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Sherlock v Chester City Council, Court of Appeal, 26 February 2004

24 February 2004
The issues

Provision and Use of Work Equipment Regulations 1998 – Manual Handling Regulation 1992 – Contributory Negligence – Risk Assessment.

The facts

The Claimant was a Joiner, who had been employed by the Council since 1996. On the 13th January 2000, he and another Joiner were replacing wooden window frames and wooden fascia boards on Council houses with new UPVC window frames and fascia boards. This was part of a planned maintenance programme, which had started in April 1999. The Claimant had joined the Maintenance Team in August 1999. At the Claimant’s request, he was provided with a portable bench saw to trim the fascia boards. He and the other Joiner, Mr Webb were given instructions that the saw was to be unplugged whenever left unattended and when not in use was to be kept in a van on site. No risk assessment was carried out, nor were any instructions or training given to the Claimant and Mr Webb, since they were thought experienced enough to know how to use such a saw safely. The boards to be cut were 5 metres long and the bench only a few feet long. As a result, the boards, which were flexible, bowed out as they passed over the saw bench unless supported. No run off bench was provided. The Judge found that the Claimant had not requested one. On the 13th January when using the saw, he lost his left thumb and index finger. He thought it might have happened when he sneezed or coughed when using a push stick which caused him to move suddenly or stumble forwards putting his hands out in front of himself and down on the saw bench. In his statement to the Health and Safety Executive in February 2000, he repeated an early addition to his account, namely that there had been a very loud bang possibly caused by kick back from the saw blade. At that time, he considered there must have been something wrong with the type of blade. At Trial, he repeated that the first thing he knew that was wrong was the loud bang and thought that what had happened was that the far end of the board had snagged on the ground and that the board had then “bellied up” on the bench before the fascia board freed itself causing it to shoot forwards quickly towards the blade. He denied that what in fact had happened was that he had come to the stage where he should have used a push stick to feed the fascia towards the saw blade rather than his hand. There was no other witness other than the Claimant. The Judge found that the Claimant could not say what had actually taken place, having given different accounts and now having at Trial put forward an explanation, which really amounted only to yet another theory. He was not satisfied that the Claimant had been injured as the result of the events that he had described in evidence. It was submitted that it would have made no difference had the Claimant been given additional training or instruction. Whilst it was conceded that there had been a breach of Regulation 20 of the Provision and Use of Work Equipment Regulations 1998 “every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise when necessary for purposes of health or safety”. The breach was not causative of the accident and he dismissed the claim. The Claimant appealed.

The decision

1. Although the Judge had rejected the Appellant’s account, he had concluded that it should have been obvious to the Claimant that he should either have had a run off table or a second man involved that should have kept his hand from the saw blade and that the fact that he chose not to follow this procedure was a reason for the accident. To this extent, the lack of a run off table or second man was the cause of the accident. Risk assessment would have identified this as a requirement and should have been carried out. It need not have been a formal risk assessment but there should have been some informal assessment identifying the need for the run off table or presence of the second man.

2. Although the Claimant was well trained and experienced, that did not in itself meet the common law requirement that the Defendant should provide proper equipment and a safe system of work. At the least, the question should have been asked as to what was required.

3. Regulation 9 provided that every employer should ensure that anyone using work equipment received adequate training, including training and the method to be adopted when using the work equipment and any risks which such use might entail and the precautions to be taken. There was nothing to suggest that the Claimant was not trained sufficiently for the purposes of using the workbench. There was therefore no breach of Regulation 9.

4. Regulation 8 provided that anyone using work equipment should have available to them adequate health and safety information and where appropriate written instructions relating to the use of the work equipment. There was a breach of Regulation 8 in that the need to use a run off bench could and should have been identified and the appropriate instruction given. It was not a justifiable conclusion that had such instructions been given, they would have been ignored by the Claimant. There was therefore in addition, a breach of Regulation 4 of the Manual Handling Regulations 1992. (Every employer as far as reasonably practicable should avoid the need of his employees to undertake manual handling operations which involve a risk of their being injured and where not reasonably practicable, to make a suitable and sufficient assessment of such operations and take steps to reduce the risk of injury and to provide employees with information as to the weight of any load and the heavier side of any load or centre of gravity if not positioned centrally).

5. The negligence of the Defendant and the breaches of statutory duty were a cause of the accident and the Appeal would be allowed.

6. As to contributory negligence, whilst it was the case that it was not usual for there to be significant findings of contributory negligence in breach of statutory duty cases (see Toole -v- Bolton Metropolitan Borough Council). This was a case, which was distinguished from cases where the injury was caused by momentary inattention on the part of an employee. Here, a risk had been consciously accepted by an employee and different considerations applied. This was particularly so where the employee was skilled. The Claimant could have made himself a run off bench or ensured that Mr Webb was there when he cut the board. His responsibility would be assessed at 60%.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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