Hide v The Steeplechase Company (Cheltenham) Ltd and others [22.05.13]

Defendant breached the Provision and Use of Work Equipment Regulations 1998 by placing railings after a hurdle fence; Court of Appeal considers issue of reasonable foreseeability.

Implications

This may appear to be a harsh decision for this and other potential defendants. Evidence was given that the Senior Inspector of Courses for the British Horseracing Authority spent three hours at the course at the beginning of the season.

He also carried out a further inspection the day before the accident. However, despite this, it would appear that not enough had been done.

The implications of this decision go beyond racecourses and other sporting venues and potentially impact on any claim involving the “six pack” regulations. In his judgment, Lord Justice Longmore commented:

“The European Directives and therefore the Regulations exist in a world different from the common law.”

It remains to be seen what impact s.69 Enterprise and Regulatory Reform Act 2013, which comes into force on 1 October 2013, will have on future claims. This will only apply to breaches that occur after the commencement date. It will effectively remove civil liability on the part of employers for breach of the regulations.

In this case the Court of Appeal was satisfied that the Defendant had not been negligent in the design and layout of the railing and was not in breach of its duty to take "reasonable care" for the safety of visitors such as the Claimant under the Occupiers’ Liability Act. It was only liable because it was found to be in breach of the exacting standards imposed by the Regulations, when properly interpreted by reference to the Framework Directive. It therefore seems highly likely that, had the alleged breach occurred after 1 October 2013, the claim would have failed.

Background

Philip Hide, a former professional jockey, claimed damages following injuries he sustained as a result of a fall during a hurdle race at Cheltenham racecourse in November 2006. His horse jumped the first hurdle of the race towards the outside of the fence. On landing, the horse stumbled and fell sharply to the right, ejecting Mr Hide from the saddle. The nature of the fall was such that Mr Hide hit a railing which was positioned on the outside perimeter of the track, principally to stop loose horses running off the racetrack.

Mr Hide argued that the hurdle was placed too close to the perimeter railing, which was too solid and insufficiently padded. He sought damages against the management of the racecourse. The Second Defendant, Jockey Club Racecourses Ltd, was the correct defendant to the claim.

Regulation 4(1) of the the Provision and Use of Work Equipment Regulations 1988 requires work equipment to be “suitable for the purpose for which it is used or provided.”

At first instance, His Honour Judge Harris was satisfied that the hurdle and rail were work equipment. Regulation 4(3) defines “suitable” as meaning “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.” The Judge was satisfied that the barrier and rail were indeed suitable, adopting the common law interpretation of reasonable foreseeability. The claim was dismissed.

Decision

The Court of Appeal upheld the Claimant’s appeal:

  • The Judge had been incorrect to import into Regulation 4 PUWER the common law understanding of “reasonable foreseeability” and then dismiss the claim on this basis.
  • The Regulations stand apart from the common law and must be construed so as to be consistent with the European Directives they were designed to implement.
  • The Directives do not use the phrase “reasonably foreseeable”. The so-called Framework Directive does, however, allow member states to provide for the exclusion or limitation of liability, when drafting their regulations, where the occurrence was due to unusual or unforeseeable circumstances beyond the employer's control, or was due to exceptional events the consequences of which could not be avoided despite the exercise of all due care. 
  • “Reasonable foreseeability” in regulation 4(3) was to be interpreted in that much narrower sense.
  • 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 a 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. The Defendant had not done so in this case and so the equipment was not “suitable” . The Defendant was therefore in breach of the Regulation and so liable to the Claimant.