14 October, 2019
Not a likely basis for a personal injury claim, you might think, and you are probably right. However, somewhere along the line two things happened; the Claimant decided that it probably wasn't his fault, and a Lawyer agreed with him. Turns out that they were both wrong as he lost the trial, but it did get me thinking that causation is not greatly understood, even by some Lawyers.
Let me give you some background. The Claimant was an experienced Carpenter with a specialism in formwork. He was working on a site run by a Joint Venture partnership as Principal Contractor. He was tasked with connecting formwork panels and, as he was doing so, he came across a slightly defective panel; the edge had clearly been knocked and contained a kink. Given that the panels had to fit together perfectly, the defective panel was unsuitable.
Rather than reject it and take a new one, the Claimant decided to straighten the edge using a 14lb sledgehammer. He retrieved the tool, which was owned by the PC, stood with his feet either side of the kink, and proceeded to strike it. He managed to do so successfully four times, but on the fifth attempt the sledgehammer bounced awkwardly and struck him on the ankle, fracturing it in the process.
The Claimant brought court proceedings alleging that the formwork panel was defective and that the work system that he had to work within was dangerous, thereby exposing him to a risk of injury. He sued his employer (a labour only sub-contractor), alleging breach of their non-delegable duty of care, and the PC, on the basis that they had supplied him with defective equipment and a dangerous work system. I represented the latter.
On the face of it, the arguments are sound. Your employer does retain a duty of care to you, even when they have no direct control over your work environment, although it is not quite as simple as that. In addition, the panel was supplied by the PC (albeit by a third party provider) and it was defective. The Claimant was just doing his best in the face of a difficult situation wasn't he?
Well no, not quite, and this is where the misunderstanding comes in, particularly in the context of work system paperwork such as risk assessments. The standard argument in these types of cases is that the scenario was not properly risk-assessed; nobody thought that it, or something similar, might occur so no steps were put in place to deal with the eventuality. It is also standard to try to defer blame; the Claimant is nought but a simple worker, humbly carrying out orders in the face of bad supervision and poor work systems.
Let's trace that back in the context of this case. The Claimant was experienced and very well trained. Did he know how to use a sledgehammer? Yes, of course. Did the PC check that? No. Was that negligence? No, because you cannot check that every labourer that you have on site is capable of basic construction tasks, particularly if you have relied upon an agency to provide you with suitably experienced and trained personnel in accordance with the Labour Only Sub Contract (check the NEC3 or similar contracts if you want to look at the provisions which require this). It is only reasonable to assume a basic level of knowledge.
Was the Claimant specifically asked to carry out this task? No, although he did claim that his "Supervisor" agreed that it was the best way of dealing with the problem. Note that he agreed; the Claimant himself actually thought this action was a good idea and it was his suggestion to do it. Apparently, this is something that he came across regularly and he dealt with it in the same way each time.
The answer is no; the injury was caused by poor technique in using the sledgehammer, which caused it to deflect into his ankle. Being faced with a defective panel does not, in itself, expose you to injury, nor does it require you to remedy the defect. You can simply get a new one, reject it, make a complaint, refuse to use it, there are all manner of responses to being faced with defective equipment, but none of them exposed him to any risk of injury. It would be different if he had lacerated his hand on the defective edge, or if he had been ordered to try to fix the panel, but neither of those scenarios occurred.
However, the Claimant's argument was that supplying a defective panel put him in a position where he had to remedy the defect, so whilst he may have hit himself by mistake, he would not have even been required to attempt to use the sledgehammer if the panel had not been defective in the first place.
Let us consider the question again. Was it using the sledgehammer that caused the injury? No, not at all, he had successfully struck the same panel four times before his accident, and he had done the same thing with any number of defective panels on previous occasions on other sites, all without sustaining injury. It was therefore possible to use a sledgehammer to carry out this task without the risk of injury, as long as the tool was used properly, and there wasn't anything inherently dangerous about doing so over and above the danger that exists when using sledgehammers generally.
In effect, it does not really matter whether the panel should have been supplied in perfect condition, whether the task was risk-assessed, or whether the work systems were poor because, in the end, the Claimant would not have sustained any injury (despite those legal failings) if he had used the sledgehammer properly. The context may have been negligence or breach of duty, but the cause was simple human error. Even if those failings had been remedied, the accident would have played out in exactly the same way.
In this claim the distinction between cause and effect is fairly apparent, but that is not so in many other cases, where it is often difficult to distinguish. However, in the face of poor documentation it is common for liability to admitted on the assumption that the failures resulted in the accident, but that is not always the case. Of course, the poorer the work systems and RAMS the more likely it is that things will go wrong and people will suffer injury, but it does not follow that there is a causal link in every case, even where negligence or breach of duty can be proved. I have seen many claims where there have been catastrophic failings, but not a single one of them caused the accident. For that reason, it is essential to get specialist legal advice in order to protect the company's position as early as possible.