Hall v Jakto Transport Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,Lord Justice Mance,LORD JUSTICE MANCE,LADY JUSTICE SMITH,LORD JUSTICE CARNWATH,LORD JUSTICE PILL |
| Judgment Date | 09 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1327,[2005] EWCA Civ 538 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2005/0446,B3/05/0446 |
| Date | 09 November 2005 |
[2005] EWCA Civ 1327
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
His Honour Judge Robinson
BY 303698
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Carnwath and
Lady Justice Smith
Case No: B3/2005/0446
James Murphy (instructed by Dla Piper Rudnick Gray Cary) for the Appellant
Christopher Williams (instructed by Messrs L A Steel) for the Respondent
Introduction
This is an appeal against the decision of His Honour Judge Robinson, sitting at the Sheffield County Court on 17 th February 2005, in which he found the defendant, Jakto Transport Ltd, the appellant in these proceedings, liable to compensate the claimant/respondent, Derek Hall, for personal injuries sustained in an accident on 28 th September 2000, in the course of his employment as a HGV driver with the defendant.
The respondent alleged that the he had suffered injury while using a torque wrench to tighten wheel nuts on the vehicle he drove for the appellant. He contended that his accident had been caused by a breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998, which provides:
"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."
At the trial, it was not disputed that this regulation imposes an absolute duty on an employer who provides equipment for use by his employee. Nor was it disputed that the respondent had had an accident while using a torque wrench. The dispute arose as to the how the accident had happened. The respondent contended that the torque wrench malfunctioned while he was using it in a proper manner. The malfunction must have been caused by a defect (which the respondent could not identify), for which the appellant was liable under Regulation 5. The appellant contended that the wrench had not malfunctioned; it was not defective and the accident must have happened in some other way. It contended that the most probable explanation for the accident was that the respondent himself had caused it by the manner in which he had used the wrench – in other words by operator error. The respondent denied that. It was common ground (and the judge so directed himself) that the burden lay on the respondent to prove, on the balance of probabilities, that the accident had happened in the way that he alleged and was due to a hidden defect in the wrench.
The judge accepted the respondent's evidence as to the way in which the accident had happened. He found that the wrench had had a hidden defect, the nature of which could not be ascertained. He held that the defect constituted a breach of Regulation 5 and that the respondent's injury had been caused thereby. He found that the respondent had not contributed to the accident in any way. Following the judge's finding on liability, the parties agreed damages in the sum of £67,500. The appellant now contends that the judge's findings were wrong.
The Evidence—Common Ground
In the course of his employment as a HGV driver, the respondent often had to change wagon wheels using a torque wrench provided by the appellant. He was an experienced HGV driver and had been using tools similar to this torque wrench throughout his career. He had worked for the appellant for three years at the time of this accident and was thoroughly familiar with this particular wrench which had been in use throughout that time.
The torque wrench and the manner of its operation are illustrated in a series of photographs to be found in the Court bundle. The wrench was about 43 inches long. At its head was a socket which fitted onto the wheel nut. Within the head was a ratchet mechanism. To tighten a nut, the operator would fit the socket onto the nut and then lever the handle downwards to apply torque. Then he would raise the handle (the ratchet allowed this to happen without undoing the nut) and repeat the process until the required tightness was achieved. In order to prevent over-tightening, the wrench was set to achieve a required degree of torque. When that was reached, the handle would 'operate' or 'break' to an angle of about 20 or 25 degrees at a hinge part way along its length. The hinge was spring loaded and, after operation, the handle would return to its usual straight position.
It was not disputed that the respondent had an accident while using the torque wrench and that he sustained injuries to the lower right leg including fractures of the tibia, fibula and the fibular and posterior malleoli and associated soft tissue injury. The agreed medical reports did not throw any light upon the way in which the accident had happened.
Evidence—The Respondent's Account
The respondent said that when the accident occurred, he had successfully tightened 7, 8 or 9 of the 10 nuts of the wheel he was changing. The nut on which he was working was towards the top of the wheel. He claimed that, as he applied downward pressure to the handle of the wrench, the handle suddenly gave way and 'just went straight down' from about the 3 o'clock position to about the 5 o'clock position. He said that the wrench struck his leg and he fell over.
He was in severe pain and could not get up. He was lying on the floor with his head close to the wheel. His first thought had been the nut had broken but that was not so. The wrench was still attached to the wheel. The handle was pointing downwards in the 5 o'clock position. Colleagues came to help him and an ambulance was summoned. There was some conversation while he was on the floor and he said that his accident had been caused by the wrench giving way. The respondent said that, because there was a danger that the wrench might become detached from the nut, one of the colleagues took it off the wheel. Later, when he was being put in the ambulance, Mr Robinson, a tyre fitter, put the wrench back onto one of the nuts and was using or testing it.
The respondent claimed that the giving way or slip of the wrench must have been due to a hidden defect. He suggested a way in which a defect might have arisen. Some years previously, he had been employed by the National Coal Board and had used similar wrenches. He said that he had known of occasions when an intermittent fault of this kind had been caused by the penetration of dust into the ratchet mechanism. The wrench would give way and yet afterwards there would appear to have been nothing wrong with it. It was put to him that the expert engineer whose evidence was before the judge had said that this was not a 'reasonable' explanation for the accident because the environment at the appellant's premises was not dusty. The respondent said that it was quite dusty in the yard where his accident had happened. This was quite near a crusher plant. However, he agreed that it was nothing like as dusty as a coal mine.
It was put to the respondent that the accident had not happened in the way he claimed. Two propositions were put to him. It was suggested that there had been no abnormal slippage and the wrench had simply 'broken' at the hinge as it was intended to do when the appropriate torque had been reached. He had fallen over because he had been putting too much pressure on the handle. The respondent was adamant that this was not so. He said that he had not yet reached the stage in the tightening process when the handle would break. He could tell when the handle was about to break because the pressure required on it increased. Any experienced operator familiar with the wrench could tell when it was about to break. In any event, he was accustomed to the movement that occurred when the handle broke; the movement that caused his accident was different from that.
It was also suggested to the respondent that he had been using his foot to press down on the handle of the wrench and that his foot had slipped and caused him to lose his balance. The respondent denied that he had done any such thing.
The respondent's credibility was challenged on several grounds. It was put to him that he had given different accounts of the accident when he went to the hospital. Reliance was placed on the hospital notes. Also, it was put to him that his account of how the handle came to strike his lower leg was impossible. In due course, the respondent appeared to accept that he might have been wrong about that; he had thought that the handle had struck his lower leg but admitted that the pain he experienced might have resulted simply from falling over.
Evidence—The Appellant's Witnesses
There was no eye witness to the accident besides the respondent himself. The appellant called four witnesses. These were Messrs Bettinson, Hellewell, Robinson and Ramsden. The first three arrived on the scene, very shortly after the accident occurred. Mr Ramsden, the chargehand fitter, arrived a little later, shortly after the respondent had been taken to hospital.
Mr Bettinson, the Plant Manager, was the first to arrive. He agreed that the wrench was still attached to the wheel nut but said that it was not pointing downwards in the 5 o'clock position; it was horizontal in the 3 o'clock position. Moreover, he did not agree with the respondent that the wrench was removed from the nut for safety reasons. Mr Bettinson said that although the wrench was heavy and was a danger, it was left on because the appellant's staff needed to know where the respondent had been up to in the process of tightening the nuts. He said also that it was left on so that the wrench could be checked. He said that Mr Robinson used the wrench...
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