Sonmez v Kebabery Wholesale Ltd
| Jurisdiction | England & Wales |
| Judge | JUDGE HAWKESWORTH |
| Judgment Date | 31 October 2008 |
| Neutral Citation | [2008] EWHC 3366 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/08/0652 |
| Date | 31 October 2008 |
[2008] EWHC 3366 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Hawkesworth Q.c.
Case No: TLQ/08/0652
MR NICHOLAS HILLIER (Instructed by Levenes) appeared on behalf of the Claimant
MR RICHARD HARTLEY (Instructed by DWF) appeared on behalf of the Defendant
Approved Judgment
The Claimant suffered a very serious injury on 8 July 2004, while working for the Defendants. He was cleaning a Cresta mixing machine when his arm was caught by the revolving mixing arm and so severe was his injury that his right arm had to be subsequently surgically amputated at the shoulder.
There was ordered a trial of preliminary issue of contributory negligence, primary liability having been admitted by the Defendants. The Defendants accept that the onus is upon them in these proceedings to establish contributory negligence on the part of the Claimant. I therefore heard evidence, first from the owner of the Defendant's business, Mr Burak Etcheri, and from the Claimant's fellow employee, Mr Binali Keklik. The Claimant then gave evidence followed by his witness, Mr Umit Keklik. Apart from Mr Etcheri all the witnesses required an interpreter and gave evidence in their native language, Turkish.
The background facts were as follows: the Defendant's business originally operated from a kebab shop in Epping High Street. At the rear of these premises was a room in which meat preparation took place. There were three machines, a slicing machine, a mincing machine and a rotary mixer. This latter machine, which is shown in photographs in the bundle, has a large stainless steel bowl which, when operating, rotated on its base. Within the bowl there is a central spindle and a fixed mixing arm which comprise two steel curved bars, which were in a fixed position angled down towards the base of the bowl and passing close to the central spindle. These rotated upon their own axis. The bowl was covered by a steel lid, which had an interlock device in two parts. The lid was fitted with a magnet or key which rested, when closed, upon a contact plate attached to the bowl. This completed a circuit so that the machine could only operate when the two parts were in contact and the lid was closed. The minced meat and other ingredients would be loaded into the steel bowl and mixed for the making of doner kebabs and after the meat was removed, at the end of the day the mixing bowl would be cleaned.
The cleaning of the bowl was one of the jobs which the Claimant was required to perform. He had started work for the Defendants in October 2002. At the High Street premises the mixing bowl could only be cleaned when the lid was opened and the machine was stationary. The sticky meat and fat residue would be scraped off with a plastic scraper and then the bowl would be cleaned with a cloth soaked in hot water, bleach and washing up liquid. The owner of the business, Mr Burak Etcheri, showed the Claimant how to do this.
About 18 months before the accident the meat processing machines were moved to new premises at Shaftsbury Farm near Epping, about one mile from the shop. The Claimant moved there with the other employer, Mr Binali Keklik who was the more senior employer and was responsible for mixing the meat and forming it into the doner kebabs. Shortly after the move to the new premises the interlock device became faulty and as a result the machine would not run with the lid shut. A new interlock device was accordingly fitted, but the old parts were retained by Mr Etcheri at the premises. By using one of the old parts of the interlock mechanism and placing it on the contact on the bowl it then became possible to operate the mixing machine with the lid open.
On the day of the accident the stage in the meat processing had been reached where it was time for the Claimant to clean the machine. He used the old interlock device to override the mechanism and began to clean the bowl with the machine switched on using the plastic scraper. Mr Binali Keklik was working n another area close by washing knives and Mr Etcheri was in the office between ten to 20 metres away. Having started to clean the Claimant then heard his mobile 'phone ringing and he moved away from the machine, which he left running, to have a telephone conversation. He spent a few minutes on the telephone and on his return he resumed cleaning the inside of the bowl. The machine, however, began to rotate the mixing arm at a faster speed, as it did automatically after running for a few minutes, and according to the Claimant this sudden speeding up of the mixer caused his right arm to be caught and he was pulled down into the mixing bowl instantly suffering serious injuries to his arm. He managed, however, with his free hand, to knock the magnetic device from the machine and it stopped operating. His screams alerted Mr Keklik and Mr Etcheri who rushed to try and extricate him, but it took 30 to 40 minutes to dismantle the machine and while he remained trapped and fully conscious the Claimant was suffering in terrible pain.
The Defendant's case is that the Claimant was himself party to blame for this accident for adopting this method of cleaning the machine while it was in operation. The Defendant's liability is admitted upon the basis that they failed to take sufficient steps to prevent the overriding of the interlock mechanism on the machine hence, they were in breach of their statutory duty to the Claimant which required under the Provision and use of Work Equipment Regulations 1998, that they take effective measures to prevent the Claimant's access to any dangerous parts of the mixing machine while it was in motion.
The evidence of Mr Etcheri was that he had never condoned the use of the spare magnet for cleaning the machine and had he seen the Claimant doing so he would have severely reprimanded him. He maintained that while trapped in the machine the Claimant admitted that he knew he should not have been cleaning the machine in this way. However, this was not something he had told the Health and Safety investigators when he was interviewed on 28 September 2004, seven weeks after the accident. He did, however, admit in that interview, that he had disciplined Mr Binali Keklik “A couple of times,” for using the device to override the interlock. This was on occasions when meat was being mixed in the machine, but he maintained that he never saw Mr Keklik with his hands in the machine while the machine was operating with the lid open. Normally, he said, the old parts of the interlock were kept in a box in a cupboard in his office and it was kept...
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