25 July, 2019
Forbes Solicitors has successfully defended what is likely to be one of the last strict liability, pre-Enterprise and Regulatory Reform Act (ERRA) cases.
The Claimant on behalf of the deceased Leslie Musson brought a claim following an alleged accident in May 2012. In the course of his employment, he sustained an injury whilst lifting the tail-lift on the rear of the vehicle he was driving. He alleged that there was a problem with the torsion bar, which meant that the tail-lift was heavier than it should be. He contended that he had to use his shoulder to lift the tail-lift and as a result, he suffered an injury to his back.
The primary question before the Court was whether the tail-lift was defective. As this was a pre-ERRA case, if it was found to be defective, the Defendant would be in breach of regulation 5(1) of PUWER for failing to maintain work equipment.
At trial, the Judge considered the evidence in detail, including a written statement made by the Claimant before his death. However, the Judge preferred the Defendant's evidence, particularly that of the Garage Supervisor who gave evidence that the tail-lift was not defective but was within a serviceable range at the time of the incident and whilst a minor adjustment was made post-accident this did not make the lift defective.
The Judge also placed some weight on the fact that the Claimant had an underlying degenerative condition in his right shoulder and therefore whilst the tail-lift may have felt heavy to the Claimant given his shoulder issue, it was not objectively heavy or defective.
The Judge concluded that this was an unfortunate accident, involving the deceased with a vulnerable shoulder, undertaking a task which is performed by 200 drivers employed by the Defendant at this depot alone on a daily basis. It was not due to a breach of duty and the claim was therefore dismissed.
This is a fantastic outcome for the Defendant. It is likely to be one of the last cases applying the principle of strict liability following Stark v Post Office . Post 1st October 2013, persons who are injured at work must now show that their injuries have been caused as a result of negligence on the part of the employer rather than relying directly upon a breach of statutory duty. Following a workplace accident, employers should act quickly to gather contemporaneous evidence including witness evidence, taking photographs (where relevant), and obtaining relevant documentation including risk assessments and written policies to demonstrate that they have acted reasonably.