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Smith v Notaro Limited, Court of Appeal, 5 May 2006

12 May 2006
The issues

Contributory negligence, Manual Handling Operations Regulations 1992, Instruction (Health, Safety and Welfare) Regulations 1996 – whether failure to risk assess was purely “technical”; respect of responsibilities between employer and site owner.

The facts

The Claimant brought a claim for personal injuries against Notaro Limited. The Claimant was employed by Plumbase as a delivery man. Notaro was the occupier of a building site at Williton in Somerset. The Claimant was delivering some radiators and other plumbing goods to the site. He was carrying the radiators manually by hand. He could have used a sack truck if he had wished to do so. There was a perimeter path around the two houses to which the Claimant was delivering radiators which had been made up. At the front of each house was a small front garden on which top soil had been laid. Across the top soil, leading from the houses to the front walkway, was a walkway consisting of a line of three planks laid on the top soil. This provided access to the front entrance to each house. Across the driveway entrance was a wire fence which was easily movable to permit access to the perimeter pathway. The Claimant made five or six trips up and down the plank. On the last trip, as he stepped on the end of one of the planks, it gave way beneath him and as a result he fell down with a heavy jolt injuring his back. The Claimant alleged a breach of Regulation 5(1) of the Construction (Health, Safety and Welfare) Regulations 1996, in other words, failure to provide as far as was reasonably practicable a suitable and safe access and egress to and from every place of work provided for the use of any person at work. Notaro brought a Part 20 claim against Plumbase alleging a breach of statutory duty owed to Mr Smith under Regulation 4(1) of the Manual Handling Operations Regulations 1992 i.e. that an employer shall, as far as reasonably practicable, avoid the need for employees to undertake any manual handling operations at work involving a risk of their being injured and where it was not so practicable to undertake a suitable and sufficient assessment of all such manual handling operations. The Recorder who heard the claim found for the Claimant against Notaro finding a breach of Regulation 5 of the 1996 Regulations. He found Mr Smith contributorily negligent to the extent of 60%. As between Notaro and Plumbase he found Plumbase in breach of Regulation 4 and apportioned the remaining 40% liability one third to Notaro, two thirds to Plumbase. Plumbase appealed arguing that the Manual Handling Operations Regulations breach was a purely technical one and not causative of the Claimant’s accident and secondly that the apportionment was unjust.

The decision

The Regulations envisage and provide for training by an employer of his employee in risk assessment as was decided in O’Neill v DSG Retail Ltd. One of the duties of an employer under Regulation 5 is to train an employee in risk assessment relating to manual handling operations being carried out on uneven and unstable surfaces. The Recorder had expressed the duty as an instruction that “when you are carrying something, don’t walk on any surface which may give way beneath you”. Although that appeared to be common sense and obvious, proper training under the Regulations would require such a warning to be impressed upon the minds of employees. Moreover, in the context of deliveries to building sites it required an employer to train and/or warn an employee about the inherent dangers of carrying loads along temporary walkways.

It was argued for Plumbase that the fact that the Recorder had held the Claimant to have been more to blame for the accident than Notaro prevented a finding that the breach of duty was causative of the accident. This was contrary to the approach taken in O’Neill v DSG Retail Ltd. In that case the Court held that an employer would not be able to escape liability for a breach of statutory duty even though it had been brought about by the act or omission of its employee who claimed damages for the breach unless he could prove that his breach was no more than that created by his employee, i.e. that it was co-extensive with the employee’s breach and moreover that he had done all that he reasonably could to ensure compliance with the regulations by the employee. In this case the Defendant’s arguments got no where near surmounting the high standard of proof necessary to shift the entire blame for the accident onto the Claimant. Had the Claimant received training warning him of the dangers of carrying goods over uneven and unstable ground obviously the risk might be he might have stopped before doing so and in which case would have paid greater attention to the alternative route which was available to him. The Recorder had therefore been right to conclude that the breach of statutory duty on the part of Plumbase was causative of the accident.

As to the apportionment there was no escaping the fact that Notaro were responsible for the unsafe walkway. As against that the breach on the part of Plumbase, though not merely a technical one, was in respect of a lack of training in an area which involved little more than the exercise of common sense. Taking into account the respective causative potencies of the faults of each of the parties this was a suitable case of the Court of Appeal’s intervention. The Recorder’s finding was wrong and the apportionment would be reversed.

To that extent 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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