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Hall v Jackto Transport Limited, Court of Appeal, 13 October 2005

25 November 2005
The issues

Provision And Use Of Work Equipment Regulations 1998 Section 5

The facts

The Claimant was a HGV driver who frequently had to use a torque wrench provided by his employer to change wagon wheels. He had used similar tools throughout his career. He had worked for this employer for three years at the time of the accident and was familiar with the particular wrench which he had used during that time. Mr Hall said that the accident had happened when, as he applied downward pressure to the handle of the wrench, the handle gave way.

The wrench struck his leg and he fell over. There were not witnesses to the accident. The manager and the Office Manager both gave evidence to the effect that after the accident the Claimant had not said anything about the wrench being the cause of the accident. A consultant engineer instructed as a joint expert had inspected the wrench 10 months after the accident and found nothing wrong with it. He could not explain how the accident could have happened in the way the Claimant said without the wrench being unfit for use afterwards.

He envisaged one possibility which seemed to be unlikely namely that the ratchet had malfunctioned due to the presence of dust in its mechanism. The shock of sudden movement might have disturbed some of the dust so that the cause of failure would not be apparent immediately afterwards. He went on however to express the view that dust in the ratchet was not a reasonable explanation for the accident. His final conclusion was that he could find no explanation.

The Judge found that the Claimant was honest and straightforward and three of the Defendant’s witnesses to be unsatisfactory. He found as a fact that the Claimant was not standing on the wrench at the time of the accident. He concluded that either there was a defect in the wrench or the wrench acted as it should have done and the Claimant had misjudged the point at which it would operate. He concluded that he believed the Claimant and that he found the accident had happened as he alleged and that was due to an unexplained defect in the wrench. The Defendant appealed.

The decision

The Judge had considered the Claimant’s credibility in isolation from the expert evidence rather than in the light of the expert evidence. He had reached preliminary or provision conclusions as to what had happened before he considered the expert evidence. When he did so, he did so only to ascertain whether it caused him to change his mind. That was an error of approach.

÷. The expert evidence was relevant to the way in which the accident could or might have happened the Judge had to consider it at the time when he was reaching his conclusions as to the credibility of the witnesses.

See Mibanga v Secretary of State for the Home Department [2005] ewca civ 367.

Upon review of the evidence the Claimant had proved on the balance of probabilities that the accident was caused by a sudden and unexpected and abnormal downward movement of the wrench causing him to lose his balance and fall forward.

The accident was probably due to a defect within the ratchet which was probably caused by dust or grit. Although the expert had said this was unlikely it appeared more likely than the alternative theory of operator error. That was so because it is unlikely that this Claimant would over estimated the necessary force and the fact that there was no history of other such errors which supported that view. Appeal dismissed.

Comments

Lord Justice Pill agreed with Lady Justice Smith’s Judgment but noted that if he had decided the case on paper he would have found for the Defendant on the basis that a defect had not on a balance of probabilities been established. However the Judge had heard evidence and had seen the Claimant and had formed a good impression of him. He had found him honest and straightforward. On this basis and after hesitation Lord Justice Pill was prepared to agree with Lady Justice Smith.

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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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