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Berry v Kendal Calling & others, Court of Appeal, 10 October 2011

6 January 2012
The issues

Interim payment – employer liability – Baker v Quantum – Electricity at Work Regulations 1989.

The facts

Kendal Calling Ltd promoted and organised a music festival near Penrith. They contracted with Ashtead Plant Hire Company Ltd to provide a number of accommodation units. Ashtead arrange for the delivery of the units by contracting with Star Auto’s Ltd to collect and deliver a few days before the festival began. One of the Star’s employees, Donald Berry was delivering the units in a lorry with a mounted crane when either the crane or the accommodation unit came into contact with a live over head power cable. Mr Berry was electrocuted and suffered appalling injuries resulting in brain injury and inability to communicate or move. He needed 24 hour care. He commenced proceedings against Star Auto’s, Kendal Calling, and Ashtead. Of the three Kendal Calling was not insured. Kendal had appointed Piper Event Services as its health and safety adviser and manager for the festival and they were joined as a fourth defendant after the proceedings had been issued and served against the first three. Piper was insured. There was uncertainly as to how the accident had happened. The claimant had no recollection. He sought an interim payment. He issued an application against Star Autos, Ashtead and Piper. The judge found that raising a crane on the porta-cabin underneath a live power cable was an unsafe practice and therefore an unsafe system of work. He also found breaches of Regulations 4 and 14 of the Electricity of Work Regulations 1989 which provided that every work activity had to be carried out “in such a manner as not to give rise, so far as is reasonable practicable to danger” and that no person was to engage in any work activity near any line conductor (other than one suitable covered in insulating material) so as to give rise to danger. He found that Mr Berry’s employer or the person in control of Mr Berry could not escape these responsibilities. Since there was a dispute between Star and Ashtead as to who was the employer or the person in control, he could not be satisfied that either of them would be liable to Mr Berry but was quite satisfied that one of them would be. He therefore found that the requirements of rule 25.7(1)(e)(ii) CPR was satisfied as ‘the defendants’ had to mean the defendant against whom the application for interim payments was made and it did not therefore matter that the second defendant Kendal was not insured. (CPR 25.7(1)(e)(ii) provides “in a claim in which there are two or more Defendants an the order is sought against any one or more of those Defendants [the court may make an Interim payment] if (i) the court is satisfied that, if the claim went to trial, the Claimant would obtain judgement for a substantial amount of money … against at least one of the Defendants (but the court cannot determine which); and (ii) all the Defendant are either (a) a Defendant that is insured in respect of the claim; (b) the Defendant who’s liability will be met by an insurer under s.151 of Road Traffic Act 1988 or an insurer acting under the Motor Insurance Beaureau agreement, or the Motor Insurance Beaureau where it is acting itself; or (c) A Defendant that is a public body)”. The judge decided that it was too soon to make any such order against Piper who had only just been served, but he did make order requiring Star Auto’s to make a payment of £75,000 and Ashtead to make a payment of £175,000. Ashtead appealed.

The decision

Ashtead argued that it was possible that neither it nor Star would be found liable and it if it were shown that either Star or Ashtead were liable the rule only applied if all the defendants were insured which was not the case since Kendal, although not a defendant to the interim payment application was a defendant to the action who was un-insured. Taking these points in reverse order;

(i) CPR25.7(1)(e)
On a proper construction of the rule it had to be the case that the meaning of the word ‘the defendants’ in the relevant part of the rule could only mean the defendants against whom the interim application was being made. This view was supported by the wording of the rules of the Supreme Court Order 29 Rule 11. It was difficult to believe that the framers of the rule, whilst relaxing the requirement in the old rule intended to refuse relief if it was the case that the defendant was not being asked to make an interim payment at all happened to be uninsured.

(ii) Star or Ashtead?
(a) In negligence. There was no evidence that either defendant did not train Mr Berry or assume correctly that the other had done so. Nor was there any evidence that they ought to have known he was going into an unsafe environment.

(b) Failure to provide a safe place and system of work. Problems arose when the place where the accident happened was under the control of the employee as was the case here. Neither Star nor Ashtead were present at or exercised any control over the site of the music festival. The authorities showed that the question of whether an employer had discharged his duty to take all reasonable steps to provide a safe place or safe system of work at a place which was not under his control was a fact sensitive enquiry. It was arguable that Ashtead and Star had failed to discharge their duty by not making enquiries of Kendal as to the existence of any significant hazards on the site. It was not, however, so clearly right on the facts so as to justify summary judgment against the employer, whoever he might be. The case was too fact sensitive for the court to be satisfied that either Ashtead or Star must be liable.

(c) Electricity at Work Regulations 1989 – it was arguable that the operation use of the crane in relation to the live overhead power cable was not within the control of either employer. The fact that either employer might have had the power to undertake a risk assessment did not necessary mean that the operation and use of the crane was under the employers control since power and control were not identical concepts – see McCook v Lobo. Moreover the presence of the words “so far as is reasonable practicable” in the regulation brought in considerations comparable to common law negligence. This was so held by the Supreme Court in Baker v Quantum Clothing Group, although that was in connection with the Factories Act 1961 rather the EU inspired Electricity at Work Regulations. It was arguable, however that the word should receive the same construction both in domestic and EU inspired legislation. Stark v The Post Office was distinguishable because those words were not present in the regulation therein considered. Thirdly it was arguable that for the purposes of the regulations Mr Berry was in greater de-facto control of the crane than his employer and it was Mr Berry’s own breach that was causative of injury.

Appeal allowed.

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