I'm interested in…

  • Strategy & Procedure
  • Motor
  • Fraud
  • Disease
  • Catastrophic Injury
  • Commercial Insurance
  • Costs
  • Liability
  • Local Authority
  • Professional Indemnity
  • Scotland

Employers’ Liability: defendant not liable for untrained employee’s accident

Jones v Afon Engineering
17 November 2015
Swansea County Court

James Lee of DWF acting on behalf of the defendant on instructions from RSA

When work equipment appears to have failed and caused injury, claimants can be encouraged to litigate relying upon either the strict liability concept (before the ERRA came into force) or in general negligence.  But how does a court view an employee who wilfully ignores the adopted health and safety procedures in the workplace? James Lee reports on the successful defence of such a claim, extracting some useful pointers and considering whether the result would have been any different had the accident taken place against the background of the current law.  

Facts

The claimant, an experienced machinist, began his employment with the defendant, an industrial fabrication and welding company three months prior to the accident. Despite confirming in his interview and within his CV that he was experienced and trained in the use of lifting equipment, he was expressly informed at the outset that he was not to operate any such equipment until he was trained to do so by the defendant.

On the 18 September 2011, the claimant was instructed to drill holes into a one tonne steel fabrication. In order to turn the fabrication it had to be lifted onto a drill bed. The claimant attached the fabrication to an electric magnet and hoisted the same with a gantry crane. He then lifted the fabrication off the ground and called a colleague to assist.

The claimant alleged that he handed over the crane controls to the colleague, who was also untrained, and who then moved the controls which jerked the fabrication, causing it to topple and fracture the claimant’s ankle. The colleague denied the claimant’s account and stated that at all times the claimant had control of the crane.

The claimant pleaded breach of statutory duty under the Provision and Use of Work Equipment Regulations 1998 and the Management of Health and Safety at Work Regulations 1999, and also negligence.

The claimant’s case at trial was that he had used the crane before the accident on numerous occasions even though he had not had his training, and that management in effect provided tacit agreement. It was also alleged that the claimant had seen numerous untrained members of staff use the lifting equipment. The claimant alleged the work equipment had failed because the fabrication detached from the magnet. In addition, he alleged that the defendant was vicariously liable for his colleague’s actions.  

In rebuttal, the defendant argued that it was not condoned for untrained employees to use lifting equipment. Specifically, new employees were told they were not allowed to use lifting equipment until trained.  The defendant robustly denied that there were untrained staff using the crane regularly and affirmed that the policy was strictly adhered to. The defendant’s case was that it was the claimant who was operating the crane at all times. In relation to the lifting equipment, the defendant stated that it was in good working order and the reason the magnet detached was due to the operator’s method and not as a result of any defect.

Findings

During cross examination the claimant conceded he was told he could not use the operating crane until trained. He could not identify any other untrained staff that had used the crane. The defendant, by statistical analysis of the workforce as compared to the training records, was able to establish that there were only two members of staff untrained (one of which was the claimant) at the relevant time. His assertion that numerous members of untrained staff were using the crane was therefore abandoned.

Critically in this case, the defendant interviewed both the claimant and the colleague on the day of the accident and, impressively, obtained typed and signed statements the day after. Within the claimant’s statement he stated that he was using the crane and made no reference to his colleague doing so.  When questioned on this critical omission at trial, he stated the reason was so as to not land his colleague in trouble which HHJ Vosper QC considered a “deliberate lie”. 

With differing accounts before the court at trial the judge placed great significance on the contemporaneous accident statements and considered them to be the most accurate version of events. Therefore, the court concluded that the claimant himself was using the crane, that he knew he should not have been, and that the defendant did not condone those actions. In simple terms, the accident was caused by the actions of the claimant and the claimant alone. 

In coming to his judgment the judge considered that there was no overarching statutory duty that the defendant had breached, that the equipment was safe for use by trained personnel and that all employees had been sufficiently instructed and trained and company policy properly enforced.

The claim was dismissed with an order for claimant to pay the defendant’s costs, this being a case which predated the QOCS regime.

Comment

This is a sound and useful judgment to illustrate that when claimants act upon their own volition and ignore the accepted health and safety procedures in the workplace, then they will be responsible for their own actions. The judge adopted a common sense approach and was not critical of the defendant’s failure to train the claimant despite him having been employed for some three months by the time of the accident, perhaps implicitly accepting the realities of running a small business. 

The claimant was confident that some liability would attach, given that the claimant was using the lifting equipment whilst untrained, but the outcome of this case demonstrates that the employer is not always to blame when untrained staff suffer injury.

This case also highlights the importance of both having, and putting into practice a thorough accident investigation procedure. The contemporaneous statements proved to be crucial in rebutting the claimant’s allegations.

Although this case predates the implementation of both the QOCS regime and the provisions of the ERRA, it is worth considering how each might have affected the case.

Had this been a QOCS case the successful defendant would have been unable to enforce its costs order against the claimant unless one of the exceptions contained in CPRr.44.15 or 44.16 applied. In this case, in light of the judge’s finding that the claimant had deliberately lied about his inconsistent witness statement the defendant could have argued that the claim was fundamentally dishonest and that the defendant’s costs order should be enforceable against the claimant. 

This scenario is not dissimilar to the one that arose in the 2015 DWF case of Creech v Severn Valley Railway & Ors. In that case the defendant made a successful application to disapply QOCS at the conclusion of the trial, after the judge had made a finding of fact which left no room for an argument that the claimant had simply been mistaken and meant that the claim was necessarily fundamentally dishonest. The facts underpinning the rejection of the Jones claim may have been sufficient to reach the same conclusion as in Creech.

The ERRA too would have applied to the claim had it been of more recent origin. The decision in the case in favour of the defendant would have been no different post ERRA as of course the Act effectively removes the argument for a claimant that strict liability can arise based on breach of a statutory duty. Indeed, post ERRA, the claimant’s case would have been weaker and he may not have been advised to take the claim as far as trial.

Contact

For further information, please contact James Lee, Solicitor on 0151 907 3047 or at james.lee@dwf.law 

By James Lee

Share your views

Please complete your details below to share your views. All comments are moderated and only your name and comment will be visible.

Your Comment

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.

Top