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Pennington v Surrey County Council, Court of Appeal, 9 November 2006

24 November 2006
The issues

Accident of fire fighter involved in an emergency rescue; employer liability; safe system of work; Provision and Use of Work Equipment Regulations 1998 Regulation 4; Provision and Use of Work Equipment Regulations 1998 Regulation 11.

The facts

The Claimant was an experienced fireman who injured the top of his left forefinger in the course of his employment on the 1st February 2001 when, with fellow fireman from Esher Fire Station he attended a serous multiple road accident on the M25 between junctions 10 and 11. A Rapid Intervention Vehicle from Chertsey, with its crew, also attended the incident. The driver of a heavy goods vehicle involved in the accident had been critically injured and was trapped in his compressed cab. Repeated efforts by the Claimant were made to rescue the driver, in the course of which the injury occurred. The Claimant had taken over the rescue attempt from a leading fire fighter from the Chertsey station who had become overwhelmed by fatigue and exhaustion. The Claimant was told that the situation was urgent by paramedics. Notwithstanding the rescue attempts the driver in fact subsequently died. The firemen had used a piece of equipment called a 1040 Holmatro Ram which was a powered t-shaped spreading device. The Claimant was not familiar with this ram. He generally used the Holmatro 1020 Ram which, though similar, was substantially lighter than the 1040. As he was using the ram he trapped and injured his finger. It was alleged by the Claimant that the Defendant was liable on the basis that contrary to Regulation 4 of PUWER the equipment was not suitable for the purpose and in respect of Regulation 11, that no information, instruction, training or supervision was given. The Judge found that the 1040 ram was unsuitable within the meaning of Regulation 4. Although critical of the Defendant for failing to provide specific training no specific findings were made by the Judge in respect of Regulation 11.

The Defendant appealed.

Having regard to the good safety record of the 1040 ram the Court could not say that it was an unsuitable piece of equipment for the relevant operation within the meaning of Regulation 4. Operated by properly trained and instructed personnel it was suitable. This had been the view of the Court of Appeal in Griffiths v Vauxhall Motors Ltd when it noted that Regulations 4 and 5 were concerned with the physical condition of the equipment on the assumption that they would be properly operated by properly trained and instructed personnel.

Could the Judge’s decision be upheld on other grounds, ie negligence and breach of Regulation 11 of the 1998 Regulations?

The Defendant had argued that it had done all that was reasonably practicable, having regard to the circumstances, to ensure the safety of the Claimant and to secure a safe work environment. The Claimant had been put in a situation where, if the rescue attempt was to continue, it had to be with the 1040 ram. He had no opportunity what equipment ought to be used. It was unrealistic to conclude that the Claimant should not have continued with the rescue attempt. He was placed in a situation which the Judge had found to be foreseeable, namely that he was likely to continue with the rescue attempt, but to do so with equipment on which he had no training or experience and which was substantially heavier than the equipment on which he had been trained. The Defendant had submitted that it was impracticable to train the Claimant on the equipment and that it was unnecessary. But it was because equipment might have to be used in difficult and urgent situations that training upon it and familiarity with it were particularly important. The Claimant’s unfamiliarity with the ram was causative of the accident and given sufficient training and experience he would probably have been able to manage it without his hands slipping as it did.

Comments

Lord Justice Neuberger dissented on the basis that the Trial Judge in the course of his Judgment had made no criticism of the training provided at all. This did not mean automatically that it was impossible for the Court of Appeal to come to the conclusion that the training was insufficient, but it did mean in his view that the Court had to be very careful before they could make such findings and that it was potentially an unfair and dangerous procedure for the Court to reconstruct a case on facts or inferences from fact which were not the subject of argument and which were therefore unlikely to have been the focus of evidence or cross examination below.

There had been no evidence before the Trial Judge that the Claimant’s training on the 1020 ram, while satisfactory for the purposes of that ram, was unsatisfactory if he was to use the 1040 ram. Although it was true that the 1040 was 30% heavier and had two arms rather than one, those differences could not themselves, and without more, justify the conclusion that training on the one was insufficient for the other.

Moreover there had been evidence from the station commander to the effect that it would not be practicable to train officers on the various types of rams but that the operating principles were the same for each. He commented “I do have difficulty with the notion that you can uphold the decision in favour of the Respondent on the ground that the Appellant did not train the Respondent on the 1040 ram as opposed to the 1020 ram when the only evidence on the issue was the unchallenged testimony that it was unnecessary to train the Respondent on the 1040 ram”.

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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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