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DWF case update - Employers’ liability

Nabelsi v Dudley MBC
27 January 2015
Birmingham County Court

James Neale extracts some useful pointers from the successful defence of a recent employers' liability claim involving a snow and ice slip and breach of duty.

Facts

The claimant was employed by the defendant local authority at their Saltwells Education Centre. Access from the building was via four wooden steps. He alleged he slipped on snow and ice when descending those steps to leave the building in December 2014. The allegations of breach of duty and negligence centred around the fact that the defendant had failed to clear the snow and ice and/or grit the area sufficiently to make the traffic route safe and clear of substances which might cause someone to slip and fall, breaching Regs 5(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

The claimant’s account of the accident circumstances changed over time. Initially in the original letter of claim he said that he slipped on the steps as a result of deep snow that had not been cleared. However, he later changed his account to confirm that the steps had been cleared of snow and that it was the tarmac area below the steps which had not been cleared. He stated that he was holding onto the rail as he made his way down the steps but as he put his foot onto the ground he slipped because the snow and ice had not been gritted. He fell backwards and landed on the steps.

The claimant ignored the defendant’s requests to include correspondence sent by the claimant’s previous solicitors to the defendant’s insurers making concessions about snow/ice being cleared from the steps and confirming that the claimant had slipped on the tarmac at the bottom of the steps. The judge granted an application by the defendant to have these documents inserted into the trial bundle.

The defendant put the claimant to proof as to his accident circumstances and specifically what caused him to slip, fall and sustain injury. This was of particular importance given the discrepancy between the claimant’s pleaded case (which stated that he had slipped on the steps) and his witness evidence (which stated that he had slipped on the tarmac below the steps).

The defendant’s case was that they accepted there was snow/ice about but that this had been made safe by Kevin Homer, the on-site caretaker. He would clear the snow and grit the areas to allow safe passage for employees and visitors. The on-site caretaker provided detailed evidence on the steps he took and, despite it being a large site consisting of several acres, he confirmed he concentrated on key areas to ensure safety. His evidence was that he did clear snow/ice from the steps and the area of tarmac below the steps. 

Findings

DJ Shorthouse dismissed the claimant’s claim:

  • The claimant had a number of inconsistencies with his case and was found to be “evasive and vague”:

    • There were different accounts given in the accident report (slipped/fell down 3 steps), ambulance records (slipped/fell down 2 steps), two hospital records (slipped/fell down 2 steps), letter to his GP (slipped/fell down 6/7 steps) and the one given to his own medical expert which said “verbatim” that he fell down the steps. In addition there were inconsistencies with his particulars of claim (slipped/fell on steps) and the initial pre-action correspondence sent by the claimant’s previous solicitors (which stated the claimant confirmed the steps were clear of snow/ice, something which he denied in cross-examination). The letters from the previous solicitors also made it clear the claimant had been asked about where he fell and the letters confirmed the solicitors took instructions from him and that he confirmed the snow/ice had been cleared from the steps on the accident date. For the claimant to now suggest he only had one call with these solicitors and did not tell them this, particularly given that he had no reason to stick with the version of events that snow/ice remained on the steps at the time of his accident, “was not credible/reliable”.

    • When questioned why there might be these discrepancies, the claimant’s opinion was that he must have been misinterpreted. Given the many times it was recorded that he slipped down the steps, the judge found this explanation to be implausible. He also said the claimant’s witness evidence was evasive on this point and the claimant had only provided evidence he wanted to give, not properly answering the questions put to him.

  • He much preferred the witness evidence provided by the defendant’s three witnesses (Kevin Homer/James Holmes/Jetnor Rexhollari) who all confirmed that the steps and the tarmac below them had been cleared of snow/ice. He found them all to be clear, credible and providing very detailed answers about the accident and the conditions on the day:

    • They elaborated on the reasons they could remember the steps and that the pathway from the steps were cleared of snow/ice and gritted on the accident date: (1) Jetnor Rexhollari did not park his bicycle up against the steps/platform because he did not want the grit to damage it; (2) Before entering the building he stamped his feet to remove the grit from them; (3) He would have reported any problems to Kevin Homer, but he did not because he deemed it safe; (4) He visited the toilet/canteen throughout the day on the day of the accident and all was clear and gritted throughout the day; (5) Post-accident he saw a damp patch and grit stuck to the claimant’s back (the claimant admitted in cross-examination this might be correct).

    • The on-site caretaker was the most crucial witness. He was very compelling. In bad weather such as this he would get up around 3am/4am to get the site ready for employees and visitors. He followed his usual system by clearing and gritting relevant pathways and, despite lack of documentary evidence, he provided clear evidence of the system he employed which included clearing/gritting the entirety of the steps and the full width of the steps on the tarmac below it. He also provided evidence regarding grit and rock salt orders to show there was sufficient supply on site.

  • It was clear the claimant had slipped on snow/ice but he had not proven his case and the accident circumstances. His claim failed.

  • Given this, there was no need to discuss breach of duty, but the judge confirmed that the defendant had taken all reasonably practicable steps in clearing snow/ice and gritting and thereby implied the defendant would not have been found in breach in any event.

  • The defendant was awarded its costs which were summarily assessed.

Comment

This case shows the importance of carefully analysing the claimant’s accident circumstances, particularly those involving slips on snow/ice and putting the claimant to strict proof as to where, why and how their accident occurred. Where there are several inconsistencies in the different accounts provided it can prove to be extremely useful in cross-examination.

It also shows that even in the harder to defend employers’ liability claims, even without a formal written winter maintenance policy, if strong witness evidence regarding the policy can be obtained, and it can be shown that that same policy was implemented at the relevant times, it can still be proved that defendants have not breached their duties to employees.

See also:

Snow and ice: be prepared. 
Denise Brosnan provides a timely reminder for local authorities of their obligations both as employers and as highway authorities and some practical tips on defending claims arising out of icy conditions.

Contact

For further information please contact James Neale on +44 121 200 0408 or at james.neale@dwf.co.uk.

By James Neale

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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