A stricter test of foreseeability

We review the test many employers and their insurers now have to square up to, and adopt within their risk assessments, with a focus on prevention rather than review, following an accident.

In Caparo Industries v Dickman (1990) the House of Lords set out a three stage test for the duty of care in negligence looking at, firstly, the relationship between the injured and the wrongdoer (usually referred to as proximity), secondly how foreseeable was the event that caused injury and thirdly the issue of fairness and reasonableness. In this article we look at the issue of foreseeability and how case law suggests the concept is approached in relation to the Provision and Use of Worksite Equipment Regulations 1998 (PUWER) and in particular the decision in Hide v Steeplechase Company Ltd (2013) (see the full decision here).

Factual background

A horse stumbled during a steeplechase and collided with the racetrack barrier injuring the jockey. He maintained that the hurdle his horse had just jumped over was too close to the barrier, which was also inadequately padded. In essence, the course equipment and obstacles were unsuitable, in breach of regulation 4(1) of PUWER.

At trial the claim was dismissed, the judge finding that the event resulting in injury in the particular circumstances would not have been expected or reasonably foreseen, especially as no evidence was led by the jockey that similar accidents had occurred to others. The judge held that the definition of "suitable" in the regulations was "suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person" (as per regulation 4(4)) and said that “reasonable foreseeability” was a well understood phrase and that the accident had not been reasonably foreseeable.

The Court of Appeal disagreed: the phrase "reasonably foreseeable" was not to be found in the European directives which gave rise to the regulations and referred in particular to the Framework Directive which states:

"This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care."

Applying this interpretation of the phrase “reasonably foreseeable” under the regulations the court noted a clear emphasis on an employer’s ability to demonstrate that accidents could not have been prevented by them. Rejecting the defendants’ primary argument that regulation 4 was no more favourable to a claimant than the common law, the court said that such an interpretation of the regulation would be inconsistent with the broad protection the regulations were intended to provide.

It is notable that the incident resulting in injury does not have to be merely “unusual and unforeseeable” or “exceptional”, but also has to be “beyond the employers' control” or such that it could not have been avoided despite “all due care”. The Court of Appeal did not consider that the peculiar facts of the accident under scrutiny were particularly unusual. They also noted that some padding had been applied to the railing, suggesting that an incident of the type that happened had been considered foreseeable by the defendant.

While recognising that this shifted the emphasis against employers, the Court of Appeal considered it the correct interpretation, and said they view was based on the trend of relevant European legislation, which emphasised an employer’s obligation to anticipate accidents and guard against them, rather than waiting for them to happen and then reacting.

In the leading judgment Lord Justice Longmore said:

"Since the option allowed is to exclude or limit what would otherwise be the employer's (or another defendant's) liability, it seems to me that it must be for the defendant to prove that any relevant accident was due either to unforeseeable occurrences beyond the defendant's control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care."

Accordingly the appeal was allowed where the defendant (having the burden of proof) could not demonstrate that additional padding on the guard rails, or the greater distance of the rail from the hurdle would have made no difference to the outcome of the incident. In essence the defendant could not demonstrate that the incident was “beyond their control” or “unavoidable despite all due care”.


So for the future, and having regard to the phraseology in other regulations, we have a stricter test putting the burden on the defendant to demonstrate that incidents were “beyond their control” or “unavoidable despite all due care”.

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