Ellis v William Cook Leeds Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Moore-Bick,Lord Justice Chadwick |
| Judgment Date | 01 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1232 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2007/0691 |
| Date | 01 November 2007 |
[2007] EWCA Civ 1232
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE LANGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice May and
Lord Justice Moore-Bick
Case No: B3/2007/0691
Mr W Evans (instructed by Messrs Halliwells) appeared on behalf of the Appellant.
Mr P Grundy (instructed by Messrs Rowley Dickinson) appeared on behalf of the Respondent.
Philip Ellis, the claimant, was injured quite badly at work on 5 April 2004. It is nice to be told this morning that he has recovered at least sufficiently to return to work.
He was employed by the defendants, William Cook Leeds Ltd, as a shot blast man. He was of considerable experience and training. He was then aged 38, and had worked as a shot blast man since January 1997. He had been in the defendants' employment since September 1989.
One difficulty with this case is that Mr Ellis remembers nothing of the accident itself, and although there were others working with him or in the vicinity, no one who gave evidence at the hearing before HHJ Langan QC in the County Court at Leeds in February 2007 actually saw the accident itself, or exactly how Mr Ellis was injured. So when HHJ Langan came to give his judgment on 10 February 2007, he had to reconstruct by inference from rather meagre direct evidence why and how the accident occurred. Furthermore, there was no engineering or other expert evidence to help the court, and I infer from references in the judge's judgment that he rather regretted that a District Judge had been persuaded by the defendants not to permit expert evidence. Mr Evans, on behalf of the defendants, said this morning that the pleaded case did not require expert evidence, but I am not convinced that that is really right.
Mr Ellis's job included moving steel castings from the full heat treatment area of the defendants' works to the blast area, eventually to be put into the blast furnace. The castings were loaded onto temper trays. The trays rested on racks rather like railway lines, which rested on a series of crossbeams. There were gaps between each rack, and between the racks and the floor. A blast operator moved the tempered trays from the racks to the blast furnace, using an overhead crane operated by a hand held control at the end of a hanging cable. This enabled the crane operator to move about whilst he was doing it. The crane had four chains attached together at the higher level, with a substantial hook on the end of each chain. The hooks hooked into eyeholes at each corner of the temper tray. The castings did not always rest securely on the temper tray. They might shift and fall off, and if this happens they have to be replaced. Apparently, something like this happens quite often. If it is small enough, a dislodged casting may be manhandled back onto the tray, but heavier dislodged castings have to be moved by other means, usually apparently by using the overhead crane. If a casting falls from a tray which is resting on the racks, it may fall into a gap between or under the racks; and it was accepted that if a fallen casting jammed underneath or between the racks, it would be extremely foolish for the operator to try to lift it using the crane.
Mr Ellis's accident happened at about 11.20 in the morning on 5 April 2004. A casting had fallen from a temper tray on one of the racks in the blast area into the space beneath the racks. The casting was a laser spindle weighing about 50 kg, too heavy to lift easily by hand, but not a heavy object for the crane. The casting was rather in the shape of a traffic cone, having a rectangular flange base, and narrowing from base to top. The spindle was hollow with a round aperture at its top. The aperture had a diameter of 44 mm, rather less than 2 inches. At this point, there was nothing in the nature of a lip or gripping point. Mr Ellis went to pick up the fallen spindle with the crane. He insisted in his evidence that it was not jammed when he went to pick it up, but a little later in cross-examination he said that he did not remember whether it was jammed or not. His evidence was that he attached one of the hooks from the crane to the spindle end, this evidence being understood to mean that he attached a hook at the end of one of the chains to the narrow end of the spindle, I suppose by putting the hook into the aperture at that end. He had done similar operations on many previous occasions, and never had any difficulty. He then pressed the button on the pendant control to raise the casting to put it back on the tray. That is the last he remembers.
It is evident that he was struck in or around the face by the hook that he had just attached to the casting, or possibly the chain. He was knocked backwards, lost consciousness, and was badly injured in a number of respects. No witness actually saw the accident, although one or more witnesses saw the chains of the crane swinging violently immediately after it.
The evidence of the detailed cause of the accident is thus rather sparse, and there was, as I say, no expert evidence to help. After the accident, the spindle casting was found to be lying on the floor beneath the racks. The hooks from the crane were submitted to their manufacturer for inspection, and one of them was found to be bent beyond a normal tolerance. The deformation was expressed as 10 percent, but it is not clear what this was a percentage of. It is a reasonable inference that it was this hook which Mr Ellis had attached to the casting. There was general evidence to the effect that the hooks were designed for a load in excess of 5 tons, and that the crane was capable of lifting that weight or more. There was also strange evidence from Mr Ellis that if you took your finger off the crane's operating button, the crane did not stop moving immediately, but kept going for an inch and a half or so. It seems to me highly unlikely that the crane was able to continue exerting its full lifting power after the operator had taken his finger off the relevant button.
In general, it is a reasonable inference that the spindle casting was or became jammed, and there was evidence (for example, from Mr Jones) that it was seen to be jammed after the accident. The judge rejected possibilities that one of the three hooks caught on one of the racks for which there was no evidence, that the hook was defective, and that the spindle casting was already jammed when Mr Ellis attached the hook. He accepted Mr Ellis's evidence here that it was not. He accepted and found as a fact a fourth possibility that the spindle became jammed under one of the racks in the course of the lift. It must, I think, have jammed at some stage, since its weight of 50 kg or so was comparatively small in relation to the lifting capacity of the crane, and the inference is that the operation in which Mr Ellis was injured had caused the deformation of the crane's hook. In reaching this conclusion, the judge rejected as mistaken evidence of Mr Ellis that the racks themselves were not attached to the floor.
The Particulars of Claim alleged numerous breaches of regulations. The judge referred to two of them in particular: Regulation 4(3) of the Provision and Use...
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