Peter Michael Brumder v Motornet Service and Repairs Ltd (First Respondent) Aviva Insurance Ltd (Second Respondent)

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Lord Justice Longmore,Lord Justice Ward
Judgment Date16 April 2013
Neutral Citation[2013] EWCA Civ 195
Docket NumberCase No: B3/2012/1597
CourtCourt of Appeal (Civil Division)
Date16 April 2013

[2013] EWCA Civ 195

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRIGHTON COUNTY COURT

His Honour Judge Levey

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Longmore

and

Lord Justice Beatson

Case No: B3/2012/1597

Between:
Peter Michael Brumder
Appellant
and
Motornet Service and Repairs Ltd
First Respondent

and

Aviva Insurance Ltd
Second Respondent

Anthony Coleman (instructed by Wannops LLP) for the Appellant

Neil Moody QC (instructed by Greenwoods Solicitors) for the Respondents

Hearing date: 7 February 2013

Lord Justice Beatson

Introduction

1

The question which falls for decision in this appeal is whether the sole director and shareholder of a company who suffers personal injuries as a result of the breach by the company of an absolute statutory obligation to maintain equipment in efficient working order can bring a claim against the company even though he was in breach of his obligations to the company to exercise reasonable care to enable the company to fulfil that obligation, and the company could only do so vicariously through him.

2

Mr Peter Brumder, the appellant, is the sole director and shareholder of Motornet Service and Repairs Ltd, a company specialising in servicing vehicles and putting them through their MOT inspections. The company is the first respondent to this appeal. Its insurer, Aviva Insurance Ltd, is the second respondent. On 8 November 2008 Mr Brumder's left ring finger was severed from his hand while he was trying to climb down to ground level from a raised hydraulic ramp in the first respondent's workshop after the compressor in the ramp mechanism failed. An attempt to reattach the finger was unsuccessful. He appeals against the order of His Honour Judge Levey in the Brighton County Court dated 12 June 2012 dismissing his claim for damages for the injuries sustained by him. The learned judge did so "on account of finding that [Mr Brumder] was 100% contributorily negligent".

3

The judge held:

(a) The first respondent was in breach of its obligation under regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 SI 1998 No. 2306 ("the 1998 Regulations") to ensure that work equipment "is maintained in an efficient state, in efficient working order and in good repair";

(b) The defect in the compressor was causative of the accident and therefore there was "primary liability" on the part of the first respondent; but

(c) The appellant, who had not given any consideration to health and safety matters in the workshop, including the need to comply with the 1998 Regulations, was responsible for the breach, and 100% contributorily negligent.

4

In this appeal there is common ground on two matters. The first is that the judge correctly held that the obligation imposed by regulation 5(1) is an absolute and continuing one: see Stark v Post Office [2000] ICR 1013 on the identically worded predecessor to Regulation 5(1) in the 1992 Regulations. The second is that, having made a finding of "primary liability" by the first respondent to the appellant for breach of its duty under regulation 5(1), in the light of Pitts v Hunt [1991] 1 QB 24 and Anderson v Newham CFE [2002] EWCA Civ 505, the finding of "100% contributory negligence" was wrong in principle. This is because, as Beldam LJ stated in Pitts v Hunt at [1991] 1 QB 24 at 48, to hold that a person is "himself entirely responsible for the damage effectively defeats his claim" and because apportionment under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 ("the 1945 Act") presupposes fault on both parties.

5

The positions of the parties as to what follows, however, differ radically. Mr Coleman, on behalf of the appellant, submitted that the first respondent was liable and there should either have been no apportionment or only a modest deduction for contributory negligence on the part of the appellant. He maintained that the finding of 100% contributory negligence was wrong on the facts, and that the judge was not entitled to conclude that the accident would not have occurred had appropriate health and safety measures, in particular an assessment of the risk and routine inspection of the equipment, been undertaken.

6

Mr Moody QC (who did not appear below), on behalf of the respondents, relied on the findings made by the judge about the absence of a risk assessment which it was the appellant's responsibility to carry out, the appellant's abrogation of his responsibilities as owner and director of the company for health and safety matters, and the fact that the compressor was not regularly serviced or inspected. He submitted that these had causative potency and showed blameworthiness.

7

More fundamentally, Mr Moody submitted that the consequence was that the first respondent's breach of statutory duty was wholly caused by and co-extensive with the appellant's own failings. He maintained that it followed from this that the judge was wrong to find the first respondent was primarily liable for breach of Regulation 5(1), the questions of contributory negligence and apportionment did not arise, and the judge should have dismissed the claim. This is one of two alternative grounds for upholding the judge's order in a respondent's notice. The other ground, that the judge should have held that the first respondent did not owe the appellant a duty under the Regulations, is no longer pursued.

8

The key question is whether this case falls directly or by analogy within the principle and defence identified in Ginty v Belmont Building Suppliers Ltd [1959] 1 All ER 414 by Pearson J, as he then was, and considered with approval by the House of Lords in Boyle v Kodak [1969] 1 WLR 661, at 666F, 669, 670F, 671 and 672E, to which I will return. At this stage it suffices to refer to the statement of Lord Reid in Boyle v Kodak (at 667) summarising the effect of the authorities. He stated that:

"… [O]nce the [claimant] has established that there was a breach of an enactment which made the employer absolutely liable, and that breach caused the accident, he need do no more. But it is then open to the employer to set up a defence that, in fact, he was not in any way in fault, but that the [claimant] employee was alone to blame."

If that defence applies either directly or analogically in the circumstances of this case, that is the end of the matter and the appeal must be dismissed. If it does not, the question is whether any part of the appellant's damage resulted from his own fault, and, if so, the extent to which the appellant's damages should be reduced under the 1945 Act.

The background and the judge's findings

9

I first summarise the events on Saturday 8 November 2008, as to which there was no significant dispute. They are dealt with in the judgment at [5] – [6], and [29] – [31]. On that day, Mr Lewis, an experienced mechanic, to whom the appellant had delegated the running of the first respondent's workshop, was carrying out an MOT test on a Ford Transit van. A man who he had arranged to help him was late. The appellant, who was at his other business a few hundred yards up the road, responded to a telephone request by Mr Lewis to assist. After he got to the workshop, the van was raised on a hydraulic ramp to a height of some six feet above ground. The appellant was in the van operating foot and other controls. When this part of the work was completed and Mr Lewis tried to lower the ramp, he was unable to do so because the compressor in the ramp mechanism failed. After some ten to fifteen minutes unsuccessfully attempting to lower the ramp, Mr Lewis brought a step ladder for the appellant to use to climb down to ground level from the van. As the appellant tried to get onto the ladder, he lost his footing and tried to grab a girder. His left ring finger looped over the screw in the girder and held fast, and his weight caused the finger to be torn off: see judgment at [5]. There are no findings that are critical of the appellant's conduct on 8 November, including using the ladder to climb down after the compressor failed.

10

Soon afterwards, Mr Lewis found that the cause of the failure was that the reset button in the compressor had triggered as a result of a failed fuse and was able to restore power and complete the MOT of the van: judgment [31] and [34]. The van's MOT took seventy minutes, whereas the normal time for an MOT is about forty-five minutes. There was no evidence as to what caused the failure of the fuse: judgment, [35]. The failure of the compressor led directly to the accident: judgment, [53].

11

I now summarise the material parts of the background. The appellant set up the first respondent company in or about January 2006 with a Mr Hounsome. He contributed his business experience of the motor trade and a significant part of the capital. Mr Hounsome, who was an MOT technician, contributed his workshop expertise: judgment [17]. There had been a problem with the ramp in early 2006, shortly after it had come into service, but there had been no further problems with it between that time and the accident in November 2008. At some stage in 2006, Mr Lewis was taken on to assist in the workshop. The judge found that at that time, the directors, the appellant and Mr Hounsome, had joint responsibility for health and safety: judgment [40]. Mr Hounsome left the company in the early part of 2008.

12

The appellant delegated the running of the workshop to Mr Lewis, and his management of workshop routines, the MOT side of the business, and workshop matters was minimal: judgment, [23] and [40]. The judge found that the appellant did not delegate the running of...

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