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19th March 2014

Three cheers for common sense


19th March 2014

Three cheers for common sense

A lawyer being positive?

Surely not!

For once, the Court of Appeal has agreed with an employer that where something was so obvious (the common-sense point…) that no reasonable employer need point it out to an employee, there was no need for the employer to carry out a risk assessment or to provide training.

What was so obvious?

Safely exiting a lorry via steps leading to and from the cargo area.

Mr Johnson was employed by Warburtons for four years. He normally drove an articulated lorry. On the day of his accident, he was driving a rigid lorry which he seldom drove. Having heard something topple over, he pulled over and used the side door to access the cargo area. There were two steps in the lorry coming down from the floor. The top one had a hinged flap over it which needed to be fixed vertically by a catch in order to use the stairs. It was possible to use the top of the flap as a handhold, although it was not built for that purpose. The steps were uneven vertically and quite steep, although they were deep horizontally. Mr Johnson raised and fixed the flap and went into the lorry. He came out of the lorry facing forwards using the steps, but not the handhold. He slipped off the bottom step and fell from the lorry, breaking his ankle. He sued Warburtons for damages. The County Court judge decided that they were not responsible for Mr Johnson’s injuries. He appealed.

The Court of Appeal heard evidence that Warburtons had operated 760 rigid lorries for over 20 years. Delivery drivers used the side door about 15 times a day. There had never been any accidents involving falls nor had there been any concerns about the safety of the steps. After a delivery driver had hurt his knees using two steps, some lorries had been fitted with three steps, although this did not extend to the existing fleet. Mr Johnson himself didn’t think the two steps were inherently dangerous. Further, the Health and Safety Executive had thought the steps were a good thing – they had been introduced as delivery drivers had been jumping off partially deployed tail lifts.

On the basis of the evidence, the County Court judge had found that the steps were not inherently dangerous. He also decided training was not needed because the need to take care was obvious and it was unlikely that anyone would train their employees to go up and down steps. He thought it was largely a matter of common sense. The task of negotiating the steps “…although not entirely simple, was simple enough” and a risk assessment wasn’t necessary either. The Court of Appeal could not find a reason to overturn the judge’s decision, so the appeal was dismissed.

Logically, if the need to take care is obvious, then that must be an obvious hazard which needs to be evaluated. However, that could be said about many work activities and at some point it has to become a matter of common sense and down to the employee to take responsibility for their own safety.

This case is useful for employers (and insurers) as an example of what the courts consider to be common sense i.e. obvious and will assist with effective and proportionate health and safety management.

It is always difficult to use one case and draw the inference that every other case where common sense might be an obvious defence, and if you are in any doubt about your company’s position then you should not hesitate to contact us in order that we might advise further if a health and safety review is necessary.

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