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Liability under reg 4 PUWER can only be avoided where the accident occurred was due to unforeseeable circumstances beyond the employer's control or occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care.
26 May 2013
Court of Appeal
Longmore, McFarlane and Davis LJJ
On 11 November 2006 Mr Hide, while riding ‘Hatch a Plan', sustained serious injury at the first hurdle of a race held at Cheltenham Racecourse. After clearing the hurdle his horse stumbled and fell careering sharply and throwing Mr Hide to the ground. Mr Hide slid at speed across the ground into contact with a guard rail upright post hitting it with his left hip sustaining a fractured pelvis and a head injury. Crucially, the evidence pointed to the fall being of a very unusual type that could not be expected or reasonably foreseen.
A claim for damages was brought alleging that the post and rail were work equipment and was unsuitable for the purposes of reg 4 of PUWER in that the hurdle was too close to the railing and the post was insufficiently flexible and insufficiently padded.
Regulation 4 provides that:
'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.'
By virtue of reg 4(4)(b) suitable is taken to mean ‘suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person...'.
At first instance the claim was rejected. The court found that the railing was suitable when measured against those hazards that are reasonably foreseeable and against which the defendant could reasonably be expected to offer protection. The claimant appealed.
The Court of Appeal considered in detail the Directive from which the Regulations were derived observing that the term ‘reasonably foreseeable' does not feature in them. In light of that, for the purposes of the Regulations the term ‘reasonably foreseeable' must be construed so as to be consistent with the Directive. The Directive spoke only of liability being avoided where the accident occurred due to unforeseeable circumstances beyond the employer's control or occurrences due to exceptional events the consequences of which could not be avoided despite the exercise of all due care. Thus, concluded Longmore LJ (para 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.'
In the present case liability was made out: 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 and the defendants could not demonstrate that had either or both precautions been taken Mr Hide would inevitably have suffered the injury which he did.
The decision continues a discussion started (but never concluded) in Robb v Salamis  UKHL 56 and in bringing the Regulation in line with the Directive the Court of Appeal has imposed a stricter (small ‘s') duty upon employers than many thought to be the case. However, with the advent of s 69 of the Enterprise and Regulatory Reform Act 2013 (due to come into force 01 October 2013) any victory for purists keen to ensure that that civil EL actions are determined by reference to EU standards and duties will no doubt be short-lived.