08 October, 2019
A Claimant who injured himself with a sledgehammer has lost his claim for personal injury at trial.
The Claimant had been tasked to work on a joint venture construction project by his employer, a labour-only sub-contractor. On 11th September 2014 the Claimant, who was a highly experienced carpenter, was working with some PERI panels when he noticed a slight 5-10mm kink in one of the panels. The Claimant used a 14lb sledgehammer to attempt to knock the kink out of the panel and, on the fifth strike, the sledgehammer glanced off the panel and struck his ankle. The Claimant sustained a fractured ankle and was unable to work for 12 weeks.
The Claimant brought a claim for personal injury against both his employer and the Joint Venture. He argued that there was an unsafe system of work and contended that he should not have ever been required to repair the defective PERI panel. However, during oral evidence at trial the Claimant conceded that slight defects in formwork panels was commonplace, as was using a sledgehammer to repair them. He also accepted that he had not sought to reject the panel or replace it with a new one, and that he knew how to use a sledgehammer safely.
The Defence submitted that using a sledgehammer did not in itself pose an unacceptable risk of injury in circumstances where the Claimant had undergone training and was highly qualified to carry out this task. Whilst the panel should not have been defective it was impossible to know that it was (due to delivery methods) until the panel came to be used, and the Claimant was therefore best placed to make the decision about whether it should be used or not. Having decided to remedy the defect rather than request a replacement panel, the Claimant had himself created the unsafe work environment of which he was complaining. In addition, remedying the defect in this manner was not inherently dangerous as long as the sledgehammer was used correctly and safely.
The Judge concluded that the Claimant was not forced to repair the panel using the sledgehammer, it was his own decision to do so and, having decided to take that step, it was incumbent upon him to do so safely. The Judge commented that it is not necessary for every potential risk to be removed in order for there to be a safe system of work and dismissed the claim in full.
The Judge remarked in his judgment "just as a professional golfer may miss the ball, a professional carpenter may miss-wield his tool". It is important to understand the distinction between an error of judgment and an unsafe system of work. Using heavy equipment or power tools will always carry a certain amount of risk from inattention or a lapse in judgment, and employees can be quick to divert blame away from their own failings when things go wrong. Employers cannot remove the risk of injury entirely, but they can protect themselves and their workforce by ensuring that staff are fully trained in safe methods of equipment use, and by effectively assessing the risk that work practices may pose to them.
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