09 December, 2011
Halsall v Wigan Council - 2nd December 2011
Forbes successfully defended a claim for Wigan Council in respect of an accident at an Infant School.
The Claimant was employed by the Defendant as an assistant gardener and was required to use a wheeled rotary mower. Whilst using the mower to cut grass, the blade dislodged a piece of hardcore that had been hidden by the grass. The Claimant suffered a fracture to his left tibia.
The Claimant alleged breach of statutory duty and sought to rely on the provisions of the PUWER 1998 and PPE Regulations 1992. The Claimant alleged that the terrain was unsuitable and that the contour of the ground caused the rear of the mower to be raised with no protection for the Claimant and the Defendant should have provided the Claimant with shin pads. If the accident was found to be caused by operator error, it was alleged that the Defendant failed to instruct, inform and train the Claimant appropriately.
This claim was defended on the basis that the Claimant underwent appropriate training, the mower was appropriate for use on the piece of grass in question and the grass had been recently mown (approximately 19 days prior to the accident) therefore ought not to have impeded the Claimant's detection of the said piece of hardcore.
The Judge in dismissing the claim found that the mower was suitable for the task in hand, the terrain was not unsuitable for use of the mower, the length of the grass was not as long as the Claimant claimed and the skirt to the mower provided adequate protection. The Judge was also satisfied that the Claimant was also properly trained and informed and this was nothing but an unfortunate incident.
The case shows that Employer Liability claims notwithstanding the strictness of the Regulations are capable of being defended subject to steps being taken to ensure that appropriate risk assessments, training and use of work equipment is being used. Part of the Claimant's task prior to the mowing procedure was to ensure that obstructions were removed. On this occasion a hidden stone had clearly been missed but with no one at fault.