Falling between the cracks: Injury on Domestic Premises

Dealing with Employees who are injured on domestic premises (Johnson v University of Bristol Court of Appeal (Civil Division) 17th October 2017, unreported).

Whilst an unreported case, the claim of Johnson v University of Bristol, decided on the 17^th October 2017 is a useful one for all personal injury practitioners who deal with work place accidents on a day to day basis since it summarises how a Court will approach the position of employees who are injured whilst working in domestic properties.

The facts of Johnson v University of Bristol

In this matter Ms Johnson (herein referred to as the appellant), a carpenter who was injured whilst repairing a kitchen cupboard in a flat was unable to rely on the Provision and Use of Work Equipment Regulations 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992 in his claim against his employer for injuries suffered whilst repairing a kitchen in a domestic property.

By way of background, Mr Johnson had been employed by the University of Bristol (herein referred to as the respondent) as a carpenter and joiner. He had been required to attend a self-catering student flat to repair part of a kitchen unit. As he opened the door of a cupboard, it collapsed and utensils fell out. His right hand was cut and he suffered consequential problems as a result.

The appellant had argued that the respondent had breached the above regulations and the Court was duly required to consider the following two key issues when determining the claim. Firstly, could the cupboard be classed as work equipment for the means of regulation 2 (1) Provision and Use of Work Equipment Regulations 1998 and secondly, could the flat in which he was injured could be classed as a workplace for the purposes of regulation 2 Workplace (Health, Safety and Welfare) Regulations 1992.

The Court at first instance found that the kitchen unit had not been provided for a work purpose, as it was just for storage in the flat and that act of it being repaired did not make it work equipment. Therefore regulation 2 (1) Provision and Use of Work Equipment Regulations 1998 could not be engaged. It was also held that the flat could not amount to a workplace within regulation 2 Workplace (Health, Safety and Welfare) Regulations 1992 because it was a domestic premise. Therefore, the Court at first instance dismissed the claim.

 The Appeal

The appellant appealed and the Court of appeal on the basis that the Judge at first instance should have applied a wide, purposive construction of “work equipment”, “use” at work, and “work place” within the Regulations. He submitted that the respondents function was not just to provide education services, but included its role as a landlord of student accommodation, and that there was a sufficient connection between that latter function and the provision of the kitchen unit to bring it within the intended scope of the Regulations.

This seems a logical and sensible argument and the type of argument that may well need to be made for hundreds of injured employees of higher education bodies, councils and other accommodation providers a year. Sadly, for the appellant, the Court of Appeal dismissed his appeal.

The Court reflected that whilst the respondent clearly provided student accommodation as part of its function, the kitchen unit had not been equipment supplied to its workforce or equipment its workforce had to use during their employment, other than, on occasion, to repair it. The act of working on or repairing an item did not render it work equipment within the scope and meaning of regulation 2 (1) Provision and Use of Work Equipment Regulations 1998. Also, the kitchen cupboard was in private student accommodation, and was not used during work (see Spencer-Franks v Kellogg Brown & Root Ltd [2008] UKHL 46, and Smith v Northamptonshire CC [2009] UKHL 27.

Dealing with whether the kitchen in the student flat amounted to “domestic premises” and thereby excluded from amounting to a work place under regulation 2 Workplace (Health, Safety and Welfare) Regulations 1992, was a mixed question of fact and law for the Judge, and the Court of Appeal could only interfere with his decision if it contained an error of law or mistake on the facts.

The Court of Appeal held that on it could not rule that the Judge had been in error in concluding that the kitchen, as an integral part of the student flat, amounted to domestic premises. Accordingly, the claim under this part of the Workplace (Health, Safety and Welfare) Regulations 1992 had to fail.

Dangers for tradesmen?

With more and more tradesmen working in the UK and the increasing sad relevance of dilapidated and often over crowded housing, it seems likely that more cases in the vein of Johnson could well emerge. Sadly, the law appears to be angled against such claims at present, and it is almost certain that unless there are highly favourable facts before a Court, such claims will fail.

The interesting point in my view is going to come when an employee is injured in carrying out emergency repairs in a domestic premises since whilst injury is more foreseeable, an employer may not be able to carry out a risk assessment due to the emergencies nature, and the employee would be compelled to act quickly to preserve the property and work in potentially dangerous conditions. Therefore, how could the premises be said to be either a workplace, or the items being repaired work equipment in light of Johnson?

In considering this, I recall the case of Dugmore v Swansea NHS Trust [2003] P.I.Q.R. P220, CA where whilst dealing with hazardous substances, Hale LJ reiterated that the primary duty of the employer was to prevent any exposure to risk, unless this was not reasonably practicable. Where prevention was not reasonably practicable, the secondary duty was adequately to control the exposure to such risks. In deciding whether the employer had complied with the primary duty, it was not necessary in a straightforward case to assess foreseeability of the degree of risk.  She held at paragraph 230 that;

“To import into the defence of reasonable practicability the same approach to foreseeability of risk as is contained in the common law of negligence would be to reduce the absolute duty to something much closer to the common law, albeit with a different burden of proof.”

Further, looking into the Judicial approach as thee balancing of risk and duty, it is sensible to consider Lord Goff in Austin Rover Group Ltd v HM’s Inspector of Factories [1990] 1 A.C. 619, which whilst an old case, does provide useful guidance, namely that;

“… for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play foreseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.”

Whilst we no longer have strict liability for such acts due to the Enterprise and Regulatory Reform Act 2013, sadly for Claimants, we appear to be moving, or have even arrived at the regime envisaged by Hale LJ in Dugmore.

Conclusion

In many respects, looking at the facts of Johnson, I can’t help but hold the opinion that we are approaching a situation where the abdication of responsibly by employers to employees who are injured in the line of work is being unintentionally encouraged by the legislature.

Whilst all cases are fought and decided “on their facts”, if the legal frame work to be applied results in situations where employers can send employees out to perform tasks required by their contract of employment, but can avoid liability for injury due to where the required works are performed, in my opinion that unjust, and contrary to the intention of any legislation designed to protect employees.

Whilst I accept that it may be difficult for an employer to envisage all risks to an employee, employees who are injured at work deserve proper and full recompense. In short I feel that Mr Johnson somewhat fell between the cracks that the law of negligence and the regulations have created and whilst I feel sorry for him, I don’t believe he will be the last disappointed Claimant in similar circumstances.

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