Ernest Christmas was employed to clean a customer’s windows. He had to place his hand between two window sashes to clean the outside panes. One sash unexpectedly closed into the other, crushing his hand. As this was his only means of support, he fell and was injured. The employer argued that, as an experienced window cleaner, the claimant should have known sash windows can close unexpectedly and should have wedged it open himself. In short, they contended that he had placed himself in a dangerous situation and suffered the foreseeable consequence. The Court rejected this argument, holding that the employer could not shift responsibility for devising a safe system of work onto the employee. Lord Reid emphasised the employer’s duty:

“Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the windowsill to prevent the window from closing. No doubt he cannot be certain that his men will do as they are told when they are working alone. But if he does all that is reasonable to ensure that his safety system is operated, he will have done what he is bound to do.”

Lord Oaksey commented:

“In my opinion, it is the duty of the employer to give such general safety instructions as a reasonable careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a boardroom with the advice of experts. They have to make their decisions on narrow windowsills and other places of danger and in circumstances in which dangers are obscured by repetition.”

Note the suggestion here of the role of worker participation:

“… their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves.”

I’ve often found this – workers do understand the risk, and when sitting in the “calm atmosphere of a boardroom” or breakout area, they can absolutely tell you what could go wrong, and what needs to be done to prevent an accident. But it remains the duty of the employer to extract this information, document it, and ensure that the workforce have the time, tools and training to implement safer ways of working.

This case also reflects our change in risk appetite since 1953. The court suggested only that since the handhold while standing on a windowsill relied on the sash window staying open, wedges should be used to keep the window open. By the 21st century, it is unlikely any court would regard standing on a windowsill to clean a window as a safe method of work.