Baird v Thurrock Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GAGE,LORD JUSTICE KEENE,LORD JUSTICE WARD |
| Judgment Date | 07 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1499 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2005/0590 |
| Date | 07 November 2005 |
[2005] EWCA Civ 1499
Lord Justice Ward
Lord Justice Keene
Lord Justice Gage
B3/2005/0590
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HHJ YELTON)
Royal Courts of Justice
Strand
London, WC2
MR D SHAPIRO (instructed by Messrs Eversheds, Franciscan House, 51 Princes Street, Ipswich Ip1 1UR) appeared on behalf of the Applicant
MR P LIVINGSTONE (instructed by Messrs Tattersalls, 42 Norton Road, Ingatstone, Essex CM4 0AB) appeared on behalf of the Respondent
This is an appeal by a defendant, Thurrock Borough Council, against a judgment upon a claim by the claimant, Danny Baird, for damages for personal injuries arising out of an accident at work on 28th September 2000.
The order that the judge made in Southend Crown Court on 3rd March 2005 was judgment for the claimant for damages in the sum of £7,500, together with interest of £225. The trial proceeded on the issue of liability only. The parties agreed quantum in the sum of £10,000, subject to liability. The judge found the defendant guilty of negligence and breach of its statutory duty but reduced the damages by 25 per cent to take into account the finding of 25 per cent contributory negligence by the claimant.
The background is as follows. On the day of the accident, the claimant was working as an agency worker for the defendant as a loader on a dustcart. He had been working in that capacity for only a few days before the accident. His job was to collect and load wheelie bins on to the rear of a dustcart. When the wheelie bins had been emptied of refuse, he then returned them to the property from whence they had come.
The dustcart was equipped at the rear with two mechanical hoists. The hoists operated independently of each other. When a wheelie bin was placed in position on the hoist, the hoist automatically raised the bin, tipped it so that the contents of the bin fell into the rear of the dustcart, lowered the bin to the ground and then released the bin on the ground. If, for any reason, a wheelie bin was placed on to a hoist and it was not raised automatically and/or not all the rubbish was tipped out of the bin the first time, the operator could raise the bin by means of a manual operation of buttons situated on both sides of the rear of the dustcart. There were photographs at the trial displaying the position of the hoist on the dustcart. They are available to this court.
The claimant's account of the accident was as follows. He said that, on this occasion, he put two wheelie bins on the hoists at the rear of the dustcart. The left-hand side hoist automatically raised, tipped and lowered the left-hand bin. However, the right-hand side bin was not raised by the hoist. The claimant went to the right-hand side of the rear of the dustcart and operated the buttons which manually raised the bin. He pressed the button and the right-hand side bin went into the up position. He said he walked back across the rear of the dustcart to remove the left-hand side bin. As he did so, he was struck by the right-hand side bin, which had tipped and was lowered automatically by the hoist.
The dustcart on that day was driven by Ms Natalie Garwood, an employee of the defendant. The other loader was Ms Lisa Mulqueen, formerly Marshall. Although neither Ms Garwood nor Ms Mulqueen saw the accident, both witnessed what happened afterwards, having immediately gone to the rear of the dustcart after hearing the incident. At the rear of the dustcart they found the claimant kneeling with injuries to his face. The left-hand side bin had been knocked off the left-hand side hoist and was lying on the pavement but the right-hand side bin, they said, remained in the up/tipping position, attached to the right-hand side hoist and had not been lowered.
The evidence of Ms Garwood and Ms Mulqueen conflicted with the claimant's evidence. If, as the claimant alleged, he had been struck by the right-hand side bin as it descended, then the right-hand side bin would not have been in the up/tipping position after the accident. Ms Garwood and Ms Mulqueen gave the claimant first aid and then all three got into the dustcart to drive the claimant to the hospital. The dustcart pulled off a few metres down the road and it was then that Ms Garwood realised that the right-hand side bin was still in the up/tipping position. She stopped the dustcart and Ms Mulqueen got out, lowered the right-hand side hoist and removed the bin, leaving it at the side of road. The dustcart then continued to the hospital.
In his witness statement prepared for the trial, the claimant made no mention of what had happened after the dustcart had driven off to hospital. In cross examination, when he was asked about the incident when the dustcart was, as Ms Garwood and Ms Mulqueen said, lowered after being driven off, he said that the right-hand side bin had always been in the down position and had remained on the hoist and had been dragged along the road by the dustcart until it was released when the dustcart stopped.
Ms Garwood and Ms Mulqueen on the other hand said that the right-hand side bin was always in the up/tipping position until it had been lowered down by Ms Mulqueen. Ms Garwood said that, if the vehicle had driven off with the right-hand side bin in the lowered position, the clamp which attached the wheelie bins to the hoist would have been released and the dustcart would have been left behind. That, she said, was not the position when they drove off.
There was evidence in the form of an agreed report by an expert in forensic health and consultancy work, Stewart Page. He inspected and examined a vehicle which either was the vehicle involved in the accident or one very similar to it. The judge found that whether it was the one being used at the time or one very similar was not material. The expert in his report described the hoists and the way in which they operated. He went on in his report to describe the circumstances of the accident before setting out his analysis of the accident. At paragraph 26 he said this:
"There is some confusion between Mr Baird and the other members of the crew. According to Mr Baird the bin that struck him was the offside bin whilst according to other members the right hand bin was still in the raised position after the accident had occurred."
Later in his report, he underlined this conflict between the two different versions. At paragraph 33, having set out Mr Baird's version of the accident, he said:
"Under these circumstances both bins would have been on the ground after the accident."
He then dealt with the evidence that was to be given by Ms Garwood and Ms Mulqueen and stated this, paragraph 36:
"This would leave the offside bin in the raised position and the nearside bin on the ground."
The three important witnesses at the trial were, as I have indicated, the claimant, Ms Garwood and Ms Mulqueen. It is not disputed that neither Ms Garwood nor Ms Mulqueen had actually seen the accident but, as I have already said, each said that after the accident the right-hand side wheelie bin was in the raised position. Further, in cross examination, Ms Garwood said that, when she drove off, if the hoist had been in the lowered position on the right-hand side, as described by the claimant, the wheelie bin would have been released from the clamp on the hoist and would have been left behind. It was because it was still in the raised position on the hoist that she stopped.
The judge in his judgment recited the evidence given by the claimant and then turned to the defence case. He said at page 14 of the appeal bundle, starting at line 5:
"It is very difficult to understand from the pleadings what exactly the Defendants' case is but eventually, with a certain amount of tongue-lashing from the Judge, that was extracted. The Defendants' case in essence is either that what occurred was that the bin that hit Mr Baird was on automatic and he simply failed to get out of its way as it came down again, or, secondly, that he did not put the bin on properly and it broke away."
Pausing there, there is no reference there to the part of the defence case which was that it was the...
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