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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barr v Coventry & Solihull Waste Disposal Company Ltd [2002] EWCA Civ 863 (17 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/863.html Cite as: [2002] EWCA Civ 863

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF
HIS HONOUR JUDGE OLIVER-JONES QC
(Derby County Court)

		Royal Courts of Justice Strand London WC2 Friday, 17th May 2002

1. LORD JUSTICE TUCKEY: This is an appeal with the judge's permission from a decision of His Honour Judge Oliver-Jones QC in which he apportioned liability 50/50 for an accident at the respondent's factory in Coventry in which the claimant suffered serious injury. The appellant was his employer but contends that it had no liability for the accident.
2. The facts are not in dispute although I think it is necessary to set them out in a little more detail than the judge did. The claimant was injured while pushing a barrow loaded with a metal shaft weighing a little more than a ton. The four-wheeled barrow, which was about 3 feet wide, went over a manhole cover which collapsed and the shaft tipped on to the claimant's foot and crushed it.
3. The accident happened on 19th October 1996 when the claimant, then aged 53, had been employed by the appellant as a chargehand rigger for nearly 20 years. He was one of a gang refurbishing the factory, but the work being done under the contract had nothing to do with what he was doing at the time of the accident. About 3 days earlier the respondent's maintenance manager, Mr McFarlane, who was a qualified engineer, had asked the claimant's supervisor for assistance with the removal and replacement of the drive shaft in an ash discharger. This was because the respondent was short-staffed. Mr McFarlane showed the claimant what was involved and they walked the only route to the back of the factory, a distance of between 150 and 200 yards, to which the removed shaft and from which the replacement shaft was to be taken. This lay along a main gangway, constructed in solid concrete about 15 feet wide along which heavy traffic regularly passed, including pieces of equipment approaching the weight of the shaft involved in this accident. The manhole cover - about 26 inches square - was in the centre of the gangway. Unknown to Mr McFarlane, or anyone else, its cast iron cover was designed for light duty use. There was nothing on the cover itself to indicate this. It had apparently been in place for about 20 years without incident but it should have been a heavy duty, load bearing cover. The claimant did not notice the manhole cover (which, like the rest of the gangway, was dirty) when he walked the route with Mr McFarlane.
4. Following Mr McFarlane's request, on 16th October the claimant and a fellow employee assisted two of the respondent's maintenance men to remove and replace the shaft. This was accomplished without incident. The replacement shaft was not satisfactory, so it had to be removed and replaced. That is what the claimant was doing on the day of the accident following a further request for assistance from Mr McFarlane. The same four men were involved and the same procedure was followed. The accident happened while the men were returning down the gangway with the replacement shaft.
5. The respondent admitted liability to the claimant and settled his claim for £300,000. The judge therefore only had to try the Part 20 contribution proceedings between the respondent and the appellant. The respondent accepted that it was liable, as occupier of the factory, for breach of statutory duty and at common law. The issue was whether the appellant, as the claimant's employer, was also liable at common law. At the trial of this issue, which lasted 3 days, the respondent called Mr McFarlane and one of their two employees, Mr Owen, who was working with the claimant at the time of the accident. The appellant called the claimant.
6. The judge delivered a reserved judgment. It is apparent that there was no issue about the applicable law derived from Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110 and other cases to which the judge was (and we have been) referred. It is conveniently summarised in the passage quoted by the judge which comes from the head note in Cook v Square D Ltd and Others [1991] 1 PIQR 33:

"Though it is an employer's duty to take all reasonable steps to ensure the safety of his employees in the course of their employment, such duty being non-delegable, it is necessary to take account of the circumstances of the case in deciding whether an employer is in breach of his duty when the employee is directed to work at premises not occupied by the employer himself. Such circumstances include the place where the work is to be done, the nature of the building on the site concerned, the experience of the employee who is so despatched to work at such a site, the nature of the work, the degree of control that the employer can reasonably exercise in the circumstances and the employer's own knowledge of the defective state of the premises which includes matters of which the employer ought to be aware."

7. The judge set out his reasons for finding that the appellant was in breach of its duty of care to the claimant in a number of bullet points. These were:

"* There is no evidence that [the appellant] did anything at all to assess either the work to be undertaken by the claimant or the place at which such work was to be done.

* There is no evidence that [the appellant's] responsible management had any actual knowledge of the work for which they were loaning the claimant other than the fact that it involved moving a shaft.

* [The appellant] was at all material times actually working at [the respondent's] factory site on the formally contracted works.

* The rigging work upon which the claimant was to be engaged, whilst relatively straightforward, involved the dangers which in my judgment are inherent in any rigging work involving the lifting and moving of very heavy pieces of equipment.

* I am satisfied that any reasonable assessment of the system of moving the shaft would have involved consideration being given to the ability of the manhole cover to withstand the weight of the load.

* Although the manhole cover existed on a gangway that was regularly used by heavy traffic of one kind or another, the evidence does not suggest that such traffic was ever as heavy as that involved in the particular circumstances of this case.

* The [respondent] was, in my judgment, unaware of the lack of inherent strength of the cover in the circumstances of the particular transportation or at all.

* There is no positive evidence that [the respondent was] perceived by the appellant as reasonable, reliable and responsible employers mindful of the safety of their work force."

8. The judge then said that the crucial question was whether the appellant was entitled to do nothing at all. He answered this question in the negative, saying:

"Their state of knowledge as to what was going to be required of the claimant or where he was going to be expected to work or in what circumstances was virtually non-existent. In my judgment where employees are loaned to another employer in circumstances where it is easy for the general employer to assess the task for which the loan is intended, there is a positive duty on the general employer to undertake a safety assessment of the work and place of work. That duty is non-delegable, and doing nothing in circumstances such as those of the present case, can never amount to a discharge of the duty of care."

9. The judge found that if a safety assessment of the work to be done by the claimant had been carried out, it would at least have raised doubts as to the integrity of the manhole cover which would have led to some steps being taken to ensure safety, such as placing a steel plate across it or instructing the men to avoid it. He apportioned liability 50/50 because both defendants were guilty of the same failure and he could see no reason to distinguish between them in terms of blameworthiness.
10. In his skeleton argument, while accepting that its duty to the claimant could not be delegated, Mr Herbert, for the appellant, submits that the facts did not justify the conclusion which the judge reached. The accident happened because of a defect in the respondent's premises which was not apparent to anyone. The work being done by the claimant was for them and under their direction and control. The appellant was not obliged to do anything more than the claimant did. But even if it should have carried out some form of further risk assessment this would not have revealed the defect in the manhole cover so any fault on the appellant's part was not causative. In any event the judge's apportionment should have reflected the fact that the respondent was substantially more to blame than the appellant in the circumstances.
11. Mr Giles, for the respondent, supports the judge's conclusion. In his arguments before us today he said that the appellant's evidence revealed that nothing was done, nothing was assumed as to what steps would be taken for the safety of its employee and no questions were asked. As the appellant called no evidence from its responsible management as to these matters, it was not open for it to assert that it was entitled to believe that the claimant would be safe in doing the work he was asked to do. The judge was entitled to draw the inferences he did in the absence of such evidence. He was entitled to find that a proper assessment would have revealed the defective manhole cover, and his apportionment should not be disturbed because whatever the source of the duty the failure of the parties was the same.
12. Mr Giles developed those submissions before us by reference to the evidence that was given at trial. He reminded us of a report prepared by the appellant's regional safety advisor, Mr Harvey, after the event in which he made a number of recommendations. Manhole covers situated in work areas should be upgraded to the heavy duty load bearing type. Manhole covers which were non-load bearing should be clearly identified as such. If for any reason loads had to be moved over covers which were not identified they should be treated as non-load bearing, and steel plating or other protection should be placed over them. Before transporting heavy loads the route should be walked to identify and remove or protect any hazardous obstacles. Mr Giles submits there were things which could have been done although he acknowledges that this was a report after the event and some of the recommendations could not possibly be applicable to premises which did not belong to the appellant. Nevertheless, he says that had the appellant had in mind the danger which manhole covers can pose to those who are carrying heavy traffic across them it could and should have taken the sort of stseps which the judge referred to. There was therefore support for the judge's conclusions.
13. Despite these submissions, I am bound to say that looking at the facts which I have recited my first reaction was and still is that there is something wrong with the judge's conclusion. The claimant was the most experienced rigger on site. He said he needed no instruction or supervision in removing or replacing the shaft in the ash dispenser which was a potentially hazardous operation but which he carried out with the help of the other three men without difficulty. Pushing the loaded barrow was not hazardous. The claimant merely lent a hand. Before doing so he had walked the route with Mr McFarlane. This was a main factory gangway, 15 feet wide; the barrow was only 3 feet wide. The manhole cover was a danger but this danger was unknown to Mr McFarlane or the respondents. There were other responsible employees who would have said, if asked, that the route along which the loaded barrow was to pass was safe. The barrow had passed safely along this route three times before the accident in the claimant's presence and there was evidence that another heavy load had been taken along it some days previously.
14. Mr Giles took us to Mr McFarlane's evidence which he said showed only that Mr McFarlane, if asked, would have said, "I would have replied that it was safe as far as I knew." That, Mr Giles submits, was not or should not have been good enough for anyone who asked the question. They should themselves have made sure the route was safe. Having looked at the passage to which Mr Giles took us, it is clear in my judgment that Mr McFarlane, if asked, would have said the route was safe. The question and answer which makes this clear are as follows. Mr Herbert asked:

"Because, as far as you were aware, all the various routes in the factory were safe routes for the employees to take,"

to which Mr McFarlane replied,

"To my knowledge, yes. Well, there was only one route in particular on that occasion."

15. He was asked,

"Q But insofar as this was the only route available, to your knowledge it was safe.

A To my knowledge it was certainly a safe route, yes."

16. That was the evidence.
17. It seems clear that if he or, indeed, Mr Owen, to whom I have referred, who gave evidence to similar effect, had been asked by anyone on behalf of the appellant whether the route as a whole or the manhole cover in particular was safe they would have said itwas. Unless the appellant had inspected the entirety of the gangway in detail and had carefully examined and assessed the strength of the manhole cover, they would not have discovered the danger. I think it is quite unrealistic to have expected them to do so. They were entitled to assume the route was safe following the claimant's walk along it in company with a senior qualified employee of the respondent who could be expected to point out any dangers. It is not strictly correct to say the appellant did nothing. The claimant, a very experienced man, was obviously well qualified to carry out any risk assessment that was required. I do not see what any of his superiors could have added. This was, after all, an operation on the respondent's premises for their own purposes and carried out under their direction and control, as the evidence to which we have been referred this morning shows. The appellant, other than through the claimant, had no control over the operation and no knowledge of the danger. I think it is impossible to say that they ought to have known of it in the circumstances I have described.
18. Looking at all those circumstances as the law requires, I think the judge was bound to conclude that the appellant did not breach its duty to the claimant and in reaching a conclusion to the contrary he was in error. Even if that duty required the appellant to do more than it did, I cannot think that it extended so far as to have required them to discover the danger and to have taken steps to ensure that it was avoided. It follows that if the judge was right to hold that there was a breach of duty, I think he was wrong to hold that it was causative.
19. These conclusions make it unnecessary to consider apportionment. But I am bound to add that this was clearly not a 50/50 case. At best, the respondent could have hoped for a contribution of 20 or 25 per cent.
20. For these reasons I would allow the appeal. The judge should have dismissed the respondent's Part 20 claim. That is the order I would substitute.
21. LORD JUSTICE KENNEDY: I agree. When Mr McFarlane and Mr Barr walked along this route the manhole cover was not even visible because of the presence of dust. If Mr McFarlane had been asked at that stage - had the manhole cover been discovered - whether there were any concerns about it, his answer, clearly upon the evidence, was that at that particular time, "I had no concerns." He was a qualified engineer.
22. In those circumstances, for my part, I can see no reason why the conclusion should not be that which my Lord has indicated. I, too, would allow this appeal.
Order: Appeal allowed with costs here and below subject to detailed assessment if not agreed