Legal Update by Bethan Davies (Pupil).
The Claimant sustained serious head injuries when he fell from the back of a vehicle when delivering goods in the course of his employment with the Defendant. The tail lift on the vehicle had been lowered by the Claimant. Shortly afterwards he had either stepped backwards or lost his footing, falling approximately one metre to the ground.
A pre-accident risk assessment had identified working at height and the operation of the tail lift as hazards, both of which were associated with a “high risk” of fall injuries. It was the Claimant’s case that the Defendant was in breach of the regulations 4 and 6 of the Work at Height Regulations 2005, and contended that measures should have been in place to ensure that the tail lift was always raised if a worker was in the back of the lorry.
The trial was heard by HHJ Simpkiss who dismissed the claim and gave judgment in favour of the Defendant, concluding that there were no breaches of the Regulations and that it would not have been reasonably practicable for the Defendant to raise the tail lift when the back of the vehicle was occupied. Instead of considering whether the measure proposed was, both in time and expense, grossly disproportionate, the Judge performed a simple balancing exercise, concluding that the measure was not ‘reasonably practicable’, despite the same being a measure adopted by the Defendant following from the accident:
"In my judgment, it would not have been proportionate to instruct employees carrying out delivery operations prior to the accident to raise the tail lift if someone was inside the van. There had been no incidents identifying the risk and the assessment identified the risk as 'low' if the controls were in place. The Claimant was waiting in the lorry for the pallets to return and if it had been raised, would have had to lower it again for that purpose. He was not carrying out any activity and could be expected to be aware of the edge of the lorry, next to which he was standing and which he had been looking at only moments before when the tail lift was lowered…
I am therefore satisfied that there was no breach of duty under this head as it has not been proved that this step should have been taken to reduce risk, and, in the circumstances, it has been proved not reasonably practicable to take this measure, having regard to the degree of risk, proportionality and practicality." [53 – 54]
The Claimant appealed the decision on the basis of three main legal grounds:
Firstly, that Judge Simpkiss wrongly treated the test of reasonable practicability as involving a simple balancing exercise, rather than a balancing exercise in which a measure is only not reasonably practicable if there is gross disproportion between the quantum of risk and the sacrifice involved in taking that measure.
Secondly, the Judge wrongly treated the burden of proof for establishing that all reasonably practical steps had been taken as resting, in part or at times, on the Claimant.
Thirdly, the learned Judge failed to apply the Provision and Use of Work Equipment Regulations 1998.
Judgment on Appeal: Martin Spencer J
Safe System of Work
As to the raising of the tail lift, Martin Spencer J commented that it was “perhaps surprising that the learned Judge found that it would not have been reasonably practicable for the Defendant to have taken this measure pre-accident, when they had done so post-accident.” 
The Court found that the judge at first instance had erred in making the factual finding that the risk of falling from the bed was low, in making such a determination he had overlooked, or misunderstood, the failure of the Defendant’s risk assessments to adequately address the risk. 
As to the reasonableness of the safety measure, at first instance the judge should have asked whether the measure would have been “grossly disproportionate”, rather than merely asking on the balance whether the measure would have been proportionate. 
Martin Spencer J provided a useful overview of the law in relation to the test of reasonable practicability, tracing the relevant jurisprudence from Lord Atkin’s “so disproportionate” (Coltness Iron Company Ltd v Sharp  AC 90), and Asquith LJ’s “gross disproportion” (Edwards v National Coal Board  1 KB 704) to Lord Reid’s justification that, “as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable” (Marshall v Gotham Co Ltd  AC 360).
The Court enunciated the test as one which starts by asking whether the measure in question is practicable at all. If this initial question is answered in the negative, the exercise ends here. However, if the measure is practicable then the court goes on to consider whether it can be rightfully said to be "reasonably" practicable. As to the meaning of “reasonable” in this context, the Court is to ask:
“whether the employer can show that the cost and difficulty of the steps so substantially outweigh the quantum of risk involved as not to be reasonably practicable. A mere balancing act, which the learned Judge considered is all that is required by the court, does not in my judgment, encompass or address the concept of, "reasonable practicability". Otherwise, references to this being an, "onerous" duty on the Defendant would be substantially watered down.” 
The parties agreed that the Judge should assess contributory negligence rather than remitting the issue to the trial judge, who had made no findings in that regard.
“On the one hand, given the relative maturity, experience and knowledge of the Claimant and the obviousness of the danger together with the fact that no such accident had ever occurred previously in the Defendant’s experience, I can see the strength of the Defendant’s argument that contributory negligence should be assessed at greater than 50%. The Claimant himself had lowered the tail lift only a short time earlier, and so was aware that it was in lowered position and should have been aware that there was therefore a drop from the back of the van. However, I can also see the strength of the Claimant’s argument that the breach of a Regulation which is intended to protect an employee’s safety and, indeed, is intended to protect against an employee’s lack of care for his or her own safety should mean that the majority of the blame should fall on the employer.” 
Having reviewed the examples of contributory negligence set out in Chapter 4 of Charlesworth and Percy on Negligence (14th edition), on the basis of the specific facts of the case, contributory negligence was assessed at 50%.
To any practitioner familiar with the judgment at first instance, the Claimant’s success on appeal is not a surprise. The judgment on appeal provides a helpful explanation of the law pertaining to the “reasonably practicable” test and reaffirms the position that proving a measure to be unreasonable is an “onerous duty” on Defendants. The test does “not provide the employer with an easy escape avenue but rather a "long stop" defence in very limited circumstances.” 
In the context of a judgment which on the whole reaffirms established law, the most striking feature is the assessment of contributory negligence. The case falls within the limited number where a finding of contributory negligence of 50% was made, evidencing that as far as the Courts are concerned, there is no inconsistency between a breach of statutory duty and a finding of substantial contributory negligence. It appears clear from Martin Spencer J’s summary of the parties’ positions in paragraph 51 that a finding of contributory negligence of more than 50% could be countenanced in the context of an employers’ liability claim.