Ball v Street
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Longmore,Lord Justice Jacob |
| Judgment Date | 04 February 2005 |
| Neutral Citation | [2005] EWCA Civ 76 |
| Docket Number | Case No: B3/2004/0528 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2005 |
[2005] EWCA Civ 76
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(MR RECORDER MICHAEL CHAMBERS QC)
Lower Court reference: CF 204970
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter
Lord Justice Longmore and
Lord Justice Jacob
Case No: B3/2004/0528
Mr Brian Langstaff QC and Mr Robert O'Leary (instructed by Messrs Thompsons) for the Appellant
Mr Alan Jeffreys QC and Mr Glyn Edwards (instructed by Messrs Lyons Davidson) for the Respondent
Introduction
This is an appeal by the claimant, Mr Ball, from the judgment and order of Mr Recorder Michael Chambers QC dated 30 January 2004 in the Cardiff County Court, whereby, following trial upon the issue of liability only, he dismissed Mr Ball's claim for damages in respect of an accident in which he lost the sight of his left eye.
Mr Ball is a farmer. His injury occurred when he was using a haybob machine owned by the defendant who farmed nearby and whose services Mr Ball had hired for reward, including the use of his machine. A haybob is a piece of farm machinery towed behind a tractor for the dual purpose of turning and scattering new mown hay on the one hand and organising the hay into neat rows on the other. This operation is performed by rotating tines mounted on tine mounting shafts which have to be adjusted to one of the two appropriate positions (so as to alter the angle of the tines) according to the operation to be carried out. On the day of the accident, Mr Ball was using the haybob on his own with the consent of the defendant who was temporarily absent from his task of mowing, rowing and bailing hay on certain of Mr Ball's fields.
Mr Ball's action for damages was based upon breach of implied terms as to fitness for purpose and the satisfactory quality of the haybob and upon the alleged breach by the defendant of his obligation to maintain the haybob in efficient working order and good repair under Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 ("the Regulations"). At trial Mr Ball abandoned his case based upon breach of contract, proceeding only upon the basis of an alleged breach of Regulation 5(1). The defendant asserted that, by reason of the relationship between Mr Ball and the defendant and the circumstances in which Mr Ball used the haybob, the Regulations did not on their true construction apply to the use of the haybob at the time of the accident. The judge rejected this argument. He held that the Regulations were applicable, but he then went on to hold that there was no breach of the defendant's obligation to maintain. Mr Ball appeals against that finding and the defendant cross-appeals on the basis that the judge should in any event have found that the Regulations did not apply.
The appeal and cross-appeal thus concern the scope and application of those Regulations.
The Regulations
The relevant regulations are Regulations 3 and 4 and Regulation 5(1).
Regulation 3 provides:
"(3) The requirements imposed by these Regulations on an employer shall also apply –
(a) to a self-employed person, in respect of work equipment he uses at work;
(b) subject to paragraph (5), to a person who has control to any extent of
(i) work equipment;
(ii) a person at work who uses or supervises or manages the use of work equipment; or
(iii) the way in which work equipment is used at work,
and to the extent of his control.
(4) Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking, whether for profit or not.
(5) The requirements imposed by these Regulations shall not apply to a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire-purchase agreement."
Regulation 4(1) provides:
"(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
….
(4) In this Regulation 'suitable' –
(a) … means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person …"
Regulation 5(1) provides:
"(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."
The Relevant Facts
There were issues at trial as to the contractual relationship between Mr Ball and the defendant and whether or not the defendant had sufficient control of the haybob to render the Regulations applicable to him: see regulation 5(3)(b). Having reviewed the facts, the judge found (as indeed the parties agreed) that the defendant was contractually engaged to provide his specialist services in mowing various of Mr Ball's fields, for a reasonable sum per acre and per bale, and that it was implicit in the hire of the defendant's services that he would bring and use his machinery including the haybob. The judge also found that the defendant worked at Mr Ball's farm (assisted at times by Mr Ball) until the day before the accident, Saturday 17 July 1999. However, because the defendant was unable to work on Sunday 18 July, he permitted Mr Ball to use the haybob as part of the contractual arrangement between them. Although the defendant was absent on Sunday when the accident happened, he retained control over the haybob for the purposes of the Regulations because his permission was specific as to who was to use it, where and when it was to be used, and what it was to be used for. It was conceded by the defendant that, if the evidence justified such a finding, then the Regulations applied to him. However, the effect of the evidence was disputed.
As to the circumstances of the claimant's accident, he was engaged in adjusting one of the tines on the machine. Each of the tines was held in position on a bracket (attached to the tine mounting shaft) by a stiff helical coil spring about 50mm in overall length and 23mm in overall diameter. The diameter of the wire from which each spring was made was about 2mm. At one end of the spring a looped section was engaged in a 'roll-pin' and the other end (the 'tag end') was designed to engage in either of two small holes (an outer hole and an inner hole) in the horizontal portion of the tine bracket. In the course of ordinary operation of a haybob, when the operator wishes to change the operation to be carried out, it is necessary to adjust the spring from the outer to the inner hole or vice versa. In order to adjust the tines by moving the spring from one hole to the other (he could not remember which) Mr Ball, acting quite properly and as required by the working adjustment he was making, pulled back on the second pair of tines, at which moment the tag end of the expanding spring which had been engaged in the tine bracket hole, fractured. It ricocheted from some part of the machine or from the adjacent pneumatic tyre and entered Mr Ball's left eye.
Both Mr Ball and the defendant, supported by the joint expert evidence of a consulting engineer, Mr Warman, asserted that it was a common occurrence for tine-mounting shaft coil springs to fracture, usually at the tag end. This was confirmed by the suppliers of the machine. It was also common ground that failure of the coil spring could occur during normal working operation of the haybob as well as during adjustment, as in Mr Ball's case.
At paragraph 6.5 of his report Mr Warman gave evidence as to the occurrence of the accident (which evidence was plainly accepted by the judge) as follows:
" … the probability is, when it [the tag end of the material spring] broke it was ejected from beneath the bracket rather [than] from above it. Because the Claimant's head was positioned above and behind the spring, for it to have adopted a trajectory which projected into the Claimant's left eye, it must first have ricocheted. The Claimant says that he did not see the fragment before it struck him and he is therefore unable to say on which surface it might have ricocheted. However, the likelihood is that the surface was either the adjacent pneumatic tyre or a metallic part of the equipment. The evidence is that, normally when a coiled spring fails at the tag end, the small broken fragment is ejected harmlessly onto the ground. Indeed this is the outcome which I would have anticipated, bearing in mind the geometry of the spring and its mounting."
He added a comment, which plainly usurped the function of the judge, to the following effect:
"In my opinion, even though there was a foreseeable risk of the torsion spring fracturing, it cannot reasonably be said that there was a foreseeable risk that the tag end would strike the claimant in the eye and cause him injury."
Mr Warman added that, had Mr Ball been wearing goggles, the probability was that he would not have suffered injury. However, he stated that it would be most unusual to find a farmer who thought it necessary to protect himself in this way when adjusting the tines of a haybob.
There was also evidence from a metallurgist Mr Moore. His evidence (which was agreed) was that, if the pin had been in a position described as the 'inner position' the locating hole for the tag end of the torsion spring would have been below the pin and prevented from ejecting upwards. However, if the pin had been in the 'outer position' the locating hole for the tag end of the torsion spring could have been ejected upwards. Mr Moore accepted that on the evidence the former was more likely to have been the case.
The judgment below
I...
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