Couzens v T McGee & Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Wilson,The President of the Family Division |
| Judgment Date | 19 February 2009 |
| Neutral Citation | [2009] EWCA Civ 95 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2008/1616 |
| Date | 19 February 2009 |
[2009] EWCA Civ 95
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
MR RECORDER HOPMEIER
6WT01688
The President of the Family Division
Lady Justice Smith and
Lord Justice Wilson
Case No: B3/2008/1616
Mr Simon Perhar (instructed by Messrs Stone Rowe Brewer) for the Appellant
Mr Angus Withington (instructed by Messrs Housemans) for the Respondent
Hearing date : 4 February 2009
Lady Justice Smith:
Introduction
This is an appeal from the order of Mr Recorder Hopmeier sitting in the Wandsworth County Court on 20 June 2008. He dismissed the appellant's claim for damages for personal injuries sustained on 3 May 2003 when the tipper lorry he was driving overturned while he was leaving the M1 Motorway at Junction 6. It was common ground that the vehicle overturned because it was going too fast. It was the appellant's case that he was going too fast because he had been unable to move his right foot from the accelerator to the brake. That was because a piece of angle iron used by him as a makeshift tool which he kept in the side pocket of the driver's door had caught in his trouser leg. The angle iron projected upwards beyond the edge of the side pocket. He blamed his employers for this accident because, he said, they had not provided a suitable place in which he could safely keep this makeshift tool.
The respondent's primary case was that the accident had happened simply because the appellant was driving too fast and that it had not been caused by any makeshift tool catching his trouser leg. However, in the end, the recorder accepted the appellant's case as to the happening of the accident. Thus the claim turned on whether the appellant could prove that the respondent employer had been in breach of duty in respect of the storage of the makeshift tool in the pocket of the driver's door. The recorder held that there was no breach of duty and dismissed the claim. I granted the appellant permission to appeal on one ground only, that it was arguable that the recorder had erred in his approach to the Provision and Use of Work Equipment Regulations 1998 on which the appellant relied.
The facts
At the material time, the appellant had been employed by the respondent for between 18 months and two years. He drove a Volvo tipper lorry. The respondent had a contract for the removal of spoil from the Wembley Stadium construction site. Each day, the appellant would move several loads of spoil from Wembley to a dump not far from Junction 6. The respondent provided various items of equipment for the use of their drivers. These included a shovel for cleaning out any spoil which remained in the truck after the bulk had been tipped out.
It was the appellant's case that, in addition to the shovel, the drivers needed a smaller, sharper tool for a variety of tasks, such as scraping in the corners of the truck, removing mud from the locking mechanism, from the tyres before driving on public roads and from their boots before getting into the cab. The appellant said that, for all these purposes, he used a piece of angle iron. This was scrap metal which he had picked up from the Wembley site. It was 16 to 18 inches long and was L-shaped. He kept it in the pocket of the driver's door because, he said, there was nowhere else suitable in the Volvo lorry. In particular, there was no toolbox. Although the appellant's statement implied that he had been using this makeshift tool (and keeping it in the door pocket) for a considerable period of time, he did not specify when he had begun to use it and it appears that he was not asked about that in his oral evidence.
The appellant also said that, for these scraping tasks, some drivers used an old paint or wallpaper scraper; others used a small trowel. In general, they kept these small items in the driver's door pocket. On the pleadings, the respondent's case was that a scraping tool was not necessary and its managers or supervisors were unaware that the men used such tools. However, in evidence Mr Hennessy, the respondent's health and safety director, conceded that he was aware that many of the drivers used paint scrapers or trowels. He was also aware that they were kept in the door pocket. However, he said that he had never seen a driver use a piece of angle iron and he had no idea that the appellant did this or that he kept it in the door pocket. He said that the lorries were inspected regularly. Had he known that the appellant was keeping a piece of angle iron in the pocket, he would have stopped him as he would have regarded the practice as dangerous. He thought that this item could have been safely stored in the foot well on the passenger side. Alternatively, he thought it could even have been safely kept in the door pocket provided that the longer limb of the L was pointing towards the rear of the vehicle. It appears that the appellant positioned it the other way round.
The appellant said that, about a month before his accident, an incident had occurred in which the angle iron had caught in his trouser leg and he had been unable to move his foot from the accelerator. It appears that he extricated himself on that occasion without much difficulty. He did not report that event to the respondent. Nor did he alter his practice of keeping the angle iron in the door pocket.
The judgment
When directing himself as to the law, the recorder dealt first with regulation 4 of the Provision and Use of Work Equipment Regulations 1998. Regulation 4 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.
(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.
(4) In this regulation “suitable” means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.”
Regulation 2 (headed Interpretation) provides at 2(i) that:
“'use' in relation to work equipment means any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning;
'work equipment' means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not;”
Regulation 3 (headed Application) provides at 3(2):
“The requirements imposed by these regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work.” (emphasis added)
The recorder accepted that the angle iron was a tool and that it fell within the definition of work equipment. The respondent had not provided it but, even so, regulation 4 would apply if it was 'used' by an employee at work. At that stage, the recorder cited a passage from Mason v Satelcom Ltd and others [2007] EWHC 2540. In that case, the appellant went out to work at different sites. Sometimes he needed a ladder. The respondent did not provide a ladder but left the appellant to use whatever was available on the particular site. On the material occasion, the appellant fell from the ladder because it was unsuitable; it was too short. His Honour Judge Reddihough, sitting as a deputy High Court judge said, at paragraph 52 of his judgment:
“The fact that the defendants chose to leave the claimant to use his initiative to select his means of access to equipment he had to work upon and to choose or obtain work equipment for himself cannot, in my judgment, absolve the defendants of the consequences of their breaches of the regulations and cannot provide any basis for concluding that those breaches were not causative of the claimant's accident.”
The recorder also directed himself as to the extended meaning of the word 'use' and was prepared to assume (although in some doubt) that 'using' the tool included transporting it and that therefore storing it in the door pocket could amount to using it.
At paragraph 29 of his judgment the recorder said:
“The question, it seems to me, that arises in the present case is whether it was reasonably foreseeable to the defendants that the claimant would choose a type of angle iron as the claimant did: whether it was reasonably required; and perhaps most importantly, whether it was reasonably foreseeable that he, the claimant, would store it in the driver's pocket in the way that it was stored.”
At paragraph 30, the recorder considered the meaning of 'suitability' and referred to regulation 4(4). He then said:
“That was an absolute and continuing duty that extended to every aspect related to their work. In that context the issue of foreseeability became relevant. The obligation was to anticipate situations that might give rise to accident. An employer was not permitted to wait for accidents to happen. That approach was underlined by regulation 4(2) which required that a risk assessment be carried out before work equipment was used by or provided for persons whose health and safety could be at risk.”
The recorder then made his findings of fact. He accepted that the accident had happened as...
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