Action against employer: injury at work

Rhenium: JOHN GRANT

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Advice

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1. Undisputed Facts

Those teaching me act for and I am asked to rede Mr John Grant who was injured while at work on 26ThursdayAugust 2003. Mr Grant was employed as a General Labourer by Rattle Engineering Ltd. As his occupation rubric suggests, his responsibilities were non specific or skilled. His employers are in the concern of transporting out fixs to industrial machinery. Due to the heavy and immovable nature of most such machinery, such fix work is by and large carried outin situin the premises of the client. On the day of the month of the accident, Rattle Engineering were engaged in fix work at the premises of McFarlane Contracts Ltd in Liverport. Our client was a member of a four-man pack under the way of the Rattle Engineering Foreman, Joseph Ashford. The equipment and constituents required to transport out the fix work were delivered to the premises of McFarlane Contracts and, upon the way of Jim Smith, the McFarlane Factory Manager, unloaded on the forecourt of the premises. Consequently, it became necessary for these points to be moved to an country at the rear of the premises. This was achieved by agencies of lading them onto a conveyer belt which ran from the forecourt to the rear of the premises. Our client was directed by Mr Ashford to raise and transport pieces of steel ( “nuggets” ) from their place on the forecourt to the conveyer belt. Mr Grant estimates that the distance from their unloaded place to the belt was about 14 pess. While engaged in the motion of one such nugget, our client slipped and fell prolonging hurt. I am non asked to rede as to quantum and consequently I do non detail such hurts or their effects herein.

2. Summary of Advice

Mr Grant has a good chance of success in actions both against his employer, Rattle Engineering Ltd and the resident of the premiss upon which the accident occurred, McFarlane Contracts Limited. The action against his employer should be framed in carelessness on the footing that the employer was negligent in that there was a failure in the employer’s responsibility of attention towards our client as an employee specifically by neglecting to implement a safe system of work. It will besides be possible to trust upon breaches of the Workplace ( Health, Safety and Welfare ) Regulations 1992 and the Manual Handling Operations Regulations 1992.

In add-on, our client should publish proceedings against McFarlane Contracts Ltd on the footing of their breach of responsibility toward him under the Occupiers’ Liability Acts 1957 and 1984.

It should be noted that success in either or both actions will be dependent upon favorable findings of fact in relation to the allegations advanced by Mr Grant. The client should be advised that much of the grounds upon which he depends is the topic of difference and while he is lent support by the Incident Report from his employer, the Accident Record of McFarlane Contracts attempts to shrive that company from liability by denying the being of obstructors and the presence of oil on the land.

The adept study presently to manus is unsatisfactory and should be revised in conformity with the recommendations made below. An application for specific find of paperss associating to Risk Assessment and preparation should be considered but finally this may non turn out to be in the best involvements of the client.

Most desperately, teaching canvassers should be aware of the at hand termination of the restriction period. An effort to hold this extended in trust upon the discretion of the tribunal would be unadvised.Consequently, proceedings should be issued without farther hold.

3. Potentially Disputed Facts

Our client describes the undertaking being “more hard than it should hold been” because “there were a few spots of oil on the forecourt” which he was seeking to avoid and there were “a few spots of bit metal and other equipment lying around” . He describes the effect of this as being “I had to writhe around a spot to acquire the nuggets on the conveyer belt” . The information contained in the Attendance Note dated 6ThursdayOctober 2003 prepared by a Trainee ( Hilary Western ) at Mr Grant’s former canvassers is more specific:

“It was hard to acquire entree to the nuggets because they were situated between a big stack of steel smugglers to the right and a heap of bit metal and other dust to the left.”

This is contradicted by the entry in the McFarlane Contracts Accident Report Book which reads:

“Floor clean and dry, no waste or dust in the area.”

The Rattle Engineering Incident Report concludes:

“Likely cause of accident: province of premises. Oil spot on floor.”

Our client attributes his autumn to two factors: holding to travel awkwardly as a consequence of the presence of blockading points and the presence of oil on the land in the forecourt. So far as the presence of oil is concerned, there is range for uncertainty: In the interview conducted by Hilary Western referred to above, Mr Grant states that “he hadn’t really seen any [ oil ] when he arrived but there were oily spots on his overalls and boots when he left the infirmary so he merely ‘put two and two together’ . It should be noted that Mr Grant admits to working on his auto prior to the accident. It must hence be assumed that his grounds in regard of the presence of oil will be less than conclusive. On the other manus, I am encouraged to some extent by the findings of the expert, Bernard Copeland contained in the study dated 20ThursdayOctober 2003. It must of class be borne in head that this was anex station factoreview of the premises with the consequence that the grounds of Mr Copeland can non itself be conclusive as to the province of the premises on the twenty-four hours of the accident. It ay nevertheless prove persuasive in so far as it tends to bespeak the general province of the premises. Following accidents of this nature, there is an apprehensible inclination for residents to turn to any sensed defects in the premises prior to the reaching of an expert. It is usual to presume that the consequence of an review of this type will be more favorable to the occupier than if the premises were to be inspected instantly following an accident. Nonetheless, Mr Copeland was still able to detect some little spots of lubricating oil on the floor. The account that this was due to an stray leak that had occurred on the forenoon of his visit was offered to him but I consider it likely that a tribunal would be prepared to unite the testimony of Mr Grant with a description of the province of the forecourt at a ulterior day of the month and conclude on a balance of chances that oil had so been present. It should be noted that it is non possible to be wholly confident of such a decision in the visible radiation of the denial by McFarlane Contracts and the component of uncertainty that is introduced by our client holding concluded the presence of oil as a consequence of detecting it on his overalls and holding worked on his auto earlier in the twenty-four hours but I remain hopeful that a tribunal could be persuaded that the presence of oil was a factor in this accident.

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The following issue upon which there is range for difference is the general province of tidiness of the premises. Again there are conflicting histories. The client is inexorable that he was obstructed in his work by the presence of other constituents and scrap metal. Not surprisingly, the McFarlane Contracts Accident Report denies the presence of “waste or debris” in the country. It is possibly important that this study is couched in these footings. Our client complains of dust and bit metal and to this extent his history is at odds with that of the residents of the premises. However, McFarlane do non notice upon the possibility of other possible obstructors. The findings of Mr Copeland in this respect are promoting. Although he concludes that the forecourt was in “a comparatively tidy state” , he reports:

“There were tonss of steel pieces and shaves but these were ranged along the walls. There was a little sum of bit metal near the entrance…”

In position of the observations above refering the likely “improvement” of premises between an accident and adept review for the intents of possible judicial proceeding, the recoding by Mr Copeland of the continued presence of such points in the general locality lends weight to our clients history of their presence and part to his accident.

The 3rd and concluding factual issue concerns the weight of the nuggets that our client was required to raise. Mr Grant appears convinced that he was being required to raise nuggets of some 20 kgs in weight. The Rattle Engineering Incident Report refers specifically to “10 kilo steel nuggets” . Mr Copeland addresses the issue of weight therefore:

“I have besides examined and measured one of the 4cm nuggets. It was approximately 20cm long and 4cm deep. I was told that it weighed about 10kg. There was besides another heap of nuggets lying nearby. These looked really similar but were larger and heavier, about 40cm tens 8cm and weighing 20kg.”

Mr Copeland was assured that these were non in usage on the day of the month of the accident and were ne’er handled manually. However, our client studies that he was utilizing the 20kg nuggets. In my position, his remembrance is lent credibleness by the farther observations that he made to Hilary Western:

“In fact he has suffered occasional back hurting and has become discerning about heavy lifting. The company cognize this and they did take the ailment earnestly. Since 2002 they have been utilizing the smaller ( 10 kg ) nuggets instead than old 20 kilo.”

Further support is provided by the observation of Mr Copeland that Rattle Engineering have now introduced a little manus operated portable hoist but that this was non available on the twenty-four hours of Mr Grant’s accident. The account was proffered that this had been ordered prior to the accident but had non yet arrived. This account was so followed by a reaffirmation of the claim that merely the 10kg nuggets were in usage on the day of the month of the accident. I am hopeful that a tribunal would reason that this was non the instance. The ordination and current usage of the hoist tends to propose an effort on the portion of Rattle Engineering to rectify an insecure pattern following an accident. Further, it should be remembered that Rattle Engineering supply such nuggets as portion of their fix service. The presence of 20kg nuggets at the McFarlane mill at the clip of Mr Copeland’s review can non readily be explained unless they had been delivered there by Rattle Engineering for the intent of the fix in which our client was take parting.

I am hence hopeful that the tribunal will be prepared to do the undermentioned findings of fact:

  • That Mr Grant was being required to raise nuggets of 20kg in weight ;
  • That in so making he was impeded by the presence of assorted constituents and trash metal dust ;
  • That the surface of the forecourt was rendered slippery as a consequence of the presence of oil.

4. The Law

I am indebted to those teaching me for pulling attending to the Workplace ( Health, Safety and Welfare ) Regulations 1992 ( SI 1992, No.3004 ) and the Manual Handling Operations Regulations 1992 ( SI 1992, No.2793 ) . Regulation 9 ( 3 ) of the former provides:

“So far as is moderately operable, waste stuffs shall non be allowed to roll up in a workplace except in suited receptacles.”

Capable to a favorable determination of fact as discussed above, I consider that there is a sensible chance of success in carrying a tribunal that McFarlane Ltd are in breach of this statutory responsibility as a consequence of their leting bit metal to roll up in the forecourt.

Regulation 4 of the Manual Handling Operations Regulations provides:

“ ( 1 ) Each employer shall –

( a ) so far as is moderately operable, avoid the demand for his employees to wound ; or

any manual handling operations at work which involves the hazard of their being injured-

( I ) make a suited and sufficient appraisal of all such manual managing operations to be undertaken by them, holding respect to the factors which are specified in the corresponding entry in column 2 of that Schedule,

( two ) take appropriate stairss to cut down the hazard of hurt to those employees originating out of their undertaking any such manual managing operations to the lowest degree moderately operable, and

( three ) take appropriate stairss to supply any of those employees who are set abouting any such manual managing operations with general indicants and, where it is moderately operable to make so, precise information on-

( aa ) the weight of each burden, and

( BB ) the heaviest side of any burden whose Centre of gravitation is non positioned centrally.”

For easiness of mention by those teaching me, the relevant Schedule is reproduced below:

Agenda 1

Regulation 4 ( 1 ) ( B ) ( I )

FACTORS TO WHICH THE EMPLOYER MUST HAVE REGARDAND QUESTIONS HE MUST CONSIDER WHEN MAKING AN ASSESSMENT OF MANUAL HANDLING OPERATIONS

Column 1

Column 2

Factors

Questions

1.The undertakings

Do they affect:—holding or pull stringsing tonss at distance from bole? —unsatisfactory bodily motion or position, particularly: —twisting the bole? —stooping? —reaching upwards? —excessive motion of tonss, particularly: —excessive lifting or take downing distances? —excessive transporting distances? —excessive forcing or drawing of tonss? —risk of sudden motion of tonss? —frequent or drawn-out physical attempt? —insufficient remainder or recovery periods? —a rate of work imposed by a procedure?

2.The tonss

Are they:—heavy? —bulky or unwieldy? —difficult to hold on? —unstable, or with contents likely to switch? —sharp, hot or otherwise potentially damaging?

3.The working environment

Are at that place:—space restraints forestalling good position? —uneven, slippery or unstable floors? —variations in degree of floors or work surfaces? —extremes of temperature or humidness? —conditions doing airing jobs or blasts of air current? —poor illuming conditions?

4.Individual capableness

Does the occupation:—require unusual strength, tallness, etc? —create a jeopardy to those who might moderately be considered to be pregnant or to hold a wellness job? —require particular information or preparation for its safe public presentation?

5.Other factors

Is motion or position hindered by personal protective equipment or by vesture?

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From a consideration of the predating it will be observed that the patterns of Rattle Engineering leave a great trade to be desired. From the Attendance Note it appears that our client was non given any instructions on how to raise and transport the nuggets safely but was merely instructed by the Foreman to “get lifting” . This grounds tends to militate against the possibility that Rattle Engineering had carried out the necessity Risk Assessment. Further, a elaborate consideration of the inquiries posed in the Schedule reveals a figure of possible breaches on the portion of our client’s employer:

  • Raising from the land would hold required stooping ;
  • It is arguable that the nuggets had to be carried an inordinate distance ;
  • The strength of the work combined with the weight involved may hold resulted in drawn-out physical attempt with an deficient period of recovery ;
  • The client studies that the nuggets were slippy and hard to hold on.

I have specifically excluded from the above scrutiny the factors associating to the working environment since it is of import to separate between Rattle Engineering which was the direct employer of our client and McFarlane Contracts which was the resident of the premises upon which the accident occurred.

5. Liability

In sing foremost the liability of Rattle Engineering, it is noncontroversial that every employer owes a non-delegable responsibility of attention for the wellness and safety of his employees. This is often subdivided into consideration of four peculiar responsibilities:

  1. To supply competent staff ;
  1. To provide equal stuffs ;
  1. To guarantee a safe topographic point of work ;
  1. To implement a safe system of work.

In the present context, the 1 and 2 above are improbable to be of peculiar application save to the extent that it might be possible to reason that the way to transport out insecure work issued by the Foreman was a breach of the first responsibility. So far as the 3rd factor is concerned, it is improbable that Rattle Engineering would be held chiefly responsible for the status of the premises and I shall return to this point in the treatment of possible occupiers’ liability below. Of chief significance, hence, is the issue of system of work. InGeneral Cleaning Contractors VChristmas [ 1953 ] AC 180 at 194, Lord Reid stated:

“It is the responsibility of the employer to see the state of affairs, to invent a suited system, to teach his work forces what they must make and provide any implements that may be required…No uncertainty he can non be certain that his work forces will make as they are told when they are working entirely. But if he does all that is sensible to guarantee that the safety system is operated he will hold done what he is bound to do.”

The abovepronouncementclearly envisages the possibility that despite the best formulated safe systems of work, the purposes of the employer can be thwarted by employees neglecting to take sufficient attention for their ain safety. I am confident that this is non the state of affairs in this instance. In this respect, our client is assisted by the grounds which relates to the mode in which he was required to transport out his undertaking. The autocratic direction of the Foreman referred to above belies the being of any decently formulated system. Further, as has been observed, out client had had cause antecedently to kick about the impact of the weight of the nuggets upon his wellness. These concerns were non instantly acted upon but it is important that following the accident a hoist was supplied. ( There is, of class, range for uncertainty despite the protestations of the employer that this had already been ordered at the clip of the accident. I am hence confident ( capable to the necessary findings of fact ) that a tribunal would reason that this was an insecure system of work and keep Rattle Engineering apt for breach of the general responsibility in this respect in add-on to the specific breaches of statutory responsibility described above.

It is indispensable besides to see the possible liability to our client of McFarlane Contracts. While Mr Grant was non of class straight employed by this company, he was injured while on their premises. The jurisprudence modulating the responsibility of residents to visitants to their premises is basically the jurisprudence of carelessness embodied in the particular statutory government of the Occupiers’ Liability Acts 1957 and 1984. Section 2 of the 1957 Act provides:

“ ( 1 ) An resident of premises owes the same responsibility, the ’common responsibility of care’ to all his visitants, except in so far as he is free to and does widen, curtail, modify, or except his responsibility to any visitant or visitants by understanding or otherwise.

The ’common responsibility of care’ is defined by ss.2 as:

“…a responsibility to take such attention as in all the fortunes of the instance is sensible to see that the visitant will be moderately safe in utilizing the premises for the intents for which he is invited or permitted by the occupier to be there.”

In this respect it is necessary to see the ailments of our client in regard of the status of the premises. These autumn into two classs:

  • The presence of bit and constituents organizing an obstructor ;
  • The presence of oil on the land in the forecourt.

From the point of position of the responsibility that is upon McFarlane contracts to guarantee that their premises are moderately safe for the usage of permitted visitants, the possibility of set uping liability on the first of these bases is questionable: Mr Grant does non aver that he was injured or caused hurt straight as a consequence of the obstructors, simply that his lifting and carrying of the nuggets was rendered more hard by their presence. In this regard, hence, I consider it likely that a tribunal would reason that the part to our client’s accident of the obstructors came approximately non as a consequence of any intrinsic danger caused thereby but instead as a consequence of the system of work implemented by the Foreman which failed to pay equal respect to the hindrance posed by the bit and constituents to workmen transporting out the undertaking of raising nuggets as instructed. By manner of illustration, one might compare a state of affairs in which our client had fallen over such an obstruction. I am more optimistic in regard of the 2nd factor: if there was a spillage of oil on the floor at the stuff clip, this would obviously represent a breach on the portion of McFarlane Contracts as resident of their responsibility to guarantee that their premises were moderately safe. This advice must of class be taken as capable to thecautionthat, as discussed above, the presence of oil is a affair of difference and that a determination of liability on this footing is hence capable to an appropriate determination of fact in regard of the oil.

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6. Adept Evidence

In the visible radiation of the above, I respectfully portion the concern of those teaching me that the present study by Mr Copeland may non supply our client with a chance of success appropriate to the virtues of this instance. The decision expressed in the study dated 20ThursdayOctober 2003 is unsatisfactory:

“From the information before me, it does non look that Rattle Engineering Ltd had control, to any extent, over the workplace itself, and in peculiar they had no control over the forecourt and were non responsible for the province or status of the forecourt. McFarlane Engineering Ltd were responsible for the province of the forecourt and appear to hold directed the placement of the equipment and nuggets on the forecourt.”

I respectfully suggest that Mr Copeland be invited to recast his study in the visible radiation of the undermentioned factors: it must of class be conceded that a physical review of the province of premises some 10 yearss after the happening of an accident is will bring forth potentially undependable grounds of the province of the premises at the material clip. However, the observations made by Mr Copeland as to the presence of dust, constituents and oil spillage are persuasive in support of the history given by our client and should be retained. Mr Copeland should so be invited to show specific decisions on the issues of liability outlined above. First, he should be asked to notice upon the safety of the system of work. This will, of class, require certain premises – that the nuggets were above the weight specified in the Guidance Note to the Manual Handling Regulations, that obstructors were positioned as described by our client and that oil was present on the floor. On the footing of such premises, Mr Copeland ought so to be able to show a more forceful decision, viz. that the direction by the Foreman merely to “get lifting” in the prevailing fortunes and in the absence of the necessity Risk Assessment constituted non merely a breach of the specific Regulations but besides a breach of the general responsibility of Rattle Engineering to implement a safe system of work. Consideration should besides be given to the dimensions and physical features of the nuggets with a position to showing whether it was appropriate to necessitate them to be lifted in the mode directed. In this respect, the fact of the subsequent debut of a hoist system should turn out helpful. Further, Mr Copeland has non been relentless in his efforts to obtain transcripts of the written Risk Assessments and manual managing preparation records which are claimed by the employer to be. These points could of class be made the topic of an application for specific find. Tactically, this might be unadvisable since there must be the possibility that placed under such force per unit area the employer will be tempted to manufacture such records. It may be to the advantage of our client to let the tribunal to go cognizant that petitions have been made for their production and pull appropriate illations from their absence.

Further, with regard to Mr Copeland, it is non helpful for him merely to reason that Rattle Engineering were non responsible for the province of the forecourt. He should be invited to see the issue of the liability of McFarlane Limited as resident. Again, since he was non of class nowadays at the clip of the accident, this will affect him holding to do certain premises based upon the history of our client but he should show a position as to the safety or otherwise of these premises based upon the information that is supplied to him. Finally, it is non necessary for the remarks of Mr Ashford specifically to be reported. However, since this is a comment which may emerge at test, Mr Copeland should be invited to see the possibility of hastiness as the footing of an allegation of contributory carelessness. In this respect, it should be borne in head that the placing of an employee under inappropriate force per unit area of clip may in itself constitute an component of an insecure system of work.

7. Restriction and Issue of Proceedings

As those teaching me have observed, the termination of the restriction period in this instance is at hand. Mr Grant blames this upon the alleged dilatory behavior of his former canvassers. Section 33 of the Limitation Act 1980 allows the tribunal a discretion to disapply the restriction period and provides guidelines for the exercising of this power which include:

  • The length of and the grounds for the claimant’s hold ;
  • The extent to which the cogency of the grounds adduced by either party would be affected by the hold ;
  • The defendant’s behavior after the cause of action arose ;
  • The continuance of any disablement on the portion of the claimant ;
  • The stairss taken by the claimant to obtain adept advice and the nature of the advice received.

While I would anticipate the tribunal to be sympathetic to our client, the result of an application to widen the restriction deadline can non be predicted with certainty. It is possible that the tribunal may decline to exert the discretion in favor of our client in which instance his staying redress would be to action his former canvassers in carelessness. The result of such secondary proceedings is hard to foretell since considerations of professional carelessness are so added to an scrutiny of the virtues of the original action. Consequently, I portion the position of those teaching me that it would be unwise to trust upon such a class. As soon instructed, it does non look that the Pre-Action Protocol has been complied with but I however recommend the immediate issue of proceedings as a precautional step.

Beyond this, if I am able in any manner further to help, teaching canvassers should non waver to reach me.

A. Advocate

4ThursdayAugust 2006