Andrew Carr (A Protected Party, by His Litigation Friend Michelle Parsons) v Brands Transport Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 20 December 2022 |
| Neutral Citation | [2022] EWHC 3167 (KB) |
| Docket Number | Case No: F90BM313 |
| Court | King's Bench Division |
and
[2022] EWHC 3167 (KB)
Mr Justice Julian Knowles
Case No: F90BM313
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil and Family Justice Centre
33 Bull St
Birmingham
B4 6DS
Stephen Killalea KC (instructed by Irwin Michell LLP) for the Claimant
Lord Faulks KC (instructed by DAC Beachcroft Claims Limited) for the Defendant
Christopher Kennedy KC (instructed by Keoghs LLP) for the Third Party
Hearing dates: 14–16 February 2022
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
This is a tragic case. Nothing in this judgment is intended to minimise the loss and suffering of the Claimant, his family and his friends.
This is also not a straightforward case. Resolving it has not been easy and has taken some time.
The case raises a number of substantial legal issues including: (a) whether the Claimant was an employee of the First Defendant, Brands Transport Ltd (Brands), as well as being its sole director and majority shareholder; (b) assuming he was an employee, whether Brands is liable for alleged faults on the part of its external transport manager (an independent contractor), who was responsible for regulatory compliance, and whose fault (it is said) caused or contributed to the accident in which the Claimant was seriously injured, because Brands owed the Claimant a non-delegable duty of care as its employee: see Woodland v Swimming Teachers Association [2014] AC 5; (c) whether the Claimant can sue Brands, even though he was its sole director, or whether, it being said by Brands that the accident was the Claimant's own fault, his claim is defeated by the principles set out in Brumder v Motornet Service and Repairs Ltd [2013] 1 WLR 2783; (d) whether Brands' external transport manager was in a position analogous to that of an employee, so that Brands is liable for his fault as if he were in law an employee: see Various Claimants v Barclays Bank Plc [2020] AC 973; and (e) whether the Claimant was contributorily negligent and, if so, to what extent.
As well as my detailed trial notes, I have full transcripts of the hearing which I have consulted whilst writing this judgment. I also was supplied with various written submissions by the parties, before and after the trial, for which I am grateful.
Factual background in brief
On 18 December 2017 the Claimant, then aged 32, was in the process of loading cars on to the top deck of a large double-decker car transporter at premises in the Midlands. The vehicle consisted of two distinct sections: a tractor unit (or cab), and a trailer with triple axles. Both the cab and trailer unit had ramps (decks) which could be raised and lowered and/or angled to allow for the loading of cars. Also, sitting directly above the tractor unit, was a fixed overhead platform. This, and other sections of the unit, had safety rails. These consisted of cables looped through steel guard rails which were welded to the unit, with the ends of the cables anchored to the unit. The rails were intended to stop people from falling from the decks.
As the Claimant was loading and securing a Skoda car on the deck above the tractor unit, the front near side safety guard rail gave way when the Claimant leant back on it or put pressure on it. That is the inference I draw from the evidence: no-one saw the actual accident. The Claimant fell some 14 feet or so on to concrete. He suffered a severely fractured skull and catastrophic brain injuries which he is unlikely ever to recover from. It is not necessary for the purposes of this judgment (which is only concerned with liability) to set out further details of his injuries. He is not able to give evidence and is a protected party.
It is common ground that the safety rail failed because of corrosion in the front near side guard pillar. An area of the pillar just above where it had been welded to the unit had almost entirely corroded away. That pillar then snapped when force was applied to it, causing the cables to give way and the Claimant to fall from the top deck.
The transporter was owned by Brands. The Claimant was Brands' sole director and an 80% shareholder. His partner Michelle Parsons owned the other 20%. The Claimant was paid a salary. Ms Parsons did some administrative work for the company and also received a salary.
Brands was established by the Claimant in February 2016. It was going to undertake car transport work using the transporter, which was purchased second-hand towards the end of 2016. There had been some ‘dry-runs’ in the months prior to the accident, but the day of the accident was Brands' first paying job.
At least initially, there was an issue whether the Claimant was an employee of Brands. For reasons I will explain later, I am satisfied that he was indeed an employee, as well as being its sole director and majority shareholder. The law is clear that a company's sole director can also be an employee.
The Claimant sues Brands for negligence for personal injury.
The Third Party, Trax (Coventry) Limited (Trax) is a company whose business included carrying out safety checks on large vehicles (it has since ceased trading). The regulatory regime in force for such vehicles requires them to be inspected for roadworthiness regularly, in the case of the transporter, every six weeks, as well as having an annual MOT. Drivers also need to do daily walk around inspections before they set off. Trax inspected the car transporter in October 2017 and November 2017 and passed it as roadworthy. There had been two inspections earlier in 2017 not done by Trax. The vehicle passed its MOT in August 2017.
Because it was used for working at height, the transporter needed additional inspections under health and safety regulations, as I will describe in a moment.
The Claimant originally issued proceedings against both Brands and Trax as Defendants. Following pleading amendments, the Claimant's case against Trax was discontinued. Brands then brought a claim against Trax under CPR Part 20 for an indemnity/contribution, in the event that I find Brands to be liable. It is common ground that if I find for Brands as against the Claimant, then its claim for a contribution from Trax will fall away.
Health and safety legislation
As I have said, because the transporter involved working at height, it was subject to the Lifting Operations and Lifting Equipment Regulations 2008 (SI 2008/2307) (LOLER). These imposed additional inspection requirements over and above those I have already mentioned. Also relevant are the Provision and Use of Work Equipment Regulations 2008 (SI 2008/2306) (PUWER) and the Working at Height Regulations 2005 (SI 2005/735) (WHR).
It is convenient here to set out the relevant regulations.
Regulation 4 of LOLER provides:
“Organisation and planning
4.—(1) Every employer shall ensure that work at height is —
(a) properly planned;
(b) appropriately supervised; and
(c) carried out in a manner which is so far as is reasonably practicable safe,
and that its planning includes the selection of work equipment in accordance with regulation 7.”
Regulation 9 provides:
“Thorough examination and inspection
9.—(1) Every employer shall ensure that before lifting equipment is put into service for the first time by him it is thoroughly examined for any defect unless either —
(a) the lifting equipment has not been used before; and
(b) in the case of lifting equipment for which [an EC declaration of conformity] [a declaration of conformity] could or (in the case of a declaration under [the Lifts Regulations 2016]) should have been drawn up, the employer has received such declaration made not more than 12 months before the lifting equipment is put into service;
or, if obtained from the undertaking of another person, it is accompanied by physical evidence referred to in paragraph (4).
(2) Every employer shall ensure that, where the safety of lifting equipment depends on the installation conditions, it is thoroughly examined—
(a) after installation and before being put into service for the first time; and
(b) after assembly and before being put into service at a new site or in a new location,
to ensure that it has been installed correctly and is safe to operate.
(3) Subject to paragraph (6), every employer shall ensure that lifting equipment which is exposed to conditions causing deterioration which is liable to result in dangerous situations is —
(a) thoroughly examined—
(i) in the case of lifting equipment for lifting persons or an accessory for lifting, at least every 6 months;
(ii) in the case of other lifting equipment, at least every 12 months; or
(iii) in either case, in accordance with an examination scheme; and
(iv) each time that exceptional circumstances which are liable to jeopardise the safety of the lifting equipment have occurred; and
(b) if appropriate for the purpose, is inspected by a competent person at suitable intervals between thorough examinations,
to ensure that health and safety conditions are maintained and that any deterioration can be detected and remedied in good time
…”
There was an issue about whether, pursuant to this regulation, the transporter should have had a thorough reg 9 LOLER inspection at least every six months, or at least every 12 months. For reasons I will explain later, I incline to the view that the relevant period was at least every six months, pursuant to reg 9(3)(a)(i). In saying this, I have not overlooked that the last LOLER inspection report done by the company from which Brands bought the transporter (ECM (Vehicle Delivery Service) Ltd (ECM))...
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