Whilst the caselaw suggests that a defence of ‘reasonable practicability’ in an employers liability claim will often be difficult for a Defendant to make out, a recent High Court decision is a reminder that such a defence can succeed in appropriate circumstances.
The case of Burrows v Northumbrian Water Ltd  EWHC 3305 (QB) concerned a claim for personal injuries. The Claimant, Mr. Burrows, slipped on black ice whilst using a reservoir access road in the course of his employment with the Defendant, Northumbrian Water. The claim failed at trial in the County Court and the matter came before the High Court on appeal. Whilst a number of issues were raised on the appeal, the one that concerns this article is whether the trial Judge had been correct in dismissing a claim for breach of Regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations on the basis that the defence of ‘reasonable practicability’ had been made out.
Regulation 12(3) provides:
“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.”
It was common ground that the access road was a ‘traffic route’ and that the black ice was a ‘substance which might cause a person to slip, trip or fall’. In order to evade liability, therefore, the burden fell upon the Defendant employer to show that it was not ‘reasonably practicable’ to ensure there was no ice on the access road. In that regard the County Court Judge noted a number of matters:
- Whilst the patch of ice upon which the Claimant fell covered only a small area, the Defendant was not to know in advance where on the road someone might seek to place their feet. Accordingly, it had to be reasonably practicable to ensure the entire access road was free from ice.
- The road itself was in a remote location and used infrequently.
- The only way the Defendant could have ensured the road was always free of ice would have been to have visited, and gritted if necessary, on a daily basis.
- That of itself would have put the employees charged with gritting at risk, in relation to a road which was otherwise little used. In other words, there was no ‘safety gain’ in such an approach.
The High Court agreed with the trial Judge’s reasoning and dismissed the appeal.
The latter bullet point, as to the lack of a ‘safety gain’ in suggested ‘reasonably practicable’ steps, may be of assistance to Defendant employers in seeking to make out the defence in other cases.
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