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Ellis v William Cook Leeds Ltd, Court of Appeal, 1 December 2007

20 December 2007
The issues

Employers Liability – Crane – Safe system of work – contributory negligence.

The facts

The Claimant was employed by the Defendant company as a shot last man. He was ages 38 and was experienced. He worked as a shot last man since January 1997 and had been employed by the Defendant since September 1989. His job involved in moving steal castings from the full heat treatment area of the Defendant’s works to the blast area. Castings were loaded onto trays resting on racks in turn resting on a series of cross beams. The operator moved the trays from the racks to the blast furnace using an over head crane operated by a hand held control at the end hanging cable. The crane operator could move around whilst he was doing it. Crane had 4 chains attached at a higher level with a hook at the end of each chain which hooked into eye holes into each corner of the Temper tray. Sometimes the casting did not rest securely on the tray and might shift or fall off. This happened quiet often. If it was small enough it would have to be man handled back onto the tray but heavier castings had to be moved by using the over head crane. If a casting fell from a tray and fell into a gap between or under the racks and jammed between the racks it would be very foolish for the operator to try to lift it using the crane.

Mr Ellis’ accident happened on 5th April 2004 in the morning, a casting had fallen from a tray into a space beneath the racks. It was too heavy to lift by hand. Mr Ellis went to pick up the casting with his crane. But when he tried to pick it, it was jammed whether (later in evidences in cross examination he could not remember whether it was jammed or not). Generally he remembered nothing of the accident himself although he had called others in the vicinity who had given evidence. The evidence was that he attached one of the hooks of the crane to the casting as he had done in many previous occasions. Then he pressed the button on the control to raise the casting to put it back on the tray and this was the last he remembered. He was struck in or around the face by the hook that he just attached to the casting or possibly by the chain. He was knocked backwards and lost consciousness and was badly injured. No witness actually saw the accident although witnesses saw the chains of the crane swinging violently after it. After the accident one the hooks from the crane was inspected and found to be bent beyond the normal tolerance. It was a reasonable inference that the casting was or became jammed and there was evidence from one witness that it was seemed to be jammed after the accident. The Judge found that it was likely that the casting had become jammed which was reasonably foreseeable but it was not likely that Mr Ellis continued lifting when the casting became jammed but instead most likely that he had stop lifting that the crane had continued to lift which he said in evidence was sometime apt to happen. The Judge found that the working practice was inherently dangerous and found for the Claimant deducting 25% for contributory negligence because he stood too near the crane.

The Defendant appealed.

The decision

There was no evidence for the Judges finding that the accident occurred because the crane continued to move after Mr Ellis took his finger off the control button. The question was not whether the crane continued to move either by 1 or 2 inches as Mr Ellis claimed or any amount but whether the crane would continue to move, exerting a diminishing lifting power after the power was taken off. In the absence of expert evidence this was so inherently unlikely that the Judge should have rejected it as part of his finding of the mechanism of the accident.

Neither the parties nor the Judge at the trial concentrated sufficiently on the true reason why the Claimant was hit in the face. This was not because of the fact that the casting jammed but because the hook under some load had become detached from the casting. The most likely explanation was that the hook under load had become detached and deformed in the process. What was unclear was whether the hook had become detached only because it deformed or because it was insecure in the first place. The attempt to move the casting that was at risk of jamming by means of a hook which would slip under the load was intrinsically dangerous. It was possible that the hook would slip whether it was deformed or not and there was no challenge to the finding it was reasonably foreseeable that the casting might have become jammed and that using the crane to lift in those circumstances was not a safe system of work.

The Judge’s finding on liability was correct. His reasons were not however. Using a crane using these hook to move a slipped casting was not a safe system of work.

Mr Ellis’ training however had included the fact if the casting was a stig he should have obtained help from a supervisor. It was not sensible for him to attempt to perform the operation in these circumstances standing where he was and his experience should have told him it was unsafe. In these circumstances the contributory negligence found by the Judge was too low and should assessed at 50% and to that extent the appeal would be 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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