British Waterways v Royal & Sun Alliance Insurance Plc
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] EWHC 460 (Comm) |
| Docket Number | Case No: 2009 Folio 1276 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 March 2012 |
[2012] EWHC 460 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Burton
Case No: 2009 Folio 1276
MR DANIEL SHAPIRO (instructed by Shook, Hardy & Bacon Intl LLP) for the Claimant
MR JEFFREY TERRY (instructed by DWF LLP) for the Defendant
Hearing dates: 21, 22 and 23 February 2012
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Approved Judgment
On 1 December 2004, Mark Wells and his son Luke died, when the Ford New Holland 2120 tractor (with attached Bomford Turner B315 hedge-cutter) ("the Tractor"), in which they were reversing along part of the towpath of the Kennet and Avon Canal between Bridge 111 and Bridge 110 ("the Towpath"), toppled into the river. No one saw this happen, but it was at about 2:30pm when a canoeist saw part of the tractor and hedge cutter protruding above the water line of the canal, and the last people to see them were, respectively, on a run along the canal at about 12:45 and looking down from Bridge 111 at about 1pm. It was, upon examination, clear that the two men had been inside the Tractor, reversing away from Bridge 111 (there being no continued access for the Tractor on the Towpath past that bridge) and that the bank had collapsed under the Tractor as it travelled too near to the edge.
The two men, father and son, were independent contractors, in business as Mark Wells Fencing, supplying their services to the Claimant, a public corporation established under the Transport Act 1962, amongst whose responsibilities was the routine maintenance of the hedgerows, plants and shrubberies along the towpaths of the canal, and in doing so using the Claimant's tractor and hedge cutter. As will appear, they were substantially to blame for the accident themselves at least because (i) they should not have driven the Tractor (which was 1695 mm wide plus 250 mm for the hedge cutter) along that part of the towpath, which did not allow for a sufficient clearance (the Claimant's Safety Bulletin 6 provided that the minimum distance between any vehicle or heavy plant and the canal edge should be 1.3m) and (ii) they should not have been in the Tractor together: the cab was designed for a single person only and there was a sign in the cab stating that one person only should ride in the cab. However the Health and Safety Executive ("HSE") took the view that the Claimant had committed an offence contrary to s33(1)(a) of the Health and Safety at Work Act 1974 ("the 1974 Act"), in that they failed to discharge the duty imposed upon them by s3 of the Act to "conduct [their] undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in [their] employment who may be affected thereby are not thereby exposed to risks to their health or safety", and the Claimant was so charged, the particulars being "in that the practices adopted for the use of tractors on the said towpath for construction, maintenance and cutting undertaken by contractors, including Mark Wells and Luke Wells, had not been suitably assessed and were unsafe".
The Claimant was committed from the Swindon Magistrates Court to the Swindon Crown Court. A "Friskies Schedule" (so called because its regular preparation in such cases has resulted from the recommendations of the Court of Appeal in the case of R v Friskies Pet Care UK Ltd [2002] CAR(S) 401) was agreed between the parties. The nub of the Schedule was as follows:—
"6. … British Waterways … issued a document entitled "Safety Bulletin 6" which deals with general considerations for site access, requirements of vehicles and ride-on equipment used on towpaths and the consideration of towpath/canal walls in terms of supporting any load from equipment, plant and vehicles.
7. Safety Bulletin 6 requires
•Risk assessments to be carried out prior to the use of ride-on equipment, and
•in relation to the use of vehicles on the towpath, it requires that "the minimum distance should be 1.3 metres from the canal edge for any vehicle or heavy plant/equipment", and where this requirement cannot be met, a specific strength/stability assessment by a waterway engineer must be undertaken.
8. Safety Bulletin 6 is regarded by British Waterways as the benchmark guidance for the operation of cutting on the towpath.
9. Safety Bulletin 6 was distributed in hard copy format by post to over 200 people, including the Waterway Supervisor for the Kennet and Avon Canal. The requirements of Safety Bulletin 6 had been implemented in relation to the Gloucester and Sharpness Canal but, despite being distributed to individuals at the Kennet and Avon, the requirements were not met in this instance and some employees were unfamiliar with its content.
…
14. At the time of the incident, the primary control on the use of equipment on the towpath was left to the discretion of the contractors. British Waterways had undertaken no surveys to determine the width of the towpaths on the Kennet and Avon Canal and was therefore not in a position to adequately control the equipment. It was reasonably practicable for British Waterways to undertake such surveys as these had been undertaken by those in control of the Gloucester and Sharpness canals, which had adopted a procedure in line with Safety Bulletin 6.
15. It was known to British Waterways that unsupported canal banks erode leading to weakening and/or collapses. British Waterways therefore carried out monthly length inspections from the towpath in addition to principle and intermediate inspections. However, British Waterways failed to reassess the risks associated with working with equipment on the towpath, despite knowledge of previous incidents.
16. Evidence suggests that on the day of the accident the tractor and Mark and Luke Wells accessed the towpath via the gate at Bridge 110 and then travelled along the towpath towards Bridge 111.
17. There is no suitable exit from the canal towpath at Bridge 111, so to exit the towpath they would have had to reverse back along the towpath all the way to Bridge 110 or turn around at some point on the towpath.
…
2. Foreseeability
2.1 It was known to British Waterways that unsupported canal banks erode leading to weakening and/or collapses, hence British Waterways annual surveys from the canal.
2.2 British Waterways had knowledge of previous collapses leading to equipment entering the canal.
2.3 The creation of Safety Bulletin 6 recognised the dangers associated with using equipment on the towpath.
2.4 British Waterways failed to take full account of risks in its control that were clearly foreseeable.
3. Falling short of safety standards required
3.1 Despite knowledge of previous incidents, British Waterways failed to assess the risks associated with working with equipment on the towpath.
3.2 British Waterways had undertaken no surveys to determine the widths of the towpaths under its control on the Kennet and Avon canal and was therefore not in a position to control the use of equipment.
3.3 It was reasonably practicable for British Waterways to undertake such surveys as these had been undertaken by those in control of the Gloucester and Sharpness canals which had adopted a procedure in accordance with Safety Bulletin 6.
3.4 At the time of the incident, the primary control on the use of equipment on the towpath was left to the discretion of the contractors. Many of the contractors had not been provided with a copy of Safety Bulletin 6.
3.5 The risk assessments were not suitable and sufficient.
3.6 British Waterway employees were not aware of Safety Bulletin 6.
Craig Hunter (Supervisor)
Michael Hawkins (Operative)
3.7 British Waterways failed to ensure the hedge cutting process was operated, supervised and controlled in accordance with its own requirements specified in Safety Bulletin 6."
The Claimant pleaded guilty at the Swindon Crown Court and was fined £100,000, after a fully argued sentencing hearing in which the Prosecution and Defence Counsel both addressed the Judge at length.
Mark Wells' partner and Luke Wells' infant son and their estates ("the Trowbridge Claimants") sued the Defendant in the Trowbridge County Court. Their claims were not very sensibly pursued, as the pleadings alleged that the deceased were employees of the Claimant, which they plainly were not, but while those representing the Claimant as defendant in that case made such use of that error as they could, it was apparent that, at some stage prior to the trial, such pleadings would be bound to be amended. The Claimant, with the benefit of advice from leading Counsel and robust negotiation by its Solicitors, achieved a negotiated settlement with the Trowbridge Claimants, taking into account suitable discount for contributory negligence: the settlement figures, with which no issue is now taken, were £76,250 for Luke's son, £105,000 for Mark's partner and £3,954 for the estates, making a total of £185,204. In addition there were costs, to which I shall refer later.
The claim before me has been brought by the Claimant against the Defendant Insurers, Royal & Sun Alliance Insurance Plc, who were put on notice but did not and do not accept that the Claimant's claims are covered by the policy in question, being the Defendant's Fleetshield Policy.
The relevant clauses fall within Section 2 of the Policy " Liability to Third Parties". They are as follows:
" A. Cover
Sub-Section 1 – Indemnity to Policyholder
The Insurers will indemnify the Policyholder in respect of legal liability incurred for damages and claimant's costs and expenses in respect of accidental
(a) death of or bodily injury to any...
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