Hide v Steeplechase Co (Cheltenham) Limited and Others (2013) EWCA Civ 545 (Longmore, McFarlane and Davis LJJ)
'The question is whether the judge was correct to use the concept of reasonable foreseeability in the classic common law manner when assessing liability under the regulations.' These are the words in the lead judgment of Lord Justice Longmore in a case involving an injured jockey who fell while jumping a fence and struck one of the upright posts to the guard rail that ran adjacent to the fence at Cheltenham racecourse.
The case is important in its interpretation of regulation 4 of the Provision and Use of Work Equipment Regulations 1998 (the regulations), but also in light of the publication of the Enterprise Bill seeking to remove statutory breach from work-related accidents.
The claimant's horse leapt over the hurdle but landed badly and slewed off to the side. He fell and struck one of the padded PVC upright posts. It was his case that the hurdle was too close to the perimeter railing, the post was too unyielding and/or insufficiently padded.
At first instance the judge held that 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 and, as the purpose of a racing obstacle is to provide 'a test of nerve and skill for horse and rider, and massive pleasure for the spectator', he did not feel that there was a reasonably foreseeable risk of injury in this instance.
His lordship, in giving the lead judgment, identified that the concept of reasonable foresight, while present in our domestic regulations, is absent from the Framework Directive (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC).
The issue of reasonable foreseeability had been considered in passing by the House of Lords in Robb v Salamis (2007) ICR 175 but they had not had cause to address the issue specifically in that case.
His lordship held that there were categories of occurrence in respect of which a defendant may seek to excuse his liability, namely: (i) Occurrences due to unforeseeable circumstances beyond the employer's control; or (ii) Occurrences due to exceptional events, the consequences of which could not be avoided despite the exercise of all due care.
It is only in the context of these two situations that the concept of foreseeability is introduced into the regulations. It was held that it is for the defendant to prove that any relevant accident was due to either of those circumstances.
Their lordships found for the claimant. The padding of the uprights of the guard rail could have been thicker; and the hurdle could have been placed at a greater distance from the guard rail. Incidentally, they held that the guard rail and the supporting upright were being used as 'work equipment'.
Within the context of the Enterprise and Regulatory Reform Bill, it is important to note that this is a case that would likely fail if the opportunity to cite the regulations is removed. His lordship found that, at first instance, the judge's view that the defendants had abided by all the requirements of the British Horseracing Authority and could not be expected to do more, may well have provided sufficient excuse for the defendant at common law but 'the directives and, therefore, the regulations, exist in a world different from the common law'. This was an accident that, while not likely, was possible and, in that sense, foreseeable. There was, in this instance, no occurrence which was either unforeseeable or exceptional to introduce the common law standard of reasonable foreseeability into the regulations which would 'limit the broad protection which the regulations are intended to provide'.
The facts of this case were relatively simple. The case is doubtless one that the government and some elements of the judiciary, adopting a blinkered Jackson-esque-type vision of personal injury litigation, would, in the event that the claimant had suffered a less serious injury, conclude that the case should be 'fast-tracked' through the process, incurring minimal costs and with little inconvenience to the court system.
Lord Justice Davis, however, commenced his judgment with the sentence: 'I have not found this an easy case'. A jockey seeks to jump over a fence, his horse falls and he strikes a barrier. The facts are simple. The regulations and the European directive are clear.
The difficulty in the case arose because the judge, at first instance, conflated common law principles with the stricter, but intellectually clear requirements of the regulations. He voiced a cliched reference to the 'remorseless march' of health and safety legislation. It seems that the approach of the government to this problem of protecting the worker is to retreat to the blunt and arbitrary common law and to abandon the principle properly set out by Lord Rogers in Robb v Salamis that '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'. Surely that is a principle with which a civilised society ought to be in agreement?
Simon Allenis national practice group leader of the personal injury department at Slater & Gordon