24 March, 2020
Forbes has successfully defended two construction workplace claims for personal injury. We examine the facts of the cases, how the Judge made the decision and what lessons can be learnt.
The Claimant was retained to work at a construction site. In the course of his employment, the Claimant allegedly lifted and poured a bucket of concrete and consequently injured his back.
In his judgment, the Judge first considered whether the accident had occurred at all?
The Defendant argued that the Claimant had failed to report the accident on site despite having several opportunities to do so. It was also noted that he had a phone number for the Works Manager, and he could have called him to report the accident. The Claimant gave inconsistent evidence on this issue, he contended that he didn't think it was important at the time but in his written evidence he stated he couldn't report it as the site office was closed. The site operated 24/7 and therefore this was inconsistent with the Defendant's position on this issue.
The Judge considered the medical evidence. The Claimant had not mentioned the injury/ trauma when he attended A&E, however, he did refer to the incident when he saw his GP 3 hours later. The Judge was not minded to accept that the Claimant formulated a plan to bring a false claim in the 3 hour intervening period. On this basis, the Judge was satisfied on the balance probabilities that his injury had occurred due to moving/lifting a bucket of concrete.
The Court then proceeded to evaluate whether he had lifted and poured the concrete on the instruction of the Defendants or of his own volition?
The incident was not reported in accordance with his training and he had therefore hampered the Defendant's ability to investigate the matter. Ultimately, after hearing from the Defendant's witnesses, the Court was satisfied that the Claimant undertook the task of pouring concrete on his own volition. In the Claimant's own words, "it was late on a Friday and everyone wanted to get home".
The Claimant alleged that he had not been trained on the best way to pour concrete. He was keen to explain that his role involved no manual handling. However, the Defendants produced evidence to confirm that he had over 20 years' experience in the construction industry. He was a supervisor trainer and was able to direct others on manual handling. The Judge noted that it was clear that the Claimant was seeking to minimise his own responsibility. He was concerned about the veracity of the Claimant's evidence and as a result concluded he was unable to place reliance on the Claimant's version of events without further corroboration.
In conclusion, the Judge found the Claimant was not able to demonstrate that the Defendant instructed him to undertake that task and the claim was dismissed.
In this matter, Forbes acted on behalf of the Second Defendant. The Claimant was employed by the Second Defendant as site manager for the Second Defendant. The Claimant sought damages after he allegedly was struck and injured by the arm and/or bucket of a mini-digger operated by an employee of the First Defendant.
The Claimant also alleged that the Second Defendant, as Principal Contractor, effectively exercised overall control, direction and supervision over the First Defendant's employees to establish an employer-employees relationship and therefore, ought to be held vicariously liable for the actions of the First Defendant's employee (dual vicarious liability).
The First Defendant conceded that there was an accident involving the mini-digger and the Claimant. However, it was argued the impact was so slight that it could not have caused any significant injury.
The Second Defendant denied that it was vicariously liable for the employee of the First Defendant as the nature and extent of the control was inadequate.
The Judge concluded that on the balance of probabilities the Claimant was injured on site. Although, he remained on site after the accident and attended a meeting, he did not mention the injury (as he ought) because he had not appreciated how serious the consequences would be.
The claim against the First Defendant succeeded on the issue of liability but with a 33% contribution.
The claim against the Second Defendant failed as the Judge concluded that the Second Defendant was not vicariously liable for the negligence of the First Defendant's employee.
The Second Defendant had an over-arching obligation as the main contractor to ensure proper standards of health and safety were upheld. Immediately prior to the accident, the Claimant was engaged in exercising a degree of control over the way in which the mini-digger driver was working, for instance, it had instructed him to activate the safety beacon.
However, the negligent act which caused the accident was the mini digger driver's momentarily careless movement whilst getting out of the cab. On the evidence, neither the Claimant nor the Second Defendant had even a theoretical power or obligation to instruct the driver as to how he should get in and out of the cab relying on the established principle that "supervision is not control" (Biffa Waste Services Limited v Maschinenfabrik Ernst Hesse GMBH EWCA Civ 1238.
As a result of the Claimant unnecessarily bringing proceedings against the Second Defendant, it was ordered that by the Court that the First Defendant pay the damages which they had been ordered to pay to the Claimant directly to the Second Defendant to offset their legal costs of the claim. Essentially, the Claimant received no monetary compensation.
There are several key learning points arising from these cases:.
Where possible, we strongly recommend that incidents which might result in a claim for personal injury are investigated as soon as possible and ideally when the project is still active. When a claim is investigated after the event, information and key personnel are often unavailable. A prompt investigation means that written systems of work, records of briefings, health and safety records etc can be retained and used to defend any resulting claim.
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