With the Government’s amendment to the Enterprise Bill 2013 due to abolish strict liability in employers’ claims, it seems that certain Courts were ahead of the pack in seeking to mitigate what they saw as the potentially unfair consequence of construing the Regulations too strictly against quasi-employers.
Hide v Steeplechase
The case of Hide v Steeplechase Co Ltd (2013) 163(7562) NLJ 16CA highlighted the very narrow interpretation that the Court of Appeal is likely to impose on the forthcoming changes in the Bill.
Mr Hide was a professional jockey who was injured when he fell from his horse during a Steeplechase at Cheltenham race course - a course Judge Harris, sitting in the Oxford County Court described as “the best in England”.
Mr Hide came off his mount and hit the ground; he then collided with the upright guard rail posts. The Judge described this as a very unusual type of fall, and no-one suggested he was wrong in this.
Mr Hide brought a personal injury claim and did so under the auspices of PUWER reg 4. It must be highly doubtful that when the Regulations were drafted; it was envisaged that the uprights of a guardrail at a race-course would be treated as being “work equipment”. Mr Hide claimed they were “unsuitable” in that the hurdle (fence) was too close to the rail (or vice-versa) and the upright had inadequate padding.
It seems that the uprights were each padded for a number of yards past each hurdle at a depth of 2-3cm. The hurdle itself was described at trial as being “fairly modest”.
The Trial Judge dismissed the claim on the basis that the hurdle and the guard-rail were suitable equipment. There does not appear to have been any argument that either item was not work equipment.
Evidence was given at trial as to the requirements of the Jockey Club and the BHA and the Judge was satisfied there was no breach by the course owners of any of the stipulated requirements.
Reasonable foresight of harm
In considering whether the item of equipment was “suitable” (per reg 4) the Judge determined that that requirement for suitability ought to be considered within the context of reasonable foresight of harm. The Judge determined that injury was not reasonably foreseeable and therefore the items concerned were suitable.
The Judge referred in pejorative terms to the “remorseless march” of health and safety legislation; and it is tempting to see his dismissal of the claim as an attempt to put a brake on that march.
The Court of Appeal noted that the concept of reasonable foresight was imported into reg 4 but was absent from the Directive which the PUWER transposed into English Law. The CA held that the term “reasonably foreseeable” therefore was to be construed in the context of “the limited concept of foreseeability envisaged by the Directive”. This is a finding which may have significant implications for judicial interpretation of clause 62 of the new Enterprise and Regulatory Reform Bill
Who carried the burden?
The CA said that the burden was on the defendant (employer) to show that the relevant accident was due to unforeseeable circumstances beyond their control, or to exceptional events which could not be avoided, even with the exercise of proper care.
Consequently, all Mr Hide needed to do was to show that he was injured as a result of contact with a piece of equipment was or may be unsuitable. The burden then moved to the course owners to show that it was due to unforeseeable circumstances beyond their control, or to exceptional events.
It was therefore not sufficient merely to find that the way Mr Hide was injured was very unusual and/or that the defendant had abided by the BHA/Jockey Club requirements and could not be expected to do more. The Judge was therefore wrong to impart the test of reasonable foreseeability as understood under “classic common law”.
A taste of decisions to come?
The CA noted that this was not a claim in negligence but a claim brought under reg 4 which imposed a higher standard. It was therefore wrong to view the Regulations as no more favourable to the claimant than the common law position.
The decision of HHJ Harris was overturned and judgement given for Mr Hide in an agreed sum.
It remains to be seen how the new Enterprise Bill will affect claims of this nature. It is plain that the Court of Appeal will construe strictly any attempt to import reasonable foresight of harm into what were hitherto stringent regulations.
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