BLM successfully defends work equipment regulations appeal

30 May 2018

The facts

In this case, the claimant sustained a serious head injury as a result of falling from a ladder. The claimant was a self-employed electrician who had been working on a sub-contract basis for the defendant, a local electrical contractor.

At the time of the accident, the claimant was carrying out electrical circuitry installation during a hospital refurbishment. He was working from an aluminium “A” frame ladder that had been supplied by the defendant and stated that he was using it normally when it collapsed due to the rear left support stile unexpectedly failing.

The claimant alleged that the defendant was in breach of the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998) and in particular had breached regulation 5 of the work equipment regulations by failing to ensure that the ladder was maintained in an efficient state, in efficient working order and in good repair. He also claimed that the defendant should have provided him with a proper working platform as this would have avoided the need for him to use the ladder.

The defendant denied liability arguing that the ladder was well maintained and in proper working order. It was denied that any failure to the rear left support stile was due to any patent or latent defect or disrepair in the ladder and it was likely that the claimant had been overreaching or shuffling the ladder. The ladder was perfectly suitable for intermittent and light electrical work.

At first instance

The judge found that the failure of the ladder stile was due to the claimant either attempting to shuffle the ladder sideways or unnecessarily overreaching, probably the latter, which resulted in overbalancing and additional weight being placed on the rear left stile causing it to fail. The judge rejected the claimant’s account of the accident on the basis his memory was unreliable in light of his head injury.

It was held that the failure of the stile was not as a result of any pre-existing defect. Despite the defendant being in breach of statutory duty for not producing a formal risk assessment or method statement, this was not causative of the failure of the left rear stile.

The judge concluded that the ladder complied with BSI and HSE guidance and was safe for the claimant to use. The judge preferred the defendant’s expert evidence in respect of it being more likely that the rear left stile failed due to overreaching or the ladder being shuffled sideways.

The claim was dismissed.

Decision on appeal

The appeal was heard by Morris J in the High Court under the modified routes to appeal brought about by the changes to CPR 52 introduced on 3rd October 2016. Prior to this date the Court of Appeal would have heard the appeal.

The claimant appealed the decision on the basis that the judge had been wrong to conclude that the claimant had misused the ladder by overreaching or shuffling it sideways. It was specifically submitted that no satisfactory engineering evidence had been given to allow the judge to reach this conclusion because the defendant’s expert opinion was conjecture and could only ever be a possible not probable explanation.

The claimant submitted that the judge had failed to properly direct himself about the 92 kg of lateral force required to cause the stile to bend and there was an “appropriate assumption” that their accident was caused by a defect, although hidden, in the left rear stile.

The High Court noted the following issues for consideration:

1. Whether the burden of proof was on the claimant to adduce evidence that there was a pre-existing defect in the left stile or whether the burden of proof was on the defendant to show that the failure of the stile was caused by the claimant’s misuse of the ladder.

2. If the claimant was under a burden to prove that there was a pre-existing defect, whether the claimant discharged this duty.

3. If the burden of proof was on the defendant to prove that the failure of the stile was caused by the claimant’s conduct - whether it was right for the judge to conclude on the facts that the claimant had caused the failure due to overreaching or shuffling and whether he was entitled to reach this decision on the available evidence.

In respect of the first issue, Morris J acknowledged that there is an obligation under regulation 5 to maintain equipment in an efficient state and there exists no burden on an employee to show negligence on the part of the employer, as per the cases of Galashiels Gas Co-Limited v Millar [1949] and Stark v Post Office [2000], relied upon by the claimant.

However, Morris J noted that in these cases there was evidence of a hidden defect but no suggestion of misuse by the employee. Citing the Court of Appeal decision in Jakto Transport Limited v Hall [2005], where misuse was alleged, Morris J concluded that that where there lies a choice between an existing defect in equipment and ‘operator error’, there is a legal and evidential burden upon the employee to produce evidence to show the existence of a defect; in this case the claimant had a burden to evidence a defect in the left stile of the ladder. It was specifically stated that this was “… not a case of “res-ipsa loquitur” and the claimant could not rely on an assumption that there was such a defect.”

In relation to the second issue, it was noted that the trial judge had considered all of the facts and was entitled to prefer the evidence of the defendant’s expert. Morris J noted that the trial judge had remarked upon the fact that the claimant’s expert “… did not repeat, or expressly maintain his earlier opinion … that there was a pre-existing weakness”. Furthermore, there was no direct evidence as to the claimant’s use of the ladder as the trial judge had concluded that he was unable to accept the claimant’s account. This had the knock-on effect of undermining the claimant’s expert evidence, which was based primarily on the claimant’s account of the accident. As a result, the trial judge was entitled to conclude that the claimant had not proved that there was an existing defect that caused the failure of the left rear stile.

In respect of the third issue, the trial judge was right to find that the claimant’s conduct, more likely in overreaching rather than shuffling on the ladder, had caused the failure of the stile. It was held that the trial judge had given cogent reasons as to why he reached this conclusion and did not simply adopt the evidence of the defendant’s expert: As demonstrated in Jakto, the function of the Court may include preferring on a balance of probabilities, one of two possibilities, both of which are very unlikely.

Morris J stated that the judge’s findings were “logical and well reasoned”. He was entitled to reject that the stile simply failed in the course of normal working and he was not wrong to dismiss the claim.

The claimant’s appeal was dismissed.

What this means for you

This case shows that claimants have a legal and evidential burden to prove their case where a hidden defect is alleged to exist in a piece of work equipment. In particular, where there are allegations of defective work equipment in circumstances where the reasonableness of the claimant’s use of the equipment is under scrutiny, claimants are required to prove that there was a defect with the equipment and that this defect was the cause of their accident. It will not be assumed that the work equipment was defective just because an accident had occurred if there is another explanation which appears prima facie equally cogent.

It should be noted that this claim was pursued prior to the coming into force of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) so the claimant pursued the defendant for breach of statutory duty under the PUWER 1998. It should be noted that a breach of the regulations post 1 October 2013 does not impose civil liability on a party who is in breach. However, a breach of the regulations can be used as evidence of negligence at common law.

On the present law, absent PUWER, this case would still be decided with the same result because the trial judge preferred the defendant’s expert. Furthermore, Morris J confirmed that in this type of ‘hidden defect’ case the claimant still retained in the legal and evidential burden of proof.

The defendant was successful in a similar claim argued on negligence alone in the case of Roberts v Dib Stores Discount Warehouse [1998] CA in which the Court of Appeal upheld the trial judge’s decision that the doctrine of res ipsa loquitur did not apply where the ladder was under the control of the claimant at the time of his injury.

Also, the following points should be considered in similar cases:

  • Whether there is physical evidence and expert evidence to discount the presence of a defect in the work equipment. Here, the claimant’s expert evidence fell short of showing that there was a defect with the ladder prior to the accident. In comparison, the defendant’s expert evidence supported that the likely cause of the stile failing was due to the claimant’s misuse of the ladder (likely to be as a result of overreaching).
  • Whether, if appropriate, there are maintenance and repair records for the work equipment. In the present case inspection records for the ladder in question showed the condition of the ladder to be satisfactory.
  • Whether there was a suitable risk assessment in respect of the use of the work equipment. There may be different ways of completing the same job and the court will expect the employer to find the safest way, sometimes this will involve the use of a mobile platform as was unsuccessfully alleged by the claimant. It should be noted that a lack of risk assessment can be used as evidence to infer negligence but liability will not attach if this was not causative of the accident.
  • Whether suitable training, to include refresher training, had been provided in respect of the use of work equipment.
  • Whether there have been any previous accidents and/or complaints in respect of the work equipment in question.
  • Whether the work equipment complied with HSE and BSI guidance. In this case, the ladder complied with HSE and BSI guidance and was safe to use.

Our previous newsflash in respect of the first instance decision can be accessed here.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Ruth Graham

Ruth Graham

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Manchester


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