Employer not liable for accident where Claimant’s foot was caught in a gap at the entrance to a portakabin; entrance was not unsuitable for the purposes of the Workplace Regulations.

Mr Taylor worked as a team manager at a depot occupied by Wincanton. On 7 June 2006 he was carrying two boxes of A4 paper into a portakabin which served as the warehouse office. There was a step up of 20 cms from the warehouse floor to the threshold of the doorway, which was unblocked and unmarked and a gap of 6.5 cms between the base of the portakabin and the warehouse floor. He was unable to walk through the doorway without adjusting the load so as to bring the boxes of paper in front of him, virtually obscuring the view of what was directly in front of his feet. Mr Taylor caught his foot in the gap, causing him to fall forward and suffer injury. Initially the Defendant admitted liability for this incident, although resiled from this admission within their Defence. At first instance his claim for breach of statutory duty and negligence succeeded, subject to 50% contributory negligence.

Held: Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 applied to this situation. The Court of Appeal held that the correct question to ask was whether, with the benefit of hindsight, an employer would have recognised that the gap exposed employees to a risk to their health and safety, thus rendering the entrance unsuitable. An employer would not have recognised such a risk simply from the fact that there was a gap below the threshold at the entrance into the portakabin. Accordingly the claim failed.

Comment: Whilst the Court of Appeal decided this case in December 2009, an approved copy of the judgment has only recently become available. Defendants and insurers will welcome the decision which provides useful and favourable guidance in relation to the application of Regulation 12 to workplace accidents, and confirms the approach previously adopted by the Court of Appeal in Palmer v Marks & Spencer [2001].

The Court of Appeal was clearly influenced by the relative normality of the structure in question. In giving judgment, Lord Justice Waller commented that “I have to say I am much influenced in reaching that conclusion by the fact that, if the answer were otherwise, it would seem to be unacceptable to have a gap under any threshold, never mind of a portakabin but under any step, and that is in my view not an acceptable conclusion.” This was an unfortunate accident suffered by the Claimant, but to have found the Defendant liable would have resulted in an untenable onus being placed on those in control of workplaces.