Patrick O'Gara v Paul John Construction (Leicester) Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 02 August 2005 |
| Neutral Citation | [2005] EWHC 2829 (QB) |
| Docket Number | SQ204407 |
| Court | Queen's Bench Division |
| Date | 02 August 2005 |
[2005] EWHC 2829 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Transferred from Stoke on Trent County Court
TO THE ROYAL COURTS OF JUSTICE
Simon Brown QC
Sitting as a Deputy High Court Judge
SQ204407
Introduction
This is a Judgment in a personal injury action transferred from the Stoke on Trent County Court to the High Court sitting in the Royal Courts of Justice in London.
The action arises out of an accident at work on 24 th June 1999 when a dumper truck overturned onto the Claimant's left wrist and hand and severely injured him whilst he was reversing the dumper during the course of his employment with the Defendants at house building plot 74 Stone Croft, Watling Street, Wilnecote, Tamworth in Staffordshire.
At the outset of the trial hearing on 11 th April 2005, quantum of damages was agreed at £185,000, subject to liability being decided by the Court.
At the hearing, the Court heard evidence from the Claimant himself; Mr Graydon, the former Training & Safety Manager of the Defendant; Mr Morgan and Mr Hallam who are expert consulting engineers called respectively on behalf of the Claimant and the Defendants.
The Court was also provided with the factual statement of Mr Yoxall, the investigating HM Health & Safety Inspector, his Investigations Overview and contemporaneous photographs within one of two files containing documents largely irrelevant to the issue of liability following careful and helpful refinement of issues by Counsel at trial.
At the conclusion of the evidence, the issues on liability could be reduced as there was no dispute between the parties upon the following relevant matters:
a. the Claimant (dob 14 th January 1936) was a Groundworker in the construction industry with 45 years experience and 30 years as a dumper driver;
b. the Claimant was recently trained; on 10 th May 1999 he attended a Forward Tipping Dumper course of the Defendants. The contents of the course being unspecified at trial;
c. there was no evidence that any site risk assessment or ongoing assessments had actually taken place;
d. there was no evidence of any mechanical defect of the dumper truck; it had recently been rebuilt and refurbished by its manufacturers, Mortimer Manufacturing Limited, as invoiced on 11 th February 1999;
e. there was no seat belt issue; the dumper was fitted with a seat belt and it was not being worn by the Claimant at the time it turned over. This seat belt issue, whilst ostensibly the focus of the investigation by the HMSE Inspector according to his Investigations Overview, became irrelevant to the issues on liability to be determined by the Court following the Engineers' Joint Statement of 23 rd & 27 thFebruary 2004/27February 2004 that "the wearing of the belt would have been unlikely to prevent the Claimant's injury".
The first issue to be determined by the Court is what in fact caused the dumper to turn over and thereby injure the Claimant before consideration can usefully be given to the issues of duty, breach of duty, causation and damage.
Factual causation.
The only evidence on how the accident occurred comes from the Claimant himself, agreed measurements and the contemporaneous photographs of the overturned dumper shortly after the Claimant had been released and removed to hospital.
There is no dispute on the following relevant matters:
a. During the morning of 24 th June 1999, the Claimant was transporting topsoil 200–300 yards from a spoil to the back garden of the plot of 74 Stone Croft using the 6'6" wide dumper truck.
b. Mr Peniata was operating a JCB loading the dumper, journeying to the back garden and then spreading the deposited piles of topsoil.
c. The Claimant in tandem with Mr Peniata had probably made 10–12 journeys onto the site during the morning. They had driven over the tarmac forecourt of the house beside the garages and then down a man made rubble 10' wide 22 degree ramp beside the house to gain access to the back garden.
d. At around 11.30am, sufficient topsoil had been deposited in the back garden and the Claimant was required to take his load back to the spoil.
e. The Claimant either reversed up the ramp or turned in the garden and headed up the ramp.
f. Whilst the Claimant was reversing the dumper upon the forecourt either as the culmination of his reversal up the ramp or whilst turning around as part of a manoeuvre in the mouth of the ramp, the front nearside wheel of the dumper went over the unprotected edge of the forecourt into a depression at the edge of the ramp.
g. The dumper toppled over onto its left hand side and onto his left wrist and hand thereby injuring him.
The precise recollection of the Claimant is inevitably and understandably rather dimmed; it is now nearly 6 years since the accident and 2 years since his brief court statement dated 19 th May 2003. Furthermore, the accident was a grievous one and a great surprise for him especially when he was looking backwards whilst reversing and it was his front nearside wheel out of his vision that suddenly went over the edge.
The contemporaneous photographs of the HSE, however, provide reliable confirmation that:
a. there is an unprotected edge to the forecourt on either side of the 6'6" ramp;
b. there is a drop of approximately 4' from the level of the forecourt to the exposed base of the foundations of the house (measured off the standard brickwork of the house) beside the ramp near where the back nearside wheel of the dumper lay after the accident;
c. there is a drop of noticeable but undetermined depth on the other side of the ramp in the vicinity of where the front nearside wheel was at the time of the accident.
It is strictly otiose to determine whether or not the Claimant reversed or drove forwards up the ramp as there is no doubt that he was reversing substantially on the forecourt at the critical time of the accident judging from the incontrovertible evidence of the post accident position of the dumper. It matters not whether this was as a culmination of driving up the ramp or as manoeuvring or turning whilst in the forecourt at the mouth of the access way as each of these actions were ordinary incidents of driving a dumper truck to and from the site and upon it as his place of work.
On the basis of the evidence of the Claimant and the photographs, I am satisfied, on the balance of probabilities, that that this accident occurred when the front nearside wheel went over the unprotected edge of the tarmac forecourt beside the ramp that was built up by about 4' at the top over its 6'6" width whilst reversing during turning in the forecourt at the mouth of the access way.
Duty
It is critical to remember that the relationship of Claimant and Defendants in this case was one of employee and employer as distinct from one of visitor and occupier or of road user and highway authority where the general public statutory duties owed are imposed by the Occupiers Liability Act 1957 and the Highways Act 1980 where lesser common law duties of care and more restricted statutory duties are owed respectively.
There is no dispute here that the Construction (Health Safety & Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998 apply in this case.
These regulations firmly impose onerous statutory duties upon employers to provide a safe place of work, methods of working and equipment to their employees, such as the Claimant. The Defendants were in a position to have "control" over all those elements and under a statutory duty to have compulsory insurance for the health and safety of their employees under these regulations, pursuant to Section 1 of the Employers Liability (Compulsory Insurance) Act 1969.
The Construction (Health Safety & Welfare) Regulations 1996 require the employer to provide safe and suitable places of work and access & egress thereto "so far as is reasonably practicable". The Provision and Use of Work Equipment Regulations 1998are even more prescriptive and indeed absolute in terms as there is no proviso for "reasonable practicability".
In the light of the earlier findings on causation of the accident, the relevant duties allegedly owed were under Regulation 5(2) of the Construction (Health Safety & Welfare) Regulations 1996 and Regulation 4(2) of the Provision and Use of Work Equipment Regulations 1998. Either the place of work was unsafe or the equipment used was unsuitable for the site.
Breach of Duty
The issues between the parties are:
a. Was the construction site "unsafe"? If so, did the Defendants do what was "reasonably practicable" to make it safe in accordance with their duties under Regulation 5(2) of the Construction (Health Safety & Welfare) Regulations 1996;
b. Alternatively, was the dumper truck "unsuitable" for work on this site under Regulation 4(2) of the Provision and Use of Work Equipment Regulations 1998.
Mr BA Morgan; C.Eng., M.I. Mech. E of Morgan Finch & Partners Limited, the expert called by the Claimant, is an experienced engineer who had spent 5 years with the HSE on construction sites. He was of the opinion that the post accident photographs of the site depicted a "bit of a mess" and a "shambles". He drew the Court's attention to the fact that the ramp was narrow, did not splay at the mouth and had an unprotected sharp drop at the edge at its interface the forecourt. He was of the opinion that this was "potentially dangerous" i.e. "unsafe", because it must be anticipated that dumper trucks would be manoeuvring and reversing in that area. He believed that it would have been quite simple and inexpensive i.e. "reasonably practicable" for a timber "baulk", a railway sleeper or edging kerbs to have been installed as edge protectors.
In his letter of 27 th May 2004,...
To continue reading
Request your trial
-
Table of cases
...NSWCA 371 III.22.45 Ofulue v Bossert [2009] 1 AC 990 III.26.98, III.26.99, III.26.101 O’Gara v Paul John Construction (Leicester) Ltd [2005] EWHC 2829 (QB) III.21.12, III.21.25 Ogilvie Builders Ltd v Glasgow District Council (1994) 68 BLR 122 II.6.41, II.11.134, II.13.31, II.13.114, II.13.1......
-
Employment, health and safety
...and safety statutes and regulations are discussed later in this chapter. 48 See O’Gara v Paul John Construction (Leicester) Ltd [2005] EWHC 2829 (QB) at [38]; Chandran a/l Subbiah v Dockers Marine Pte Ltd [2009] SGCA 58 at [31]–[33]. 49 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA ......