WRITTEN SUBMISSIONS: STATEMENTS OF ISSUES; PLEADING AND PROOF

The decision of Mr Justice Walker in Burrows -v- Northumbrian Walker Ltd [2014] EWHC 3305(QB) considers the need for clarity in written submission and for the issues the judge is asked to determine to be clearly defined. It also considers whether a judge can properly consider the “reasonably practicable” defence in circumstances where that defence is not properly pleaded.

THE FACTS

The claimant was injured when falling on ice having got out of a company vehicle and walked along an access road. He failed at trial but appealed on the ground that the judge failed to consider properly Regulation 12 of the Workplace Regulations.

THE CLARITY OF THE ARGUMENT

The judge was critical of the manner in which the case had been presented.

A2. The issues below, and the judgment

1. This was a case where the complexity of actual or potential issues and sub-issues plainly called for steps to be taken by the parties to agree a list of issues. It is unfortunate that in the present case no agreed list of issues was ever prepared. The result was that the written closing submissions provided to the judge lacked a clear focus.
2. The problems arising from the lack of any agreed list of issues persisted right through to the start of the hearing of the appeal. At an early stage in the argument on the appeal I concluded that I needed a document giving an account of relevant issues as they were at the start of the trial and of how they changed as matters developed prior to the judgment. The hearing was adjourned so that such a document could be prepared and agreed by the legal teams on each side.
3. Shortly after midday I was supplied with the document I had sought. It was drafted at a high level of generality. What emerged was that the position prior to judgment was said to have included the following:

(1) it had been agreed that the Workplace Regulations applied and that the access road was a traffic route within the meaning of those regulations;(2) as regards regulation 12(3) of the Workplace Regulations, prior to judgment there were disputes among other things as to a defence which I shall call “the reasonable practicability defence”;

(3) contentions on behalf of Mr Burrows in relation to the reasonable practicability defence included a contention that the defence could not be raised “unless it was plainly and self evidently impossible in practical terms to take the steps in question”;

(4) regulation 12(1) of the Workplace Regulations “was introduced [as having been broken, and thus giving rise to a further sub-claim] on the basis that if [Northumbrian Water] was permitted to address the court on the basis of the [reasonable practicability] defence afforded under regulation 12(3), [Mr Burrows] would seek to introduce regulation 12(1)”;

(5) a dispute also existed as to whether regulation 5(1) of the Workplace Regulations applied “to a case of snow and ice on the ground due to its transitory quality”;

(6) it was agreed that if regulation 5(1) applied then “liability was strict”.

1. The document added that Northumbrian Water disputed the applicability of regulation 12(1) for the same reasons as it disputed the applicability of regulation 5(1). In oral submissions on the appeal there was no contention on behalf of Mr Burrows that regulation 12(1) would enable him to succeed if his claim under regulation 5(1) failed. That being so, I say no more about regulation 12(1).
2. Even with the belated benefit of this document I did not find it easy to gain a clear understanding of what factual and legal issues arose for consideration by the judge and where they fitted in to the claims and sub-claims.
3. It seems to me to be apparent from the judgment that similar problems confronted the judge:

(1) Her judgment dealt with introductory matters in paragraphs 1 to 4, including an observation in paragraph 4 that the burden of establishing liability rested on Mr Burrows.(2) Paragraphs 5 to 18 were headed “The Evidence” and dealt with a number of matters:

(a) Paragraphs 5 to 9 described the evidence given by Mr Burrows.

(b) Paragraphs 10 and 11 noted that he appeared to change his evidence from an account in which he walked down the near side of his vehicle to an account in which he walked down the driver’s side, and gave reasons for preferring the first account.

(c) Paragraph 11 also made a finding that “Mr Burrows did not access his PDA [Personal Digital Assistant] as he should have done” and recorded evidence by his manager, Mr Bates, that “all operatives should access the risk assessment before doing a task”.

(d) Paragraph 12 described what happened when Mr Bates and Mr Nevison came to the rescue of Mr Burrows.

(e) Paragraphs 13 to 17 gave an account of aspects of oral evidence at trial, and documentary evidence supplied after trial, in relation to the vehicle used by Mr Burrows and its tyres.

(f) Paragraph 18 made a finding that (contrary to the evidence advanced on behalf of Mr Burrows) the vehicle had not on any previous occasion been fitted with off-road tyres.

(3) Paragraphs 19 to 43 were headed “My findings in respect of the evidence”. Paragraphs 19 to 29 were concerned with the black ice claim, making findings of fact in that regard (see section B below) and giving reasons for concluding that “this was an unfortunate accident which was not due to fault on the part of the employer.” Paragraphs 30 to 41 gave reasons for acquitting Northumbrian Water of fault in relation to the tyres claim. Paragraphs 42 and 43 gave reasons for acquitting Northumbrian Water of fault in relation to an unpleaded claim advanced in oral evidence that the vehicle was in some other way unfit for purpose.

(4) Paragraphs 44 to 53 were headed “My Findings in respect of the applicability of the Regulations”. As to those paragraphs:

(a) Paragraphs 44 to 51 are discussed in section C below. They were confined to a consideration of the Workplace Regulations. The judgment did not expressly identify which particular regulation or regulations were being considered. The judge must, however, at least have had regulation 12(3) in mind, as she expressly made reference to the reasonable practicability defence.

(b) Paragraphs 52 and 53 were the two concluding paragraphs of the judgment. They stated:

52. On the evidence before me I do not accept that it is [Northumbrian Water’s] fault that [Mr Burrows] fell over and sustained injury. Nor do I accept that [Northumbrian Water] is in breach of [its] statutory duty nor breached [its] common law duty …

53. For the reasons set out above this claim is dismissed. …

1. It is apparent from these two concluding paragraphs that the judge believed she had dealt with all the ways in which Mr Burrows advanced his claim. However she made no express reference to his sub-claim under regulation 5(1) of the Workplace Regulations. Nor in her judgment does she discuss the issue on regulation 5(1) as set out in the document that I requested, or any other issue specifically concerned with regulation 5(1).
2. I am sure that if a document containing an agreed list of issues had been prepared by the parties then the judge would have dealt expressly with regulation 5(1) in her judgment. Enabling the judge to have a checklist of this kind is an important benefit of such a list. But that is not the main reason why an agreed list of issues was needed. It was needed so as to enable orderly preparation for trial, presentation at trial, and consideration at and if necessary after trial, of the different claims and sub-claims, and of the particular factual and legal issues to be decided when determining the outcome. The written submissions and skeleton arguments provided to the judge, along with those provided to me prior to the start of the appeal hearing, lacked the orderly consideration which the court is entitled to expect.

PLEADING THE DEFENCE OF REASONABLE PRACTICABILITY

The judge then discussed the claimant’s complaint that there had been no notice that the defendant was going to rely upon the defence of reasonable practicability set out in paragraph 12(3) of the Regulations.

C2. Absence of notice and opportunity to respond

1. Grounds 1 to 3 complain in various respects that Mr Burrows had no notice that Northumbrian Water would seek to advance the reasonable practicability defence, and that he had no adequate opportunity to deal with it.
2. The judgment did not identify specific complaints in this regard. To the extent that there had been such complaints, they were dealt with compendiously in paragraph 44 of the judgment as follows:

… in my judgment the suggestion that the employer should have assessed the risk from snow and ice and kept the whole of the access road clear from all such obstruction [effectively at all times] is plainly and self-evidently impossible in practical terms. It is correct that the Defendants have not pleaded “reasonable practicability” but it is in my judgment an inappropriate task which is being suggested. I consider that I can make this assessment myself on the evidence to hand.

1. This paragraph in the judgment must be seen in the context of the way in which the complaints in question were dealt with in the course of the proceedings. In his oral submissions in support of the appeal Mr Roberts explained to me that before the judge he had conceded that “there are always cases where at the extreme evidence is not needed”. To his mind the concession was one which had no relevance, for in this case “it was patently possible to do something about it.” For convenience I shall refer to the things which Mr Roberts submitted were “patently possible” as “the alleged possibilities”.
2. As will be seen in section C3 below, the judge had no doubt whatever that the alleged possibilities were not reasonably practicable. Whatever may have been the position as regards the physical possibility of putting them in place, her view was that they were in her judgment “wholly unworkable”. It is in this sense that the judgment comments in certain passages that Mr Burrows’s case was not “practical”.
3. Prior to learning how the matter had developed I was perplexed by the judge’s statement in paragraph 44 that Northumbrian Water had not pleaded reasonable practicability. Paragraph 7.14 of the Defence filed by Northumbrian Water on 13 December 2012 stated:

7.14 The Defendant will aver that despite the fact the reservoir was attended by employees of the Defendant on a regular basis, the Defendant had received no complaints concerning the access way being a danger. In any event, the Defendant had taken all reasonably practicable steps to reduce the risk of injury in snowy and icy conditions by carrying out a risk assessment identifying remedial measures, providing all employees with suitable and sufficient personal protective equipment and installing a salt bin in close proximity to the access way. (my emphasis)

1. To my mind paragraph 7.14 asserted that it was not reasonably practicable for Northumbrian Water to do more than what it said it had done. It was not necessary for that purpose to say expressly that it was not reasonably practicable to have removed the ice in question prior to the accident. On a fair reading of paragraph 7.14 it seemed to me to be saying that Northumbrian Water had done all that was reasonably practicable by taking steps short of removing the ice, and this necessarily involved saying that removing the ice was not reasonably practicable.
2. However the point which was taken on behalf of Mr Burrows in this regard was that this paragraph was not a pleading “in relation to the steps which could and should have been taken to remove the snow and ice.” For my part I would not agree. For the reasons I have given, paragraph 7.14 to my mind asserted that removing the ice was not reasonably practicable.
3. Nevertheless it is right to say that the defence did not in relation to alleged possibilities make specific assertions that they were not reasonably practicable. It is in that sense that both Northumbrian Water and the judge proceeded on the footing that Northumbrian Water had not pleaded reasonable practicability. In that context it seems to me that in the the last two sentences of paragraph 44 the judge was saying that while Northumbrian Water had not pleaded “reasonable practicability” in this sense it was nonetheless permissible to conclude that a defence of reasonable practicability had been made good. There were two circumstances relied upon by the judge for taking this course. The first was that the task being suggested by Mr Burrows was an inappropriate one. The second was that the assessment could be made on the basis of the evidence to hand.
4. As regards the complaint of lack of notice, in ordinary circumstances the validity a complaint of this kind turns on whether there was such an absence of notice as would cause prejudice to the complaining party. This has been the consistent approach in modern litigation: see, for example, the observations of May LJ at paragraph 14 of his judgment in Pratt v Intermet Refractories Ltd (Court of Appeal, 21 January 2000, unreported). I have no doubt that this is what the judge had in mind, and that the two circumstances she identified constituted her reasons for thinking that there was no prejudice to Mr Burrows in taking the course which she took.
5. In these circumstances the fairness or otherwise of the judge’s approach turns on the question whether the course which she took involved prejudice to Mr Burrows. In order to answer that question it is necessary to examine the factual basis for the judge’s conclusions on reasonable practicability.

THE JUDGE’S FINDINGS ON REASONABLE PRACTICABILITY

The appellate judge found that there were factual grounds upon which it was open to the trial judge to find that the defendant had taken all reasonably practicable steps.

1. I have dealt in section C2 above with the question as to what Northumbrian Water had to plead. Turning to the burden of proof, as noted in section C1 above it is common ground that Northumbrian Water bore the burden of establishing the reasonable practicability defence. Regrettably the judge made no mention of this in her judgment. She needed to do so because in paragraph 4 she had made an observation that the burden of establishing liability rested on Mr Burrows, and that observation needed qualification in relation to liability under regulation 12(3).
2. This omission, however, is immaterial. As is plain from section C3.2 above, the judge’s findings relevant to reasonable practicability did not turn on the burden of proof. She had no doubt whatever that the reasonable practicability defence was made good.

THE ALTERNATIVE ARGUMENT UNDER REGULATION 5

The claimant complained that the judge had failed to consider an alternative argument under Regulation 5 of the Regulations. The appellate judge considered this issue afresh and determined that there was no breach . The argument under Regulation 5 was bound to fail.

COMMENTARY

• Most of the recorded complaints in relation to written submissions are about their being over-long.  Here we have a complaint of lack of clarity.
• A Schedule of Issues would clearly have helped at trial and upon appeal.
• It is still prudent for a defendant to plead, specifically, the defence of reasonable practicability.