December 2008 Case Law Reports
Robert McIntyre v Basildon District Council [2008]
The Claimant tripped over a cracked pavement in an area of land owned by the Defendant Local Authority. The tarmac had broken up, with a deviation measuring more than 1 ½ “, and was in a poor state of repair.
The Claimant suffered a possible fracture of the volar plate of his dominant right little finger and grazing to his face. The grazing had healed without causing any adverse effects but the Claimant suffered a permanent minor deformity of the finger.
The Defendant Local Authority disputed liability and contended that it had undertaken inspections of the area and had complied with Section 58 Highways Act 1980. An employee of the Defendant gave evidence that the defect was not evident when the 4 monthly inspections were carried out.
The judge rejected the defence and commented that the defect was long standing and could not have occurred overnight. He further commented that there should have been an indication of the defect when the pavement was inspected and that the Defendant’s employee had failed to comply with the code of conduct whilst carrying out the inspections, as that code stated that there should be a driver and an inspector when a drive-by inspection was undertaken. The judge also doubted the oral evidence given that the drive-by inspection was conducted at 10 miles per hour. He held that the evidence produced by the Defendant did not show that a series of inspections was adequately performed and that the Defendant had failed to protect the Claimant from danger and a foreseeable risk of injury.
The Claimant recovered damages of £2800 for his injuries with interest of £37.
Victor White v (1 Eon) (2 Omega Red Group Ltd) (3 Sentinel Lighting Protection and Earthing 2008
The Claimant appealed to the Court of Appeal against the decision of the judge that his claim for personal injury against Defendant 3 was time barred. In 2006 the Claimant had issued proceedings against all 3 Defendants seeking damages for vibration white finger and carpal tunnel syndrome caused by excessive levels of vibrations from tools used in his work as a lightening conductor fitter. The Claimant had worked for the Third Defendant between 1962 and 1996. Whether the Third Defendant had a limitation defence to the claim was determined as a preliminary issue.
The Claimant’s case was that his date of knowledge had been in the summer of 2003, when he saw and advertisement for a claims company. The Third Defendant contended that the date of knowledge was much earlier, so that his claim was statute barred. A judge found that the Claimant had constructive knowledge pursuant to Section 14(3) Limitation Act 1980 by the time he left his employment with the Third Defendant, because by then it had been reasonable to expect him to have sought medical advice in respect of his combination of symptoms, which would have led to the necessary link between his condition and the use of vibrating tools. The judge further refused to disapply the limitation period of the Act.
The appeal was dismissed by the Court of Appeal. It had been for the judge to decide what was or what was not reasonable for the Claimant to have done in the circumstances. His finding that it would have been reasonable for the Claimant to have sought medical advice was a finding of fact open to the evidence before him, and not the sort of finding that the Court of Appeal ought to interfere with. It had not been illogical to find that the Claimant had constructive knowledge by the end of 1996. The judge’s finding to that effect had been both obvious and logical and could not be criticised.
Craner v Dorset County Council [2008]
The Local Authority appealed against a decision that a personal injury suffered by the Claimant involved a breach of Section 12(3) of the Work Place (Health, Safety and Welfare) Regulations 1992 and of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998. The Claimant was a school handyman and caretaker. He was pushing a wheeled trolley along a paved area between classrooms when the trolley came into contact with a raised edge of a slab and came to an abrupt halt. The Claimant’s right knee struck the trolley and he suffered an immediate and painful injury. The Claimant required surgery on his knee and could not return to his job.
The judge concluded that the raised slab did constitute a safety hazard and that there was liability pursuant to one or other or both sets or Regulations. On the limited evidence available the judge concluded that there had genuinely been an accident as the Claimant described and that the protrusion of the slab was sufficient to bring the wheels of the trolley to a halt and cause the Claimant’s knee to come into contact with the trolley, giving rise to a painful injury. The Defendant Local Authority argued that the raised paving slab did not constitute any risk to health and safety, the trolley was suitable for its intended purpose of transporting tools or other equipment round the school and what had occurred was a freak or inexplicable accident which could not have been prevented or guarded against.
The Court of Appeal dismissed the appeal. It was held that although the evidence before the judge was somewhat scanty, the judge was entitled to come to the conclusion he did. The accident was not a freak accident, but commonplace. The attitude of the Defendant Local Authority was that other matters at the school had a higher maintenance priority than the paving stones.
Sophie Elizabeth Palmer v Christopher Kitley [2008]
The Court was required to assess damages in relation to personal injury suffered by the Claimant in a road traffic accident in which the Defendant had admitted liability. The Claimant was sitting in the front passenger seat without wearing a seatbelt. Two other passengers were in the rear. The Defendant took a right hand turn at excessive speed causing the vehicle to leave the road on its near side. It hit a telegraph pole, rolled off-side and hit a tree trunk. The rear passengers were killed. The Claimant sustained head injuries, fractured ribs, pneumothorax to the chest, soft tissue injury to the left kidney, lacerations to her left thigh, discolouration of her hip and an unstable fracture involving the lumbar vertebra.
It was held that it was not an inevitable conclusion that the Claimant would have not suffered greater injuries had she worn a seatbelt, so it was appropriate to reduce her damages by 15% (Froom v Butcher) [1976].
Goodwin v Bennetts UK Ltd [2008]
The Claimant employee appealed against a decision dismissing her claim against her employer for damages for personal injuries sustained in the course of her employment. The Claimant worked as an insurance adviser, writing letters inviting customers to renew their insurance policies and carrying out a number of other administrative functions. She sat at a work station. She developed a pain in her wrists around the same time as she had a car accident, although it was unclear whether the accident and the pain were connected. Her symptoms subsided when she went on holiday and returned when she returned to work. She visited her doctor who signed her off work and diagnosed tenosynovitis, a condition where posture, repetition and lack of rest were important factors in development. The Claimant claimed damages for personal injuries and consequential losses on the grounds of negligence and breach of statutory duty by her employer.
The judge rejected the diagnosis of tenosynovitis and found that the Claimant’s symptoms were not caused by her work and that the Defendant had not been in breach of the Health and Safety (Display Screen Equipment) Regulations 1992 and that in any event, any breaches had not caused injury to the Claimant. It was held on the evidence that the Claimant’s work station and posture were satisfactory, the volume of her work was not such that there was excessive repetition or insufficient rest. The judge had therefore been entitled to reject the diagnosis of tenosynovitis as the underlying cause of the pain was not known. It had been shown, however, that the symptoms were aggravated whenever the work consisted principally of typing up renewals. The judge ought therefore to have held, on the balance of probabilities, that the pain was aggravated by keyboard work. The Defendant had not planned activities to allow breaks or changes in activities to reduce the workload, but in practice the daily routine was interrupted by such breaks. The judge had concluded that the amount of typing did each day was not such as to cause a reasonable employer to foresee any risk of personal injury, and that no one would have expected the Claimant’s moderate use of the keyboard to cause any personal injury, even if the employer had provided proper training and information. Those conclusions could not be faulted in respect of the period leading up to the Claimant’s diagnosis. After then, the Defendant had been alerted to the fact that the Claimant had pain in her wrist and that pain appeared to be related to her keyboard work. The appeal was therefore allowed in part, as it was held that the Defendant was liable and negligent for the recurrence of the Claimant’s symptoms which occurred following her diagnosis. Similarly if the Defendant had provided proper training and information after the diagnosis, the Claimant’s keyboard use would have been substantially less than it was, with the consequence that the recurrence in her symptoms would not have occurred.
Donna Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust [2008]
The Claimant nurse appealed against a decision dismissing her claim against the Defendant NHS Trust for damages for personal injury. The Claimant had decided to bath a patient. She transferred the patient into a mechanical hoist and wheeled it to a bathroom and to the end of the bath, which stood on plinths. The Claimant had to manoeuvre the forks of the hoist under the bath avoiding contact with the plinth which, as shown by photographs, was not visible from a standing position. As the Claimant pushed the hoist forward, it suddenly stopped and she suffered a jerking injury to her back.
The judge held that although the Defendant NHS Trust had failed to carry out a risk assessment of the manual handling operation, the breach was not causative of the injury. The judge held that it was debatable whether a risk assessment would have said anything about the risk of collision with the plinth, save to warn that there was a plinth and it was necessary to take care to align the hoist centrally, notwithstanding that the Claimant knew this already and had managed to use the hoist on occasions in the past without mishap.
The Court of Appeal held that it was clear that the judge had not given separate consideration to Regulation 4(1)(b)(ii) Manual Handling Operations Regulations 1992, which he should have done as the requirements of that regulation were separate from and additional to the requirement to carry out a risk assessment. Although a risk assessment would show the employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable, in the instant case there was no risk assessment and so the judge should have focused on Regulation 4(1)(b)(ii). It was not sufficient merely for the judge to examine whether a risk assessment would have made any difference.
Once it had been shown that the manual handling operation carried some risk of injury, the burden of proof was on the Defendant to plead and prove that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable. Although there was nothing inherently wrong with the manual hoist and it could be used safely, the suggestions about markings on the floor and bringing the plinth forward, which were designed to help the operator to guide the forks of the hoist under the bath, would have involved modest costs, were reasonable practicable and would have reduced the risk of injury to a significant degree. Those were appropriate steps. In the circumstances, it was held that the Defendant NHS Trust was in breach of its duty and was liable for the Claimant’s injury. As regards contributory negligence, the Claimant had to some degree been careless. She had not looked carefully to see exactly where the forks were going under the bath. The fault of each party had caused the injury and they therefore should share responsibility equally.
Hall v Holker Estate Co Ltd [2008]
The Claimant appealed against a decision dismissing his claim for damages for personal injury sustained while playing football with his son at the Defendant’s caravan park. The park included an area of grass where there was a portable tubular goal frame. The Claimant was in goal and as he retrieved the ball from the net, he caught his foot in the net and fell to the ground. As he lay on the ground the goal tilted and fell forwards and the cross bar struck him in the face. The net and goal itself should have been pegged to the ground. There was evidence that the Defendant was aware of the possibility of caravaners or their children might remove the pegs, and that that had happened on occasions in the past.
The judge found that the goals had been checked for safety on a daily basis, but he did not make clear what interval would have been proper for inspections nor whether inspections as such intervals had taken place. He found that there was no evidence that the goal had not routinely been sufficiently secured so as to make it safe. The judge found that the incident was an isolated one. On that basis it had not been proven that the Defendant’s system was inadequate in failing to detect and correct the absence of pegging. Accordingly, he dismissed the claim.
It was held that the judge had erred. Once the judge had found that the accident was caused by a lack of safety issues (consisting of the absence of pegging of the goal, lack of regular inspections and the fact that the Defendants had accepted a duty of inspection to check that the pegs were in place but had failed to prove that the system was in operation at the time) he should have gone on to find that there was no basis for holding that the accident would have been likely to have happened irrespective of a proper and adequate system. The reason for the judge’s findings that the claim had failed was not that care had been taken in setting up or effecting a proper system of inspection but simply that the Claimant had not proved that the situation prevailing at the time of the accident had existed for very long.
The judge should have approached the case on the basis that, assuming that pegs had at some time earlier been properly in place along the frame, but had been removed, the probabilities were that the situation had existed at least throughout the day and that, if the daily system of inspection, which the safety inspector regarded as necessary and which he purported to carry out had actually been carried out, then the absence of pegging would have been detected and the pegs replaced. The appeal was therefore allowed.