Orzechowska v ABF Plc (t/a Speedibake) [2014] EWHC 495 (QB)

[2014] EWHC 495 (QB)Case No 2 YJ 62576IN THE HIGH COURT OF JUSTICEVenue IN THE LEEDS DISTRICT REGISTRYON APPEAL FROM BRADFORD COUNTY COURT(HHJ BARTFIELD)QUEEN’S BENCH DIVISIONVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 February 2014
Before
THE HONOURABLE MR. JUSTICE COULSON
Between
IZABELLA ORZECHOWSKAAppellantABF PLC T/A SPEEDIBAKERespondent
Mr Kaiser Nazir (instructed by Liddys Solicitors) for AppellantMr Robert McMaster (instructed by Weightmans LLP) for RespondentHearing Hearing date: 26 February 2014
JudgmentThe Hon. Mr Justice Coulson:
[1]INTRODUCTION In an extempore judgment given on 8 March 2013 at Bradford County Court, HHJ Bartfield dismissed the appellant’s personal injury claim. On 18 October 2013, Supperstone J gave the appellant permission to appeal that decision. No reasons were provided.[2]THE JUDGE’S FINDINGS OF FACT On 27 March 2010, the appellant was working at the respondent’s bakery. She was working on the production line, sitting at a chair placing muffins onto a conveyor belt. When the time came for her to be relieved, she left the chair and stepped away from it whilst her colleague, Mr Thorne, replaced her at the conveyor belt. As she changed places, she fell against or tripped over a pipe, about 18 inches off the ground, through which jam passed on its way between a large tank and a nozzle that allowed the jam to be inserted into the muffins. The pipe was about 6 inches in diameter.[3]The appellant’s claim was brought by reference to Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 which provided:
“So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.”

The judge made the following findings of fact:

[4]1 The pipe was large and its location was clear to everyone. As the judge put it at paragraph 8 of his judgment, “you certainly cannot miss it”. 4.2 The pipe was in the same position on the day of the appellant’s fall as it was every other day, both before and after the accident (paragraph 13). 4.3 The gap between the chair and the pipe was one metre (paragraphs 8, 9 and 13). 4.4 The appellant stepped outside the area she needed to be in “for no good reason…and collided with a very straightforward object that was right in front of her” (paragraph 15). 4.5 The pipe did not present any danger to anybody. At paragraph 14 the judge developed this conclusion as follows:
“It seems to me that you could just as easily say that the chair on which the claimant and Mr Thorne had been sitting was also an obstruction, since it existed and was there. Following Mr Nazir’s reasoning, if somebody collided with the chair, they could say it was an obstruction that they had not noticed and I am afraid that is very much the category in which I see this piece of equipment. It is there for everybody to see, large and plain in front of them, and I am afraid, if she collided with it in circumstances where there was absolutely no need for her to go over it, then I am afraid she was entirely the author of her misfortune.” 4.6 The appellant had not reported the injury or accident to anyone, which was a finding contrary to her evidence. As the judge put it at paragraph 10 of his judgment, this finding “throws into some significant doubt the accuracy of the account that the claimant has given about this incident.”
[3]THE BASIS OF THIS APPEAL[5]It is important to stress that there is just one ground of appeal, namely that:
“The learned judge was wrong at law or in the exercise of his discretion to find that the pipe was not an obstruction or something that may cause a person to trip or fall contrary to regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.”
[6]The reference to the judge’s discretion is erroneous: this is not a matter of discretion. The question of whether or not this pipe was an obstruction was, if not a pure matter of fact, then a mixed matter of fact and law. I have set out the judge’s relevant findings of fact in paragraph 4 above. Thus the only remaining issue on this appeal is whether or not, on the basis of those findings of fact, the judge was wrong as a matter of law to find that the pipe was not an obstruction in accordance with Regulation 12(3).[7]Two other matters were touched on by Mr Nazir during the course of his helpful written and oral submissions which, in my view, should also be addressed at the outset. First, at paragraph 7 of Mr Nazir’s skeleton argument, he argued that the judge was wrong to find that the appellant was in an area of the workplace that she should not have been in when she fell, and that the judge was also wrong to say that “she could have avoided the pipe”. With respect, it is not open to the appellant to challenge these findings of fact. The judge heard the witnesses, and came to a clear conclusion that the pipe was so far from the chair that the appellant should not have been in the area of the pipe when she fell. He also said that the pipe was so big and so obvious that the appellant could have avoided it.[8]These were findings of fact which it was open to the judge to make on the evidence that he heard. They were not matters of law. It is not said, and it could not be said, that those findings were not available to him on the evidence. In those circumstances, no appeal can be mounted on the basis that those findings were wrong.[9]Secondly, Mr Nazir was anxious to take me to passages in the transcript which, he said, showed that Mr Coulter, one of the respondent’s witnesses, accepted that the pipe was a tripping hazard. As I explained to him, it is rarely appropriate on an appeal such as this to get involved in a debate about what other findings the judge may have made. Indeed, this was a good example of the dangers of so doing, because as Mr McMaster showed, Mr Coulter also said that the pipe was not a risk because they simply did not expect anyone to be in the vicinity of the pipe.[10]Thus, as already noted above, this appeal focuses on one very narrow issue: whether, on the findings of fact made by Judge Bartfield, it was open to him as a matter of law to find that the jam pipe was not an obstruction under the relevant Workplace Regulation.[4]THE LAW[11]Regulation 12(3) is concerned with obstructions, articles or substances which may cause a person to trip or fall. Mr Nazir is right to say that, absent any question of contributory negligence, this involved a two-stage process: first, was there such an obstruction and, if so, was it reasonably practicable to do anything to reduce or eliminate the risk? The present case focused on the first stage only.[12]Two legal issues arose during the appeal. The first issue was whether, in dealing with the first stage of the test, the court was obliged to consider any question of foreseeability. Mr Nazir said that the first stage was very simple and involved only a consideration of whether the physical object could be tripped over; he said that the judge’s comments about the obvious nature of the pipe and similar comments had contaminated the simple approach required by the first stage of the test. Mr McMaster disagreed and said that some consideration of foreseeability was important and, on the facts of this case, decisive. The second issue concerned the nature of the obstructions revealed in the case law; Mr Nazir fairly conceded that he had been able to find no authority in which a permanent piece of plant, such as the jam pipe, had been the subject of a Regulation 12(3) claim.

(a) Foreseeability

[13]As to whether stage one involves any consideration of foreseeability, I am in no doubt that it does. In McGhee v Strathclyde Fire Brigade [2002] SLT 680) at paragraph 13, Lord Hamilton said this:
“[13] Regulation 12(3) is concerned not with the constructional state of the floor but with obstructions or any article or substance on it which may cause a person to slip, trip or fall. The requirement is limited by the qualification of reasonable practicability but that qualification, in my view, relates at least primarily to what practical measures can reasonably be taken to keep the floor free from such things, whether in advance or, as in the case, for example, of spillages, after they have come to be on the floor. It does not, in my view, relate to the question whether the substance can or cannot be anticipated as a cause of slipping. A measure of anticipation is, however, built into the words "may cause" - which may be contrasted with "causes" and "is likely to cause". In my view a similar measure of foreseeability is built into the requirement under Regulation 12(3) as is built into Regulation 12(1) (as read with Regulation 12(2)). In the present case to establish a breach of Regulation 12(3) the pursuer, in my view, must prove that immediately prior to his accident there was on the floor a substance, here polish, which presented a real risk that someone might slip. This is, or at least may be, from the employer's point of view a stricter requirement than that under section 28(1) of the Factories Act 1961, which it supersedes. There the requirement, also subject to the qualification of reasonable practicability, was to keep the floor free from any substance etc likely to cause a person to slip.”
[14]This is not to import wider issues such as what might have been reasonably foreseeable; the consideration required is simply to address the narrower issue of what Lord Hamilton called ‘a measure of anticipation’; whether the obstruction ‘may’ cause a person to slip, trip or fall.[15]My attention was drawn to what Tuckey LJ said in Merseyside Fire and Civil Defence Authority v Bassie [2005] EWCA Civ 1474. He said:
“Looking at the language of the Regulation, it seems to me that the dust on the floor was a substance which might cause a person to slip. No question of knowledge or foreseeability is involved at this stage. The mere presence of a substance which may cause a person to slip is enough to engage the obligation imposed by the Regulation, subject to the reasonably practicable defence, which it is for the employer to prove.”
[16]There was a suggestion that this was at odds with McGhee. I disagree. All that Tuckey LJ was saying was that, once the first stage of the test had been satisfied – was there an obstruction or substance which may cause someone to trip? – questions of foreseeability became irrelevant. He was not saying that a proper consideration of the first stage of the test under Regulation 12(3) did not involve some analysis of foreseeability; and in accordance with McGhee, it plainly did.

(b) Nature of Obstructions or Substances in the Authorities

[17]The emphasis in the cases has been on obstructions or substances which should not otherwise have been there, or which gave rise to an unsatisfactory (and often temporary) condition that put the worker at risk. Thus in McGhee it was the very recent application of polish which gave the floor its state of slipperiness, whilst in Bassie [2005] EWCA Civ 1474, it was a fine layer of dust which led to the claimant’s fall.[18]The other cases which were cited to me concerned obstructions which were brought into the workplace from outside and/or which were left in the wrong position. In Burgess v Plymouth City Council [2005] EWCA Civ 1659, it was a large lunchbox, and in the Court of Appeal the argument was limited to whether the lunchbox could have been an obstruction to the claimant, given that she was employed to remove such things. In Anderson v Newham College [2002] EWCA Civ 505, it was the feet of a movable classroom whiteboard. The problem was that the board was not properly placed with its feet pointing towards the wall, but was instead facing into the gangway, such that its feet created a significant trip hazard. It was, as the trial judge put it, “the positioning of the article which converts it from an otherwise innocuous article into an offending article within the Regulation…” That approach was expressly upheld by Sedley LJ at paragraph 23 of his judgment.[5]ANALYSIS[19]The issue at trial was whether the pipe, in Lord Hamilton’s words, presented “a real risk that someone might trip” over it or against it. Judge Bartfield had no doubt that it did not; that the pipe was not an obstruction which may cause a person to trip. This was principally due to its location and size, and in part because it was a permanent and obvious part of the plant. He said that the Regulations could not apply to everything and made the comparison, noted above, with the chair on which the appellant had earlier been sitting (see paragraph 4.5 above).[20]Whilst understanding the overall point that Judge Bartfield was making, I am not sure that the chair was a particularly good example of the proposition. Indeed it is possible to see how the chair might have been capable of forming an obstruction under the Regulations, because it was unfixed and could have been temporarily placed in a position which caused trips or falls. That said, I agree that the pipe was not an obstruction in accordance with the Regulations. There are two reasons for that.[21]First, on the judge’s findings, the pipe was at such a distance from the chair, and was so big and obvious, that to fall against it or trip on it could only have happened if the employee was somewhere where he or she should not have been. It did not therefore present a real risk of tripping, on the basis of the analysis outlined in McGhee.[22]I agree with Mr Nazir that the judge might have dealt with the first stage of the test more clearly, because I can see that paragraphs 14 and 15 of his judgment might be read as a dismissal of the claim simply because the appellant should have seen the pipe and was therefore at fault. That is not the right approach. But I think Mr McMaster was right to say that, on analysis, all the judge meant was that, on his findings of fact, particularly as to where the pipe was in comparison with where the appellant should have been, the pipe was not likely to present a risk of tripping and was therefore not an obstruction in accordance with Regulation 12(3).[23]Rather than the chair, the better analogy might have been with the wall of the premises or the conveyor belt itself. If an employee was not looking where he or she was going, and walked into the wall or fell over the conveyor, it might be said that these were obstructions so that, on Mr Nazir’s case, Regulation 12(3) was triggered. Plainly, that would be a nonsense: the wall or the machine do not – properly considered – present a real risk of tripping and are not an obstruction in accordance with Regulation 12(3). That issue leads on to the second reason why I have concluded the judge was right.[24]In my view, Regulation 12(3) is designed to address objects or substances which should not otherwise have been on a factory or workplace floor, like the new polish in McGhee; the dust in Bassie; the lunchbox in Burgess; and the wrongly-placed whiteboard in Anderson. In all these cases, something had been left somewhere where it should not have been, or in a condition it should not have been in and, in consequence, has been held to be something which triggered Regulation 12(3). That is of course the complete opposite of the jam pipe in the present case, because that pipe was part of the plant and was where it always was. To put it another way, there was nothing on the facts here which converted the permanent pipe from ‘innocuous’ to ‘offending’ (Anderson).[25]For these reasons, therefore, I consider that Judge Bartfield was not wrong in law when he concluded that the pipe was not an obstruction pursuant to the Regulations. Indeed, given his findings of fact, it seems to me that the judge was bound to reach that conclusion. For all those reasons, this appeal is dismissed.

Cited in 1 later judgment