AMMAH VS KUEHNE & MAGAN LIMITED (COURT OF APPEAL 22 JANUARY 2009)
The claimant was employed by the defendants as a Warehouse Operative. The warehouse racking was arranged on three levels. While the majority of items were located at the lowest level, some items that were required less frequently were stored on the higher shelves. Equipment had been provided to enable staff to reach the higher shelves in the form of portable steps, a man riser and forklift trucks.
The claimant had attempted to reach an item on the second shelf, but it was just out of his grasp. Rather than fetching the equipment provided, he instead stood on an upturned plastic box which he found in the aisle. The box moved and he fell fracturing his ankle.
The claimant argued that the use of boxes was common and condoned, and that defendants should have warned him not to use the boxes in this way. The defendants admitted that standing on an upturned box was dangerous, and relied on the induction training provided to the claimant not to do so, and the availability of alternative and approved methods of access.
At first instance, the Court found that there was no liability on the defendant. The task had been risk assessed and the claimant had accepted he had been trained to summon the man riser or forklift truck when necessary. The Judge also found that staff standing on upturned boxes occurred only very infrequently and that it was impossible for a defendant to invigilate all of its employees all of the time.
The Court of Appeal was satisfied that the defendant had complied with its duties to ensure a safe system of work. Not only was suitable equipment available, but employees have been instructed to use the equipment and not to stand on boxes. The risks associated with standing on a box still required an adequate warning, but such instruction had been given. By choosing to stand on a box, the claimant had taken a risk for which only he, and not his employer, was responsible.
The Court took a commonsense approach by accepting evidence of the employers safe system of work and adequate training based predominantly on oral witness evidence, rather than documentation.
The Court also used this case as a reminder that employers remain under a duty to warn against even seemingly obvious risks, and that duty is not reduced simply because the danger is one that might arise only very rarely.