January 2009 Case Law Reports
Neil Turner v Russell Green and Motor Insurers Bureau
In a claim for damages for personal injuries sustained in a road traffic accident involving a motorcycle, the Court was required to determine whether the Claimant or the First Defendant had been driving the vehicle at the time of the accident. The Claimant had either been the driver or pillion passenger on a motorcycle that had subsequently mounted a pavement and collided with a wall, as a result of which the Claimant sustained injuries. It was accepted that the accident must have been caused by the negligent handling of the vehicle and that if the First Defendant had been the driver, he was liable. The Claimant submitted that at the time of the accident he had been travelling as a passenger on the motorcycle which was being driven by the First Defendant. He alleged that at a pub, the First Defendant had offered to sell him his motorcycle and that he had gone on a test drive as the pillion passenger.
The evidence of the police officer who found the Claimant lying near the motorcycle was that no other riders had been found in the area. The police officer believed, contrary to the Claimant’s evidence, that the motorcycle had been travelling from west to east and both he and the hospital notes indicated that the Claimant had smelt of alcohol. The Claimant had stated that he had only drunk one pint before the accident and contended that he had been travelling from east to west. There was further evidence that whilst the First Defendant had falsely reported that the motorcycle had been stolen, when a police officer took a statement from him at his home, he noticed no signs that the First Defendant had been injured.
It was held that on the day of the accident, the Claimant had been drinking much more than he had admitted and it was highly likely that he had been unfit to drive. Having arrived at the pub, he had met the First Defendant and asked to ride the motorcycle. The First Defendant had given permission to take it onto the road and the Claimant had left the pub riding the vehicle alone. As he approached a bend in the road he had lost control, probably as a result of the influence of alcohol and collided with the kerb and brick wall. At the time of the accident, the First Defendant had been at the pub from where he had been given a lift home and had falsely reported his motorcycle as having been stolen. In reaching the conclusion, the evidence of witnesses who had placed the First Defendant at the pub throughout was accepted. The evidence that there had been no one else at the scene immediately after the accident and that the First Defendant had suffered no injury, was also compelling. The claim failed accordingly.
Laroche v Spirit of Adventure (UK) Limited
The Claimant appealed against a decision dismissing his personal injury claim against the Defendant. The Claimant also applied for permission to appeal against a decision that his claim was extinguished by virtue of the Carriage by Air Acts (Application of Provisions) Order 1967 Schedule 1 Art. 29.
The Claimant had been carried in a hot air balloon on a flight organised by the Defendant. During the journey, the basket that was attached to the balloon crashed and the Claimant was injured. The Defendant company subsequently entered into voluntary liquidation and was dissolved, but was later restored to the Register of Companies so that the Claimant’s claim for damages could be advanced.
The Judge held that the Claimant’s claim was governed by Schedule 1 to the 1967 Order which was the sole remedy available in respect of the injuries he sustained, and that the Claimant had not brought the proceedings within the 2 year period prescribed by Schedule 1 Art. 29. The Claimant submitted that the fact that the balloon flight was for recreational purposes meant that Schedule 1 of the 1967 Order and the Walsall Convention on International Carriage by Air 1929 did not apply and further, that the hot air balloon was not an “aircraft” as the Judge had held, nor was there “carriage” of him or that he was a “passenger” within the meaning of Schedule 1.
It was held by the Court of Appeal that the mere fact that the flight in the hot air balloon was for recreational purposes was not, of itself, a sufficient reason for concluding that the Convention and Schedule 1 did not apply. The natural and ordinary meaning of the word “aircraft” was wide enough to include a passenger carrying hot air balloon. The fact that it was used for recreational purposes and was not a regular or obvious means of international transport did not mean that it was not an “aircraft”. It was also held that the Claimant was a passenger within the meaning of Schedule 1 and that a “contract of carriage” did not require an agreement as to departure and destination. The appeal was therefore dismissed.
Ferdinand Ammah v Kuehne and Nagal Logistics Ltd (2009)
The Claimant appealed against a decision dismissing his claim for personal injuries for breach of the employer’s duty of care to ensure a safe system of work. The Claimant was employed by the Defendant in the despatch department, where it was his job to get items off the shelves. Most of the shelves were at the A level, up to approximately 6ft in height, with the result that items on them could be reached without difficulty. The next level up was the B level and there was also items stored higher at C level. When the Claimant was attempting to collect a leaflet from a box on a B level shelf just out of reach, he turned a tote box upside down and stood on it to gain access to the upper shelf. He was reaching the shelf when the box moved under him and he fell, breaking his ankle. He claimed for negligence and breach of statutory duty, contending that the Defendant should have told him not to use the boxes in that way.
The Judge held that the accident was not caused by any breach of duty on the part of the Defendant. The Claimant submitted that it was the Defendant’s duty to warn employees against such a risk, even if obvious, and that on the evidence the Defendant had failed to give any such warning.
The Court of Appeal rejected the appeal. It was held that some dangers were so obvious that no instruction was required, although that could not be said in relation to the risk in the instant case. A warning or instruction was required even though it was very rare for an employee to stand on a box. It was held that a general instruction not to use equipment for anything other than its intended use was clearly insufficient. However the Claimant’s evidence was that staff were instructed that in order to access shelves out of their reach they should use a “man-riser”, portable steps or a forklift truck and that they should not stand on a box. The Claimant accepted that he was told to use a “man-riser” if he could not reach a shelf. The Defendant had complied with its duty of care to ensure safe system of work in relation to access to the upper shelves. Not only was suitable equipment available, but employees were instructed to use that equipment and not to stand on boxes for the purpose. The risk associated with standing on a box had been identified, but had been adequately guarded against by the instruction given. In standing on a box, the Claimant took a risk which only he was to blame for and there was no basis for holding the Defendant liable.