have no doubt that the views of these people alone and in combination, were and are the best indication of what disposition of hurdle and fence was “suitable”, including suitable in respects in which it was reasonably foreseeable would affect the safety of any person. All had safety in mind when fulfilling their respective roles and all had a good understanding of what was likely and unlikely to happen. None thought that an accident of this kind was at all likely, though of course it was possible, and in that sense foreseeable. None had any doubts about the suitability of the arrangements at the material time.”[12]As I read the above paragraphs the judge is applying the phrase “reasonably foreseeable” as a common lawyer would in resolving a case of negligence and then says that the layout of the hurdle and the rail is likely to be suitable “if in the view of those with knowledge and experience of racing a layout is not thought likely to be a cause of danger.” The question is whether the judge was correct to use the concept of reasonable forseeability in the classic common law manner when assessing liability under the regulations. It might also be a question whether the judge’s use of the word “likely” unacceptably dilutes the concept of reasonable foreseeability in any event. A yet further question is whether the views of the organisers of the racecourse and their staff can truly be “the best indication of what disposition of hurdle and fence was “suitable”” as the judge states in paragraph 54, even though the judge accepted that an accident of the kind that occurred was possible “and in that sense foreseeable”.

The Legislation

[13]It is now necessary to set out the relevant provisions of the Regulations and of the Directives pursuant to which the Regulations were enacted. Regulation 3 provides:- “Application (3) The requirements imposed by these Regulations on an employer shall also apply –(a) to a self-employed person, in respect of work equipment he uses at work;(b) subject to paragraph (5), to a person who has – control to any extent of – (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment; or (iii) the way in which work equipment is used at work, and to the extent of his control.” (a) to a self-employed person, in respect of work equipment he uses at work; (b) subject to paragraph (5), to a person who has – control to any extent of – (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment; or (iii) the way in which work equipment is used at work, and to the extent of his control.”[14]Regulation 4 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” – (a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person; …” (a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person; …”[15]These regulations were implemented pursuant to the United Kingdom’s obligations under both what is generally known as the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC). The preamble to the Framework Directive provides:- “Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers.”[16]Relevant Articles are Articles 1, 2(1), 5 and 6:- “Article 1 Object 1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work. 2. To that end it contains general principles concerning the prevention of occupational risks; the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles. 3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work. Article 2 Scope 1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). Article 5 General Provision 1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work. 2. Where, pursuant to Article 7(3), an employee enlists competent external services or persons, this shall not discharge him from responsibilities in this area. 3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer. 4. This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care. Article 6 General obligations on employees … 2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 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; …” Object Article 2 Scope Article 5 General Provision Article 6

General obligations on employees

[17]The Use of Work Equipment Directive provides:- “Article 3 General obligations 1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health. 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 and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question. 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 minimize the risks.” Article 4(3) provides:- “3. Member States shall, after consultation with both sides of industry and with due allowances for national legislation and/or practice, establish procedures whereby a level of safety may be attained corresponding to the objectives indicated by the provisions of Annex II.” Annex II specifies General Provisions for all work equipment and provides:- “1.1 Work equipment must be installed, located and used in such a way as to reduce risks to users of the work equipment and for other workers, for example by ensuring that there is sufficient space between the moving parts of work equipment and fixed or moving parts in its environment and that all forms of energy and substances used or produced can be supplied and/or removed in a safe manner.”

General obligations

[18]Two points may be made at once. First, although the Directives apply only to workers and employers, the Regulations apply to any person who has control to any extent of work equipment to the extent of that control. They therefore cover a wider area than the Directives. That is important for Mr Hide who, as a jockey, is not of course employed by any of the defendants. Secondly the Directives (and therefore the Regulations) apply to leisure activity by virtue of Article 2.1 of the Framework Directive.[19]A third point central to the present case is that, whereas both Article 3.1 of the Use of Work Equipment Directive and Regulation 4 of the Regulations impose a requirement that work equipment is to be suitable for the purpose for which it is used and (expressly or by necessary implication) that that work equipment can be used without impairment to health and safety, the Directives do not anywhere define the word “suitable”. Regulation 4(4) does, however, state that “suitable” means “suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person”[20]The concept of reasonable foresight is thus introduced into our domestic Regulation but is absent from the Directive. The question therefore arises whether the Regulation has correctly implemented the Directive.[21]In Robb v Salamis [2007] ICR 175, [2006] UKHL 56, the pursuer was injured when descending from the top-tier bunk in his oil rig accommodation because the ladder he used for the purpose was not properly engaged within its retaining bars. The House of Lords held that that ladder should have been clamped or otherwise fixed to the side of the bunk. They held that it was reasonably foreseeable that that failure would affect the health and safety of any person and that there was therefore a breach of Regulation 4. It was, therefore, unnecessary for them to consider whether the reference to reasonable foreseeability was a permissible transposition of the Directive. Lord Clyde, however, said this:- “45. Before parting with the case I should record an uncertainty which I have felt about the basis upon which the claim has been presented in the pleadings and in the argument in the courts below. Before this House it has been argued on the assumption that Regulation 4(1) placed an onus on the appellant to prove foreseeability and that the standard which he had to establish was one of a reasonable foreseeability such as the law has long recognised in civil claims for damages. That is the standard which is expressly adopted in paragraph (4). But one must also have regard to the context of the regulation and in particular the Framework Directive and the Work Equipment Directive. In Article 3.1 of the latter there can be found the immediate origin of Regulation 4(1) and presumably of Regulation 4(3). No origin for Regulation 4(4) was identified before us other than Article 5(4) of the Framework Directive. But the language of that provision immediately gives rise to difficulty. One problem is whether the exclusion of liability which this provision permits is a matter which can be built in to the duty on the employer so as to make it one of the elements in his pleading and proof which the employee must include in order to establish liability on the part of his employer. The question of onus was not canvassed before us. The appellant had undertaken that burden in his pleadings and the case has proceeded upon that basis. The appellant was prepared in his appeal to the House to open up this issue, but preferred to place his principal attack on the basis of the case as it had been presented in the courts below. The matter has accordingly in the event not been canvassed before us but to my mind it remains as a question which may yet have to be resolved. … 47. Another question may be whether, if Article 5(4) is the basis for Regulation 4(4), it is appropriately transposed by the introduction of the concept of reasonable foreseeability. On the face of it the language of Article 5(4) is significantly different. It speaks of “unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care”. It may be difficult to construe the words of the Regulation to equate with this language. But the meaning and effect of Regulation 4(4) has not been argued before us.” In the present case the meaning and effect of Regulation 4(4) was argued before us and we must face up to the difficulties that Lord Clyde has raised. The first difficulty relating to the onus of proof only received brief mention in argument but is an essential part of the transposition question. It is, however, the difficulty raised in para 47 of Lord Clyde’s speech that is initially more pressing.[22]As Lord Clyde says it is difficult to see any origin for Regulation 4(4) other than Article 5(4) of the Directive. As he also says, Article 5(4) speaks of excluding liability where occurrences are “due to unusual and unforeseeable circumstances beyond the employers’ control or to exceptional events the consequences of which could not have been avoided despite the exercise of all due care” [my emphasis] There are thus two categories of occurrences in respect of which a defendant may seek to excuse his liability namely i) occurrences due to unforeseeable circumstances beyond the employers’ control; or ii) occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care. The first category expressly introduces the concept of foreseeability but in a limited way; the circumstances causing the accident must not only be “unforeseeable” but also “beyond the employer’s control”. It can also be said that the second category recognises the concept of foreseeability by requiring that there has to be an exceptional event the consequences of which could not be avoided by the exercise of “all due care”. One can only assess whether such an event has occurred by considering whether “all due care” has been exercised; if an event is truly unforeseeable, then its consequences could not be avoided by the exercise of “all due care”. It is no doubt due to these references to foreseeability that the draftsman of the Regulations defined “suitable” to mean “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person”.[23]In these circumstances it is difficult to say that the introduction of the concept of reasonable foreseeability in Regulation 4(4) means that the Directives have not been appropriately or accurately transposed into English law. It must be the case, however, that the words “reasonably foreseeable” fall to be construed so as to be consistent with the limited concept of foreseeability envisaged by the Directive. Article 5(4) allows member states to opt to provide for the exclusion or limitation of an employer’s responsibility in respect of each of the two categories of occurrences referred to above. Since the option allowed is to exclude or limit what would otherwise be the employer’s (or another defendant’s) liability, it seems to me that it must be for the defendant to prove that any relevant accident was due either to unforeseeable occurrences beyond the defendant’s control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care. So construed the Regulation will be consistent with the Directive.[24]Approaching the matter in this way would then also be consistent with Lord Rodger’s speech in Robb v Salamis when he said (para 53):- “Without modifying the sheriff’s findings in fact, the Extra Division explored exactly how the accident to the pursuer might have happened. They then held, 2005 SLT 523, 540, para 115, that the sheriff had to consider whether it was reasonably foreseeable that an employee would be injured in the way they described. In my respectful view that was the wrong test. The primary purpose of the relevant regulations is not to give a ground of action to employees who are injured in some particular way but to ensure that employers take the necessary steps to prevent foreseeable harm coming to their employees in the first place. Therefore, the respondents’ obligations under the regulation were triggered because it was reasonably foreseeable that an employee might injure himself while using a ladder which became dislodged and fell because it had not been replaced properly. The approach advocated by the Inner House would tend to limit the broad protection which the regulations are intended to provide.”[25]Once, therefore, the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were “unforeseeable” or “exceptional” in the sense given to those words by the Directive.

As applied to this case

[26]It follows from all this that the judge was, with respect, incorrect to import into Regulation 4 the “classic common law phrase” of “reasonable foreseeability” and then dismiss the claim on the basis(1) that the way in which Mr Hide was injured was very unusual and(2) that the defendant had abided by all the requirements of the BHA and could not be expected to do more. Those factors might once have excused a defendant in a case brought at common law (although the relevance of the first factor may even then be questionable in the light of Hughes v Lord Advocate [1963] AC 837) but the Directives and therefore the Regulations exist in a world different from the common law. Adapting the words of Lord Rodger in Robb the primary purpose of the relevant regulations is to ensure that employers (and other defendants) take the necessary steps to prevent foreseeable harm coming to their employees in the first place and the defendant’s obligations are triggered if it is reasonably foreseeable that an employee might injure himself. As the judge himself said (para 54) an accident of the kind that happened to Mr Hide, while not at all likely, was possible and in that sense foreseeable. If it happens, it will be for the defendant to show that it was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided.[27]This the defendant cannot do. Quite apart from the fact that the defendant did not plead any such unforeseeable circumstances or exceptional events (which is perhaps understandable since the potential difficulties raised by the transposition of Directives into the Regulation only emerged fully in the supplemental skeleton filed on behalf of Mr Hide shortly before the hearing), it is difficult to see what unforeseeable circumstances or exceptional events could be relied on. I do not myself see that an unusual fall could be classified as either. Even if it could, the circumstances of that fall cannot be said to be beyond the control of the defendant or to have engendered events which could not be avoided despite the exercise of all due care. The padding of the uprights of the guard rail could have been thicker; the hurdle could have been placed at a greater distance from the guard rail. The defendants cannot show that if either or both precautions had been taken, Mr Hide would inevitably have suffered the injury which he did. I should perhaps add that not only the hurdle but also the guard rail were, in my view, being “used” as “work equipment”. The fact that Mr Hide did not expect to come into contact with the guard rail does not mean that he was not using the guard rail.[28]In a spirited response to Mr Christopher Sharp QC’s arguments for Mr Hide, Mr Peter Cowan submitted:- i) Regulation 4 was no more favourable to a claimant than the common law; ii) there had been no accidents of a similar kind in the past in which a jockey had been injured by contact with an outer guard rail near a hurdle; iii) it was sufficient for the defendant to have complied with BHA’s General Instructions; iv) if reasonable foreseeability in the common law sense could be implied into section 29(1) of the Factories Act 1961 as the majority of the Supreme Court held in Baker v Quantum Clothing [2011] 1 WLR 1003; [2011] UKSC 17, so it should be implied into the Directive and thus the Regulation; v) breach of the Regulations constituted a criminal offence under the Health and Safety at Work Act 1974 and in case of ambiguity should therefore be construed against a claimant and in favour of a defendant.[29]I have already made clear that I cannot accept the first submission. It is inconsistent with the thrust of Robb v Salamis in that it tends “to limit the broad protection which the regulations are intended to provide”.[30]It follows that submissions two and three cannot conclude the matter in favour of the defendant. They are indeed not very relevant anyway if the question is whether a defendant can rely on unforeseen or exceptional circumstances beyond the defendant’s control or which could not be avoided by the exercise of all due care. As Lord Hope indicated in Robb v Salamis (para 24) the whole point of the Regulation is that accidents should be anticipated. Moreover on a point of fact there had been a not totally dissimilar incident at Newton Abbot in 1999, although it seems that there the upright did not consist of metal but rather of firm PVC or plastic.[31]As to the fourth submission it is true that Lord Mance (at para 72) pointed out that Lord Hope had in Robb v Salamis confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive and that Lord Dyson (at para 111) said that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer. But the provision of the Factories Act 1961 which was being construed requires every place at which any person has to work to be made and kept safe “so far as reasonably practicable.” There is no such express provision in the Directives. Insofar as Article 5(4) entitles Member States to exclude or limit a defendant’s liability it uses different words which must be given their own natural construction.[32]It is true that a breach of the Regulations can give rise to criminal liability. But the Regulation is to be regarded as giving rise to a form of liability which is a stricter liability than at common law. It would be wrong to dilute the liability aspect of the Regulations when questions of the degree of fault can always be taken into account in sentencing.

Conclusion

[33]In spite of these arguments I would for the reasons given allow this appeal and enter judgment for Mr Hide.[34]I agree with both judgments.[35]I have not found this an easy case. The difficulty, for me, principally arises out of the context which has given rise to this claim and the applicability of the Regulations to this claim.[36]In this regard, two features stand out:- i) First, jump racing is dangerous. Those who participate in it know it to be so. To be a jockey takes a great deal of guts as well as a great degree of skill. There was, as the trial judge noted, evidence from one top former professional jockey that in jump races he had fallen in around eight to ten per cent of his races. In hurdling, the evidence was that between two and four per cent of runners typically may fall. Injury, potentially serious, is a consequential foreseeable hazard. Risk is thus inherent in the sport. Indeed it is risk that plays a part in contributing to uncertainty of outcome: which itself is an essential element of the sport. ii) Second, it is perhaps a natural instinct to assess the liability of a racecourse by reference to yardsticks of reasonableness. In the present case, for example, Cheltenham Racecourse, as was found, prides itself on its attention to safety considerations. Various safety reports and checks undertaken regularly gave glowing commendations and assessed the set-up to be safe. There was full compliance with instructions and guidance from the BHA (albeit the BHA did not itself purport to ensure compliance with Health and Safety requirements for any particular course) and other relevant bodies. No relevant concerns had previously been raised. The trial judge found that there was no failure to take reasonable care at common law and no failure to take such care as was reasonable in all the circumstances for the purposes of the Occupiers’ Liability Act. An application for leave to appeal against those findings was refused and not renewed.[37]However, the Regulations – reflecting the relevant Directives – are in altogether more uncompromising terms. In particular, the opening language of Regulation 4(1) and (3), as does the language of Article 5.1 of the Framework Directive, imposes an obligation on an employer to “ensure” an outcome. The relaxation sanctioned – intended, it is to be inferred, to accord with Article 5.4 – is that set out in Regulation 4 by reference to the definition of the word “suitable”. It is that which brings in the notion of reasonable foreseeability. As to this, I agree with the analysis of Longmore LJ as to the proper interpretation and application of Regulation 4 having due regard to Article 5.4 of the Framework Directive.[38]It might seem an oddity that the Regulations can apply to a case such as the present at all. This was hardly an accident befalling an employee at the workplace of the typical kind or as ostensibly contemplated by the Directives. But the Regulations are (as was common ground) so drafted as to be capable of applying to a self-employed professional jockey such as Mr Hide. Further, the trial judge carefully considered whether railings and hurdles at a race track could constitute “work equipment” for the purposes of the Regulations. He noted that “work equipment” has a broad meaning and concluded that they did constitute work equipment. There is no appeal from that finding. The judge also held that there was “use” of the hurdles for the purpose of the Regulations. There is no appeal against that finding either. (In common with Longmore LJ, I would also incline to think that – on the judge’s approach – the railing also should have been found to have been “used”, for the purposes of the Regulations.)[39]Once it is accepted that the Regulations apply to what happened here then the outcome cannot be determined simply by the application of common-law principles. With all respect to the judge, in what was a very careful and thorough judgment, I think that his reasoning was vitiated by the approach he adopted in that regard: in particular that set out in paragraph 52 of his judgment, which in effect conflates common law principles with the requirements of Regulation 4.[40]Given the relatively stringent nature of the Regulations, I have concluded that the overall outcome has, on the particular facts, to be one in favour of Mr Hide. What happened here was reasonably foreseeable, for the purposes of Regulation 4, even if the way in which the accident actually happened was most unusual and hitherto unprecedented. I thought, in fact, that there was a great deal of force in Mr Sharp’s blunt and simple submission that an accident of this type (in the sense of collision with the upright of the outer railing at this location) was not only foreseeable, it had in fact been foreseen: the placing of the padding round the upright of itself evidenced that. But, as it seems to me, even that was not a necessary feature for liability to exist in this case. As Lord Hope said in Robb v Salamis at paragraph 24:
“The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen….”
At paragraph 29 he went on to say (citing authority for this purpose):
“The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened….”
In such circumstances, the fact that the accident occurring to Mr Hide occurred in a most unusual way (his horse skidding very sharply to the right, after falling at the outer end of the hurdle) is, in my view, not of great moment. What matters is the reasonable foreseeability of a collision between horse or rider with the railings’ upright at this place.[41]It is of note that the judge, having at paragraph 17 of his judgment expressly found in the present case that this was “not a fall of a type which would have been expected or reasonably foreseen”, at a later stage (after recording that the various witnesses thought that an accident of this kind was not “at all likely”) himself went on in terms to state that “of course it was possible and in that sense foreseeable”: paragraph 54 of the judgment.[42]The judge also referred to the “remorseless march” of health and safety legislation (“health and safety gone mad” is a familiar enough popular expression of disapprobation in various contexts). But the Regulations do not impose strict liability on an employer in the position of this racecourse. A defence, by reference to “suitability”, is available.[43]Such an approach does not require Cheltenham Racecourse, or other racecourses, to achieve the impossible. In the present case evidence was adduced on behalf of Mr Hide (including from Mr Meade, an equestrian expert) as to possible ways of avoiding or mitigating the risk posed by this particular collocation of hurdle and railings: for example, creating a safer distance between landing area and railings; reducing the rigidity of the upright posts; and/or the provision of more substantial padding. I agree, however, with Longmore LJ that it was not for Mr Hide to prove the availability of effective remedial options: it was for the racecourse to show (if it could) that the consequences for Mr Hide from this accident could not have been avoided despite the exercise of all due care for the purposes of Regulation 4. I observe, for example, that in the present case there was, as the judge found, ample land available beyond the outer railings at this point to permit the railings to be set further away from the hurdle, and thereby create the potential for a safety “lay-by”. But the racecourse had wished to preserve such extra land without use or marking for the later March meeting. The evidence, I add, also was that, after this accident, the racecourse changed to the use of wooden uprights (albeit it seems that at some stage they subsequently departed from that). At all events, there was no finding that taking any such step – or any of the steps suggested by Mr Meade – still would not have precluded the injury here resulting.[44]The judge was concerned about the implications of a conclusion in favour of Mr Hide. He was concerned about “the relentless logic of the personal injury lawyer”, as he put it. Were jump races to be required to be made so undemanding that all horses could be expected to negotiate them without mishap? How were the requirements of the Regulations to apply, for example, to Beecher’s Brook at Aintree? These are understandable concerns. But they will not profit from an attempt at generalised answers. Of course the hazards of jump and hurdle racing may lawfully remain: jumps and hurdles may properly and lawfully continue to pose challenges of varying difficulty. As Mr Sharp pointed out, however, the adjustments to the layout or construction of hurdles and/or railings mooted in this case did not affect the “integrity and ethos” (in his phrase) of jump or hurdle racing. What was fundamentally at issue here was not the suitability of this hurdle, taken on its own, or the suitability of the railings’ upright, taken on its own. It was a combination of matters: the location of this particular hurdle so close to this railings’ upright (with its particular construction) that gave rise to the problem.[45]The point this case establishes, therefore, is that it is not enough for a defendant, where Regulations apply, simply to comply with the requirements of reasonableness imported by the common law or the Occupiers’ Liability Act. Where the Regulations apply, the test for an employer (or one in a position comparable to an employer under Regulation 3) is stricter. If, in any particular case arising hereafter, it is shown that what occurred was due to unusual and unforeseeable circumstances, beyond the employer’s control; or if it is shown that what occurred was due to exceptional events the consequences of which could not have been avoided despite the exercise of all due care: then that will mean the employer will have no liability. That, it can be accepted, may be in some situations onerous for an employer. But the Regulations are evidently designed to be stringent; and the test laid down is in general terms workable.[46]For those reasons, and for the reasons given by Longmore LJ with whose judgment I agree, I also would allow the appeal.

Cited in 3 later judgments