Al-Medenni v Mars UK Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,Lord Justice Dyson,LORD JUSTICE DYSON,LORD JUSTICE TUCKEY |
| Judgment Date | 18 July 2005 |
| Neutral Citation | [2005] EWCA Civ 1041 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2005/1081 |
| Date | 18 July 2005 |
[2005] EWCA Civ 1041
Lord Justice Brooke
Vice-President of the Court of Appeal, Civil Division
Lord Justice Tuckey
Lord Justice Dyson
B3/2005/1081
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH WYCOMBE COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
Royal Courts of Justice
Strand
London, WC2
MR DOMINIC NOLAN (instructed by Messrs Langleys Solicitors, Lincoln LN6 3JY) appeared on behalf of the Appellant
MISS CAROLINE HARMER (instructed by Messrs Baily Gibson, High Wycombe HP11 2AG) appeared on behalf of the Respondent
I invite Lord Justice Dyson to give the first judgment.
At all material times the claimant was employed as a packer, case fitter and machine operator at the defendant's factory in Slough. On 21st August 2002, in the course of her employment, she was injured when she was struck on the shoulder by a reel of wrapping paper weighing about 10 kilograms, which fell from above her as she went close to a machine called a GD1. She brought proceedings against the defendant. After a trial on liability, His Honour Judge Catlin, sitting at Reading County Court, gave judgment on 7th September 2004 in favour of the claimant and ordered damages to be assessed. But because the claimant had not succeeded on her case as pleaded and advanced at trial, he awarded her only 50% of her costs.
The defendant now seeks permission to appeal against the finding of liability. By her particulars of claim, the claimant alleged that the accident was caused or contributed to by the negligence of the defendants. Particulars of negligence were pleaded at paragraph 6 in these terms:
"The Defendants, their employees or agents were negligent in that they:—
6.1 Failed to make and keep safe for the Claimant a place in which she was working.
6.2 Failed to discharge the common duty of care to see that the Claimant was reasonable safe in using the premises, contrary to Section 2 of the Act.
6.3 Caused, permitted or suffered the roll of foil wrapping paper to come to be or to remain unsecured on the GD1 machine wherein it constituted a hazard.
6.4 Exposed the Claimant to a danger or a trap or a foreseeable risk of injury.
6.5 Caused permitted or suffered the Claimant to kneel in the aforesaid area when it was unsafe so to do.
6.6 Failed to warn the Claimant of the dangers of kneeling in the aforesaid area or otherwise prevent her from doing so.
6.7 Failed to take any or any adequate care for the safety of the Claimant.
6.8 By the servant or agent (Joginder Braich) who failed to secure the roll of foil wrapping paper on the GD1 machine, permitted or suffered the roll of foil wrapping paper to fall on to the Claimant without giving the Claimant any or any adequate or timely warning.
6.9 Failed to provide the Claimant safe and competent fellow employees."
Pursuant to the defendant's request, on 22nd August 2003 the claimant provided further information of her particulars of claim which included the following:
"2. From what precise point on the machine does the Claimant say the roll of wrapping paper fell?
Answer: The Claimant does not know the precise point on the machine from which the roll of wrapping paper fell, but speculates that it fell from the large spool on the machine indicated on the attached four copy photographs of the machine.
3. Precisely what was the Claimant doing on the machine at the time when she was struck by the falling roll?
Answer: The Claimant was kneeling on the ground immediately adjacent to the machine demonstrating to Joginder Braich how to operate the gear and the key in order to move the machine back into position after cleaning. Joginder Braich had been cleaning the machine but was unable to move it back into position thereafter and had requested the Claimant's assistance with this operation.
4. For what purpose does the Claimant say that Joginder Braich placed the roll of foil on the machine?
Answer: Only Joginder Braich can say what he had in mind when he placed the roll of foil on the machine. The Claimant speculates that Joginder Braich placed the roll of foil on the machine after he had completed cleaning the machine in order to make it ready for use by the machine operatives on the next shift."
By their defence the defendant denied negligence and alleged that the accident was caused by the claimant's own negligence:
"… in placing the roll of wrapping paper on the machinery in such a place or manner that it could and did fall upon her as she went about her work."
Witness statements were served which reflected the pleaded cases. In her witness statement, the claimant said that shortly before the accident she saw Mr Braich carrying rolls from the pallet to the GD1 machine that he had been cleaning, although she did not see him place the rolls on the machine. She denied placing rolls of wrapping paper on his machine or assisting him to do so. There came a time when, having cleaned his GD1 machine, he was trying to move it back to its correct position. He was unable to do so and asked the claimant for assistance. She went over to his machine and knelt on the floor. It was at this point that she was struck by the reel of wrapping paper. She said that the reel could not have been securely locked into position on the spindle.
In his witness statement Mr Braich said that he did not handle reels of wrapping paper and did not load any reel on to his machine, or indeed any other machine. His sole responsibility was for cleaning the machines. He did not see the reel fall from the machine. He did not see a reel on any part of the machine, and believed that the spindles on the machine were empty at the time. If the reel had fallen from the spindle on the machine he had been cleaning, it would have hit him as well.
In the course of her opening, Miss Harmer, who appeared for the claimant then as she has done today, made it clear that her case was that the reel had fallen because it had been wrongly placed on the machine (i.e. the spindle) by Mr Braich, and the defendant's case was that the claimant herself had placed the reel on the infeed conveyer to the machine. At one point in the opening, Mr Nolan intervened to say this (page 153, line 7):
"The issues have polarised very sharply, and although your Honour sees at the back of the court a large number of potential witnesses, my learned friend and I are in agreement that really it comes down to a very straightforward issue of fact. Mrs Al-Medenni has from the outside [sic] stated her case on the basis that not only did Mr Braich put the offending reel in the position in which it was in, from which she says it was dislodged so as to strike her shoulder—and your Honour may have had a quick chance to see the photographs—but she says that further he admitted to her specifically the accident to be his fault. If your Honour has seen Mr Braich's statement he denies that and that is where the issue is that your Honour is going to have to try."
A little later he said:
"… my learned friend and I are happy to indicate that it really comes down to that, if I may put it this way, does the court accept Mrs Al-Medenni's evidence that Mr Braich put the reel on the machine and accepted that he had done so, thereby causing her accident?"
The judge then intervened, and the following exchange took place between him and Mr Nolan (page 153, line 29):
"JUDGE CATLIN: There is another possibility, is there not, and that is, apart from the claimant being responsible for it, that if the court found—and I do not think the claimant says that she saw the other man actually place the roll on the machine, so she is surmising, because he was the only one there, that it was him. But there are also four other candidates in the frame, are there not?
"MR NOLAN: No, not so, because—
JUDGE CATLIN: Why?
"MR NOLAN: From the outset, because of the way she puts her case, Mrs Al-Medenni has said it was Mr Braich, and your Honour will recall there are two references in her statement to her saying that Mr Braich—
JUDGE CATLIN: Yes, but she did not see him actually do it. I do not want to say too much at this stage because obviously people coming to give evidence might pick up on what I am saying and I do not want that to happen, but I do not see how you can rule out—I have no view about what the likely outcome of hearing evidence is going to be but I do not see how...
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