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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hide v The Steeplechase Company (Cheltenham) Ltd & Ors [2013] EWCA Civ 545 (22 May 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/545.html Cite as: [2013] WLR(D) 195, [2014] ICR 326, [2014] 1 All ER 405, [2013] LLR 697, [2013] PIQR P22, [2013] EWCA Civ 545 |
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ON APPEAL FROM THE OXFORD COUNTY COURT
HIS HONOUR JUDGE HARRIS
Strand, London, WC2A 2LL |
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B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
and
THE RIGHT HONOURABLE LORD JUSTICE DAVIS
____________________
HIDE |
Appellant |
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- and - |
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THE STEEPLECHASE COMPANY (Cheltenham) LIMITED & ORS |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Peter Cowan (instructed by Messrs DWF) for the Respondents
____________________
Crown Copyright ©
Lord Justice Longmore:
Introduction
Rules governing horse racing
"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.
"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."
"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"."
The Judge's conclusions
"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 Smith supra 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."
"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
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."
"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; "
"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."
"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; "
"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."
"suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person"
"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.
"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".
"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."
As applied to this case
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.
"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.
Conclusion
Lord Justice McFarlane:
Lord Justice Davis:
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.
"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.