JOHN JOSEPH PENNINGTON v SURREY COUNTY COUNCIL & SURREY FIRE AND RESCUE SERVICE [2001] EWCA Civ 1528

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHICHESTER COUNTY COURT

HIS HONOUR JUDGE BARRATT

4C100257

[20061 EWCA Civ 1493

Case No Case No: B3/2006/0110 B3/2005/2931

Venue Royal Courts of Justice Strand., London. WC2A 2LL

Between

JOHN JOSEPH PENNINGTONAppellant

SURREY COUNTY COUNCIL & SURREY FIRE AND RESCUE SERVICERespondent

Before

Lord Justice Pill

Lady Justice Arden

Lord Justice Neuberger

MS L JOHNSON (instructed by Messrs. Weightmans) for the Appellant

MS K AWADALLA (instructed by Messrs George Ide Phillips) for the Respondent

Hearing date: 6 July 2006

Date 9 November 2006

Lord Justice Pill:

This

[1]is an appeal against a reserved judgment of His Honour Judge Barratt QC, sitting at Chichester County Court on 4 December 2005, whereby he gave judgment in the sum of £3,115 (including interest) in a personal injury action brought by Mr John Joseph Pennington ("the respondent"). Why there are two Surrey parties is not clear to me; it was claimed in the particulars of claim, and admitted in the defence, that the respondent was employed by them both as a fire fighter. Nothing turns on the point and I will refer to them jointly as "the appellants".

[2]The respondent, a very experienced fireman, injured the top of his left forefinger in the course of his employment on 1 February 2001. With fellow employees at Esher fire station, he attended a serious multiple road accident on the M25 between junctions 10 and 11. The Rapid Intervention Vehicle from Chertsey, with its crew, also attended the incident. A heavy goods vehicle had driven into the rear of another heavy goods vehicle and its load had moved on collision. The cab of the second vehicle was compressed as a result of the impact. Its floor pan was pushed up and the dashboard pushed back blocking access into and from the cab. The driver in the cab had been critically injured and it was vital to move him as soon as possible.

[3]The respondent sustained his injury during repeated attempts by him to rescue the driver. The respondent had taken over the rescue attempt from a leading fire fighter from the Chertsey station who had been "overwhelmed by fatigue and exhaustion" and had been unable to continue the rescue attempt. The respondent was made aware of the urgency of the situation by paramedics. Notwithstanding dedicated rescue work by the respondent and others, the driver subsequently died.

[4]The equipment used for the rescue attempt was a 1040 Holmatro Ram. This is a powered T-shaped spreading device. The two arms of the T were each capable of extension to force apart objects with which they were in contact. The main handle is at right angles to the arms. The minimum length across the arms is 700mm and the maximum length 1100mm, giving a total extension of 400mm, or 200mm on each side. The equipment weighs 16.5 kgs. To create the extension, a piston, with a serrated pad at its end, emerges from a housing on the arm of the T.

[5]The respondent was not familiar with the Holmatro 1040 ram which was not kept or used at his station. The equipment he normally used in such circumstances was the Holmatro 1020 ram. While of similar design, it was substantially lighter than the 1040. The 1040 was from the Rapid Intervention Vehicle from Chertsey Fire Station and had been selected for use at the scene by a leading officer from Chertsey, who was the most senior officer there and, made the first rescue attempt.

[6]The attempt involved the rescuer entering the cab of the vehicle. The respondent made several attempts to achieve a spread between the floor pan of the cab and the dashboard. He unsuccessfully attempted to obtain "purchase" on the collapsed dashboard. No point of sufficient resistance could be found. He was wearing two layers of gloves; anti-contamination gloves and fire craft gloves. These had a high structured surface to enhance grip. Because of the damage, he was unable to see the entire length of the arm of the ram with which he was attempting to obtain purchase.

[7]The respondent became aware of a pinch in his glove and, when he removed his hand from under the dashboard, he saw that his finger was injured. It had been trapped between the housing of the arm and the extension as it had been retracted into the housing. He required immediate medical assistance, which was available nearby.

[8]In view of the judge's finding as to how the accident happened, it is necessary to consider further dimensions. We have seen photographs of the ram. The total extension being 400mm, the extension on each side must be 200mm. While the precise make-up of the agreed unextended length of 700mm across the arms is not agreed, it is plain from the photographs that the housing on each side of the box at the junction of the T is about twice the length of that junction box, giving each housing a length of about 280mm and the junction box about 140mm. Even held near the junction box, grip would be approaching halfway along the housing, having regard to the breadth of a human hand.

The judge made a clear finding as to how the accident happened:

"He [the respondent] realised too late because he was unaware and he could not actually see the top of the ram, that in his strenuous efforts to save the man's life, that his left hand had in fact slipped up the body of the ram to a place where the piston of the ram retracted into the housing"

. Reference to the transcript shows that the judge was entitled to find that there had been such a slip. The respondent stated:

"In order to lift the ram to re-position you have to physically lift it. It's not possible that you could slide it. You have to physically lift it and re-position it in place and obviously, in doing that, the hand had just, by presumably the weight passing down and the fact that maybe I was becoming more and more tired, the hand had slid up the shaft and obviously into that area"

The respondent added:

"Well to be honest with you, I wouldn't put my fingers in there if my hand hadn't slid up the shaft. It's as simple as that."

[10]Post-hearing written submissions have been invited, and submitted, in this case, for reasons which will appear. The respondent's case was pleaded in breach of statutory duty and negligence, the breach of statutory duty being under Regulations 4 and 11 of the Provision and Use of Work Equipment Regulations 1998 ("the 1998 Regulations"). Regulation 4 provides:

"Suitability of work equipment 4. - (1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. (2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. (3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable. (4) In this regulation "suitable" means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

[11]At the material time Regulation 11 provided, insofar as is material:

"Dangerous parts of machinery 11. - (1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective - (a) to prevent access to any dangerous part of machinery or to any rotating stock-bar; or (b) to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone. (2) The measures required by paragraph (1) shall consist of- (a) the provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then (b) the provision of other guards or protection devices where and to the extent that it is practicable to do so, but where or to the extent that it is not, then (c) the provision of jigs, holders, push-sticks or similar protection appliances used in conjunction with the machinery where and to the extent that it is practicable to do so, but where or to the extent that it is*not, then (d) the provision of information, instruction, training and supervision."

[12]The allegation under Regulation 4 was recorded by

the judge at paragraph 22 of his judgment:

"The claim alleges a breach of statutory duty arising from the Provision and Use of Work Equipment Regulations 1998 (PUWER). It is alleged the injury arose because there was no protective collar or safety guard to stop the entry of a finger into the danger zone as had occurred here. ... It is alleged that this was a risk of injury known to the defendant from its common occurrence during the original training on the equipment when first introduced. No steps of the sort required had been made to adapt the equipment to eliminate or minimise the risk of this injury."

[13]The judge recorded, at paragraph 26, allegations of negligence made by the respondent and those included, specifically, a "failure to provide information, adequate training in the use of the Holmatro 1040 ram."

[14]At paragraph 28, the judge noted the appellants' submissions that "all suitable training had been provided with suitable and safe equipment." The appellants' witness, Mr Ridell, Station Commander at Epsom, said in evidence:

"It would not in any event be practicable for us to train officers on the various types but, in any event, the operating principles are the same, so I'm saying when they're on station the training is only carried out on the equipment available on that station"."

The judge added, at paragraph 29:

"In any event they [the appellants] contend that it was for the claimant to assess what equipment ought to be used and how it should used in a particular situation. Therefore the claimant's decision to use this equipment is evidence that he thought it was reasonably safe to use it and it was appropriate and suitable in such conditions. Given he was supplied with and using proper protective clothing, the defendants had done all that was reasonably required to render an employee safe. "

[16]That approach is consistent with the appellants' post-hearing written submissions:

"... fire fighters must put their own health and safety first, however unpalatable the consequences and, if they cannot follow their training, they should not take the action under consideration."

[17]Thus a broad range of issues was covered in evidence and in the judgment. However, the respondent's counsel appears to have accepted that the appellants' duty to provide a safe system of work was "no more onerous or different from the statutory duty".

[18]The hearing before the judge had been adjourned part-heard for some months to enable the appellants to enquire of the manufacturers of the ram what their risk assessments had revealed. The manufacturers responded by referring to the "complete absence of any known incident of a similar occurrence to that which occurred here". They also referred to the compliance of the equipment with various regulatory and trade standards. In his judgment, the judge referred to that evidence and to the appellants' submissions before him. They submitted, as did Miss Johnson before this court, that the equipment was suitable for the purpose for which it was provided and was being used, provided it was operated correctly. It was purpose designed for work of this type and had been used successfully worldwide for many years. The manufacturers had not considered it appropriate to include a protective cuff or guard on the equipment. The appellants were entitled to rely on the experience and judgment of the user of the equipment and warnings to employees to take care to ensure that they did not put their fingers in the paths of moving parts. In evidence, the respondent said: "Obviously I am still acutely aware of the dangers in that area".

[19]The judge stated, at paragraph 35 of his judgment, what he considered to be the central issue in the case:

"35. The central issue in this case therefore is whether merely warning its employees of the need to keep their hands away from the moving parts of a Holmatro Ram when retracting the ram ends was a reasonable and sufficient precautionary response by the employer to protect an employee against what is an inevitable risk to his health and safety given the very demanding and highly stressful working conditions to which all fire fighters may be exposed, when seeking to save others lives."

[20]The judgment is, with respect, somewhat difficult to follow in some respects because, while much of it, reflecting the submissions by the parties, was concerned with Regulation 4, and an assessment of the extent of the risk presented by the potential trapping point between the retracting arm and its housing, issues relevant to Regulation 11 and to negligence at common law were also considered,

[21]As to what the respondent could and could not, because the dashboard was out of view, see,

the judge held, at paragraph 12:

"While he could see the body of the ram from where he crouched in the nearside doorway of the lorry he could not see the end of the housing into which the ram piston retracted"

. Thus the pinch point was out of sight.

[22]In the course of his judgment, the judge made a series of findings:(a) The judge found, and was fully entitled to find, that the respondent was a "dedicated and conscientious fire fighter" who had served the community well for over twenty years and was "willing that day to go to any reasonably practicable lengths if he was able to do so consistent with his own safety to attempt to move the dashboard of the lorry". He was doing what was expected of him in such a grave emergency. The respondent was "tiring rapidly from the task and the stress".

(b) During training on Holmatro rams, when first introduced, the pinching hazard had been identified as a "routine occurrence" during initial training.

(c) The respondent had been trained on the Holmatro 1020 ram which, at 12.5kgs, was 4kgs lighter than the 1040. This figure is now agreed. The judge was working on a smaller weight differential between the two types but the cited difference is consistent with the evidence of the appellant's witness that the 1040 was heavier by up to 35%. The respondent's training had not been on the larger and much heavier 1040 which was not a piece of equipment carried by the Esher based team.

(d) A "clinical assessment" of the use of the ram belied, the judge found, "the practical problems and challenge of this and no doubt many other situations which can or could arise both in training, in testing trials and in everyday life emergency situations." The judge was not aware that these considerations had been fully appreciated either by the fire service in this case or the manufacturers of the equipment.

(e) The risk of injury by trapping of fingers had been identified many years before. On the facts of this case, the equipment was not suitable. It had not been either designed, manufactured or modified with any form of guard to cover the point to which the ram end retracted at the top of the housing.

The judge concluded, at paragraph 45:

"In my judgment equipment is hardly suitable when assessed by reference to a significant degree of risk of permanent injury to a limb in conditions where a fireman is rightly and inevitably focused on trying to save a man's life"

. The judge went on to find (paragraph 46) that it would be for the employer or his supplier of the equipment to show that other possible measures could not be reasonable practicable.

[24]At paragraph 48

the judge stated:

"To leave it all to the employee to ensure he did not do what experience during training trials demonstrated a trainee could so easily in fact do is in my judgment neither reasonable or indeed acceptable. The degree of risk involved given the hazard and the likelihood of its occurrence must in my judgment render this equipment in the working conditions in which it was used and for which it was designed to be used unsuitable and inappropriate unless adapted to reduce or eliminate the risk. This case only too well demonstrates the reality of what can occur and was foreseeable."

That is a general finding, albeit applied in the result only to an assessment of the equipment.

[25]In Marks and Spencer plc v Palmer

[2001] EWCA Civ 1528

, the court had to consider whether a floor in a workplace was "suitable for the purpose of which it is used", under Regulation 12(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. Having stated, at paragraph 15, that a word like "suitability" "seems on its face to involve a qualitative assessment", Waller LJ stated:

"25. I am not sure that language such as "real risk" or "slight risk" necessarily encapsulates the exercise that it seems to me must be performed. If the risk, however slight, is of a very serious injury or death in falling from a high-story building, then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that an employer should be entitled to have a seriously uneven floor if the risk is simply that someone may trip over — i.e., that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context; that is to say, the nature of the risk (i.e., here that the weather strip is by a door, that it is only 8 to 9.5 millimetres high, that it is next to some steps and that if the weather strip were tripped over a person may fall down the steps outside the door). But at the same time the assessment would hold that the weather strip was obvious, that it was in a place to be expected, and indeed this lady knew of it and there had been no complaints at all despite the number of exits that had taken place. 26. Then of course the assessment would take into account the nature of the persons who are exposed to any risk. This lady, for example, was 63. The evidence was that she did not always walk picking her feet up, as perhaps she should have done, and the presumption must be that there would be a number of employees in Marks and Spencer such as this lady. But again the assessment would be that persons such as this lady had managed to exit without any difficulty. Surely (it could be said) persons can manage a weather strip which is only 8 to 9 mm proud of the floor. 27. The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before. this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did."

[26]In Yorkshire Traction Co. Ltd v Searby

[2003] EWCA Civ 1856

, it was Regulation 5 of the Provision and Use of Work Equipment Regulations 1992, the predecessor or Regulation 4 of the 1998 Regulations, which fell to be considered. The issue was as to the suitability of buses not fitted with safety screens to protect drivers from assaults by passengers and members of the public. In a judgment, with which May LJ agreed, I found that there was no breach of the Regulation, stating, at paragraph 44: "... It does not follow that liability is established simply by showing that it is reasonably foreseeable that the absence of a screen may leave the way open to injury to the driver. A consideration of the degree of risk involved in the absence of a screen is also necessary in assessing suitability".

[27]In Griffiths v Vauxhall Motors Ltd

[2003] EWCA Civ 412

, cited by the judge, Clarke LJ stated, at paragraph 29:

"Regulation 4 and indeed 5 are concerned with the physical condition of the equipment on the assumption that they will be properly operated by properly trained and instructed personnel."

[28]The relevant factors under Regulation 4 appear to me to be:(a) Even for an experienced fireman, the situation in which the respondent had to work was very rare. He was required to use the 1040 ram.

(b) The 1040 ram had been selected for use by a more senior officer.

(c) The respondent was working under great pressure and conscientiously trying to save life. The work was extremely tiring, having already exhausted the more senior officer.

(d) The respondent was doing what was expected of him in such a grave emergency.

(e) The respondent's training and experience had been on a lighter ram, 12,5kgs as against 16.5kgs, than the 1040 ram he was using at the time of the accident.

(f) The respondent was acutely aware of the danger of trapping his hand.

(g) The accident happened because the respondent's hand slipped into the pinch point.

(h) During' training, the pinch point had routinely proved a hazard.

(i) Despite enquiries, there was no evidence of any previous accident having occurred in this way in operations.

(j) The injury, if a hand does move into the pinch point, while obviously unpleasant and more than trivial, is not likely to be of the most serious kind.

[29]In argument, Miss Awadalla, for the respondent, relied, and persists in relying in her post-hearing submissions, on the inability of the respondent to see the pinch point which was close to where his hand had to be positioned. The judge appeared to accept the relevance of this argument, stating, at paragraph 18: "It was conceded in evidence that it had not been a specific instruction to employees that they should only operate this equipment if they could actually see the top of the ram when they were operating it to ensure that they did not allow their hand to slip into what has been described as the danger zone".

[30]Miss Awadalla argues that, had the respondent been able to see more, he would have known that his hand was- slipping and could have prevented the injury. I find it difficult to relate ability to see the trapping point, which was close to where the housing had to be held, to a case based not on the wrong positioning of a hand but on a slip. A hand may slip whether or not it, and the trapping point, can be seen. What can be said is that when using much heavier equipment in stressful situations a slip of the hand is more likely.

[31]In his findings, the judge focused on the suitability or unsuitability of the ram, and on Regulation 4. He found it to be unsuitable, notwithstanding its safe use by operatives in practice over a period of many years. He found, and was entitled to find, the stressful circumstances to be a relevant consideration. Regulation 4 was in the forefront of his reasoning. However, in referring to the submissions, and in his discussion of the situation, the judge did have broader considerations in mind. For example, he referred, at paragraph 26, to an alleged failure to provide information and adequate training in the use of the 1040 ram. He also referred, at paragraph 28, to "reasonable practicability", a consideration which does not arise under Regulation 4 though "practicability" is a relevant consideration under Regulation 11(2). Regulation 11(1), a breach of which is pleaded, by its terms requires effective measures under Regulation 11(2).

[32]In the circumstances, including its good safety record, I am not prepared to hold that the 1040 ram 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. I would reverse the judge's finding on that issue.

[33]The question arises whether it is open to this court to uphold the judgment on other grounds: both negligence at common law and Regulation 11 of the 1998 Regulations were pleaded. Failure to provide adequate training in the use of the 1040 ram was pleaded and relied on in the Respondent's Notice. The training issue was canvassed at the hearing. The provision of training is required by Regulation 11(2) (d) but only when access to any dangerous part of machinery cannot effectively be prevented by other methods, such as guards. The appellants contend that they had done all that was reasonably practicable to ensure the safety of the respondent and to secure a safe work environment. (Judgment, paragraph 28). Post-hearing submissions were invited, and provided, in relation to Regulation 11. The judge stated, at paragraph 46, that it was for the employer to show that other possible measures were not reasonably practicable and he plainly found that they had not discharged the burden. The burden of proof was on them (Nimmo v Alexander Cowen and Sons Ltd

[1968] AC 107

[34]In my judgment, it is open to this court to take a broader view of the issues than, in the event, did the judge. Lack of training has always been part of the respondent's case. The court is not prevented by the erroneous assertion made at the trial on the respondent's behalf that the common law duty was no different from the statutory duty. Common law issues were considered at the hearing. The judge plainly had in mind, having considered the evidence, the very demanding and highly stressful conditions to which all fire fighters may be exposed (paragraph 35 of the judgment).

[35]In spite of somewhat elaborate arguments, the claim is in my view a straightforward one. The attempt to save the driver's life was a joint Chertsey/Esher venture involving the use of the Rapid Intervention Vehicle intended for major incidents. It was the leading fire fighter from Esher who, until he was prevented by exhaustion, decided on the use of the 1040 ram. Without any training or experience on that ram, the respondent took over the urgent attempt to save life. In doing so, he was injured.

[36]I find quite unacceptable the appellants' approach to their duties as employers in such circumstances. It was rightly rejected by the judge when he considered the "central issue" in the case. The appellants rely on the allegation that it was the respondent's decision to use the 1040 ram and that fire fighters "must put their own health and safety first, however unpalatable the consequences". The implication is that the respondent ought not to have taken over from the leading hand and should not have attempted to save the driver's life. The respondent had no opportunity to assess what equipment ought to be used; if the rescue attempt was to continue, it had to be with the 1040 ram. Not only is it unrealistic to conclude that the respondent should not have continued with the rescue attempt but the judge found that he did what was expected of him. On the evidence, the respondent acted reasonably.

[37]The respondent was placed in a situation which the judge found to be foreseeable. 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 was trained. Given proper training and experience, the 1040 ram was a suitable piece of equipment; a system of work which permitted a fire fighter not trained or experienced in its use to use it in the stressful and difficult situation which had arisen was not a safe system of work. The judge's reasoning, at paragraph 48 and elsewhere, can, to establish liability, readily be transposed into the context of training.

[38]The Station Commander's claim that it was not practicable to train the respondent on the equipment used on the Rapid Intervention Vehicle was not explained and cannot in my view be justified in a context of a joint operation on the M25.

[39]I reject both the submission that it was impracticable to train the respondent on this equipment and the submission that it was unnecessary. It is because equipment may have to be used in difficult and urgent situations, that training upon it and familiarity with it are particularly important. Having to use the ram when a part of it could not be seen was to some extent relevant as adding to the difficulty of the operation, though I am not prepared to hold that in itself it made a slip of the hand more likely.

[40]On the basis of the evidence before the judge and his reasoning on the facts, I am also prepared to hold that the respondent's unfamiliarity with the ram he was required to use was causative of the accident. Given sufficient training and experience in its use, he would probably have been able to manage it without his hand slipping as it did.

[41]I also find a breach of Regulation 11(2)(d). The pinch point did constitute a dangerous part of machinery within the meaning of Regulation 11. While fixed and other guards were not provided, or were claimed to be not practicable, instruction and training should, in the circumstances, have been given upon the use of the 1040 ram. I accept that the power ram was "machinery", within the meaning of Regulation 11, and it has not been argued otherwise. The 1040 ram was 4kgs, or about a third, heavier than the 1020 ram. In the stressful circumstances undoubtedly present at the material time, the absence of training and experience in handling the additional weight substantially increased the risk of the type of injury which occurred, a slip of the hand while manoeuvring the ram in a confined space.

[42]I would dismiss the appeal.

Lady Justice Arden:

[43]Power rams are used for moving the tangled parts of vehicles in road crashes and thus have to be capable of exerting considerable force. Mr Pennington, an experienced fireman, was injured when, while trying to move the dashboard of a lorry, his finger was caught in the moving part of a Hahnatro 1040 power ram. He was using the ram in an effort to straighten out a lorry cab that had buckled and caved in a road accident, trapping the driver, who was seriously injured. Mr Pennington took over the work of using the ram from another fireman and so this was a situation where it was clearly expected that he would use this ram. His injury occurred in the course of that use. He had to work from an unusual and particularly awkward angle. It was a situation of great stress, with the life of a road traffic victim at stake.

[44]The judge (HHJ Barratt QC sitting in the Chichester County Court) held that the equipment was unsuitable, and the appellants have challenged that conclusion. I agree with Pill LJ for the reasons he gives that this ram was not an unsuitable piece of equipment for the purposes of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 ("PUWER") and that the judge was thus in error.

[45]There is, however, no doubt that the retracting arms of a Halmatro Ram are dangerous machinery for the purposes of PUWER. Reg 11 of PUWER provides that there must be training for the purpose of preventing access to any dangerous part of machinery. The precise provisions of Reg 11 as then in force are important but I do not need to set them out as Pill LJ has already set them out in para. 11 of his judgment. The judge below did not refer to Reg 11 in his judgment. If Reg 11 is in play, there is an issue whether it was sufficient for the appellants to provide training on a smaller model of the ram rather than the Holmatro 1040 ram involved in this accident.

[46]Reliance is placed on the lack of training in the respondent's notice and the respondent requests the court to uphold the decision of the judge on the further ground that the training for the Holmatro 1040 ram was inadequate. But is it too late for the matter to be raised in this court? That depends on such questions as whether the issue was raised in the court below and whether that would result in unfairness the appellants who should have had an opportunity to call more evidence on this point.

[47]We are told that the issue of training was raised below. Moreover, the judge did not make any finding on the adequacy of the training for the Holmatro 1040 ram for the purposes of Reg 11 but he was critical of the lack of specific training on it. Furthermore, in the course of the hearing before him there was an adjournment and one of the purposes of this was so that the appellants could produce evidence about the training on Holmatro rams. It is therefore difficult to see why the appellants have not had an adequate opportunity to produce evidence on this issue. That evidence would naturally cover both the content of the training and also if there were any deficiencies in the training whether those deficiencies could have been a cause of the accident. I therefore conclude that the issue can be taken on this appeal.

[48]Under Reg 11, it is no answer to a failure to give training that training was impractical. In fact the appellants did not provide any training on the Holmatro 1040 ram so their case was necessarily that training on the Holmatro 1020 ram (which was provided) was adequate for the purposes of the Holmatro 1040 ram, which was a larger and heavier version. (The Holmatro 1020 and 1040 rams weigh some 12.5 kgs and 16.5 kgs respectively).

[49]The question is not whether training on the Holmatro 1040 ram was impracticable. The question is whether the provision of training on the smaller ram sufficed as the provision of training on the Holmatro 1040 ram. That would depend on whether there was any significant difference between the two rams which affected their use.

[50]The Holmatro 1040 ram was significantly heavier ram and it also had two retracting arms rather than one, like the Holmatro 1020 ram. This gave it a spread when fully extended of about 1,100mm, as opposed to about 680cm in the case of the Holmatro 1020 ram. As a matter of common sense, it thus might be expected to require different handling. The burden of proving that there was no difference in handling necessitating separate training therefore fell on the appellants,

[51]The training on the Holmatro 1020 ram included an instruction to keep hands and fingers out of the path of the moving parts. There is no suggestion that Mr Pennington consciously disobeyed that advice. Mr Pennington's case on the content of the training was that the training would also have included an instruction that a person operating a Holmatro 1040 ram should be careful not to put the ram in such a position that he would not be able to see where his hand or fingers were. He accordingly was not told not to put his hands and fingers where he could not see them. The obvious reason for this advice would be to prevent injury in case his hand should slip on to the moving part (which would present a danger even if temporarily immobile) without his realising it or he should accidentally should put his hand in the wrong place. It may be that Mr Pennington's contention about training applies to all Holmatro rams, but it would be more obviously a problem with the larger ram because it had two arms and because it would have been easier for the casing to obscure the view. The second issue is whether the failure to provide training on the Holmatro 1040 ram was causative of the injury to Mr Pennington's finger. There is no suggestion that, if the appellants had provided training, the respondent would not have followed it. There is clear evidence that his hand was out of sight. There is a possible issue as to whether it slipped to that position as the ram was being operated, or whether it had slipped there before Mr Pennington operated the ram, but logically it does not matter in what order those events occurred or if the finger was injured because it was accidentally put in the wrong place. Crucially it was out of sight when the accident occurred. If it had slipped, as the judge found, or indeed been moved to, what Mr Pennington could see was a moving part, Mr Pennington would no doubt have stopped the retraction of the arm of the Holmatro ram.

[52]The appellants' evidence from the manufacturers showed that the manufacturers had no evidence of similar accidents.

[53]The facts were as found by the judge. There was then a question of law for the judge as to whether the training was adequate in all the circumstances which the appellants could reasonably be expected to foresee.

[54]There is no doubt that the appellants must have expected firemen to be called upon to use this machinery in some fairly horrific road accidents since it would only have to be used in circumstances where bent metal or other material was preventing access to a seriously injured victim. The evidence was that the training was in the controlled environment of one or more training sessions at the fire station and in a relaxed atmosphere. As to the rest the fireman was expected to learn on the job. Where dangerous machinery of this kind is used in stressful situations in circumstances not covered by use demonstrated in training exercises, I would incline to the view that the training was inadequate if (as here) it consisted of nothing more specific than a general instruction that the operator of the machinery should always keep his hand out of the moving parts. That mundane if necessary advice means little in extreme situations unless it is concretised with and accompanied by some advice applicable to the actual situation with which an operator is faced. On its own, that instruction tells him nothing about how he should conduct himself when the ram is being used in situations where his hand or fingers of the operator are liable to slide or be out of sight. To deal with that danger there had inevitably to be some alternative or additional precaution to take, or, perhaps, some additional practical training in the simulated conditions of an accident. I read the first sentence of para. 48 of the judge's judgment as making a similar point.

[55]The appellants submit that the operator should cease to use the ram in stressful situations where his own safety was at risk. They must, however, have expected him to do his best in this situation and he was entitled to training to help him do so without risk to himself. On that basis it was not only Mr Pennington's own devotion to duty, without more, that was causative of his injury. The lack of training played a role too. It goes without saying that the cost or inconvenience to the appellants of providing appropriate training was minor in comparison with the risk of permanent disabling injury to their employees.

[56]For these reasons and for the reasons already given by Pill LJ, I would dismiss this appeal.

Lord Justice Neuberger:

[57]I have reached a different conclusion, namely that this appeal should be allowed. The facts, the law, and the evidence are fully and clearly explained in the judgment of Pill LJ, and I shall not repeat them.

[58]For the reasons he gives, and like Arden LJ, I agree with the conclusion reached in paragraph 32 , namely that the trial judge was wrong to conclude that the 1040 ram was an unsuitable piece of equipment for the relevant operation with the meaning of Regulation 4.

[59]Where I differ from Pill and Arden LJJ is in their conclusion that, in all the circumstances of this case, we can conclude that the judgment below should be upheld on a different ground, namely that the appellant failed to provide the respondent with adequate training in the use of the 1040 ram,

[60]In my opinion, it is not open to us in this court to conclude that the respondent's use of the 1040 ram on 1 February 2001, without any previous training on that particular type of ram, constituted an unsafe system of work due to lack of training. I am also unconvinced that we could conclude that any such lack of training was causative of the accident which resulted in the respondent's injury. Accordingly, it seems to that the respondent cannot succeed in this court in common law or under Regulation 11(2)(d).

[61]Although Regulation 11 was referred to in the particulars of claim, the respondent did not rely upon it, or upon common law liability in relation to training, in oral argument before the trial judge or before us: as the trial judge recorded, the focus of the respondent's case was on Regulation 4. The possibility of the claim being based on inadequate training (whether in common law or pursuant to Regulation 11) was not the subject of any argument, until it was raised by this court after the hearing of the appeal. Not surprisingly in these circumstances, as the respondent's counsel wrote in her post-hearing submissions, the "trial judge did not make a specific finding on the issue of the effectiveness of the training and instruction in relation to Regulation 11(2)(d)", or, I would add, for common law purposes. Indeed, as the appellant's counsel pointed out in her post-hearing submissions, the trial judge "made no criticism of the training provided at all".

[62]I accept, of course, that this does not of itself automatically mean that it is impossible for this court to come to the conclusion that the training afforded by the appellant to the respondent was insufficient to satisfy the appellant's duty in common law and/or under Regulation 11, and that this breach of duty was causative of the accident. However, it does mean that we have to be very careful indeed before we could properly make such findings. It is, in my view, a dangerous and potentially unfair course for this 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.

[63]Having been invited, after the hearing of the appeal, to make submissions on the issue of whether the appeal should be dismissed on the ground that the cause of the respondent's injury was attributable to training which was inadequate under common law and/or under Regulation 11, the respondent's case seems to have relied at least primarily (and as I read it, probably solely) on the contention that the respondent's "training was inadequate... because it did not include the specific instruction 'do not use the ram blind/when you cannot see the moving part'". I am by no means convinced that, even having been invited, after judgment, to make submissions on the adequacy of the training he received, the respondent contends that the training was inadequate on the basis that his training was only on the 1020 ram and not on the 1040 ram. However, it seems to be appropriate in all the circumstances to deal with both possible deficiencies in the respondent's training.

[64]There was no evidence before the trial judge that the respondent's training on the 1020 ram, while satisfactory for the purposes of his use of that ram, was unsatisfactory if he was to use the 1040 ram. It is true that, as pointed out by Arden LJ, the latter ram was about 30% heavier, had two arms rather than one and had a correspondingly greater spread. However, in my view, those differences cannot, of themselves and without more, justify the conclusion that training on the 1020 ram was insufficient training for the purpose of using the 1040 ram. But it goes further than that, because only evidence relating to the appropriateness of the training on the 1020 ram use of the 1040 ram was that of the station commander, Mr Riddle, which was that:

"it would not be practicable for use to train officers on the various types [of ram] but, in any event, the operating principles are the same,.."

[65]While I initially thought otherwise, it seems to me that Arden LJ may well be right to say that lack of practicability should not assist the appellant. However, I do have difficulty with the notion that we 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 1040 ram.

[66]So far as his cross-examination as to allegedly defective training was concerned, Mr Riddle was asked questions purely in relation to whether the respondent was trained to operate a ram "blind", and there was no question which related to the absence or desirability of training on any ram other than the 1020 ram.

[67]Quite apart from this, it seems to me that there was no evidence, and (not surprisingly in those circumstances) no findings by the trial judge, to support the proposition that the lack of any training on the 1040 ram, as opposed to the 1020 ram, was in any way causative of the accident in question. Certainly, the way in which the accident occurred, as described by the trial judge in the passage cited in paragraph 9 of Pill LJ's judgment, was by no means necessarily or obviously contributed to by the fact that the 1040 ram, rather than the 1020 ram, was the equipment being used by the respondent.

[68]I turn to the principle (or quite possibly the only) failure in training which the respondent has alleged in the written submissions lodged on his behalf following the oral argument, namely: "The appellant had failed to fully appreciate the problems and challenges of the situations in which the equipment might be used and the finding that there was no instruction to only operate equipment when the top of the ram could be seen".

[69]The first problem with this contention is to be found in the respondent's own evidence to the trial judge, which included the following:

"There is a pinch point on all Holmatro tools. We are taught obviously very strictly; don't put your fingers in here. ... It is common sense. But unfortunately, in this particular instance, I had no idea that my hand was sliding down the shaft of the tool.... [I]t is a generally accepted principle that you don't put your fingers inside the dangerous area."

[70]This is consistent with evidence given on behalf of the appellant in relation to the training it provides:

"[Whilst you are concentrating on the actual work in hand, its very easy to lose focus on your own personal safety and, therefore, we always constantly encourage you, keep your hands away from the moving parts. One of the things that is very difficult for the fire service, we cannot train people for individual situations. The main way we do our training is to give them the safety measures they have to take to apply in all situations you come across."

[71]As already mentioned, the trial judge made no finding (and was not asked to make any finding) whether the training afforded to the respondent by the appellant was defective in the manner alleged in the respondent's written submissions in the passage I have quoted. It seems to me that the evidence was insufficient to justify such a conclusion in any event. The point was not investigated because it had not been raised by the respondent in oral argument or in evidence (or even, in terms, in the particulars of claim). There was simply no evidence to support the proposition that the instruction to the respondent, that he should not place his hands near the moving parts of the ram (whether he could see it or not), was insufficient. If the point had been raised below on behalf of the respondent in closing, I have little doubt but that the appellant would have objected, and the trial judge would either have ruled it out, or would have permitted the appellant to recall witnesses to deal with the point.

[72]I do not consider that it can be said that the very fact of the present accident indicates that the training was insufficient. First, it is not suggested that this is a case of res ipsa loquitur. Secondly, there was some evidence that the accident in the present case was unusually severe. The respondent 1 said that he had not "seen a lorry crash of that severity since that time and probably not before either". Thirdly, enquiries of the supplier of the ram, Holmatro, indicated that they had had no previous record of any accidents similar to that which caused the respondent his injury in the present case. The existence of such enquiries, incidentally, do not, to my mind, assist the respondent on this appeal: their purpose was not in connection with any allegation of failure to train properly.

[73]In any event, I do not consider that it is open to us in this court to hold that, even if there had been a failure to train the respondent properly in the sense he primarily (or solely) now alleges, that failure would have been causative of the accident which occurred. In that connection, by no means surprisingly, the respondent's various accounts in his evidence as to how the accident occurred were not entirely consistent. At one point, his evidence suggested that he initially placed his hand where he could see it, but it then slipped to a point that he could not see it, whereupon the accident occurred; at another point, he suggested that he put his hand where he could not see it and the accident then occurred. In the absence of any express finding by the trial judge as to which of these two slightly different versions is correct, it does not seem to me that it could be open to us to conclude that it was the latter version (and it is only if it is the latter version is correct that it could be right to conclude that, if the respondent is right in his contention that his training was defective in the way he alleges, it could have been causative of the injury he suffered),

[74]Further, in at least one passage in his evidence, the respondent explained that, at the time of the accident, he was tired and not concentrating as hard as he should have been. The fact that this was attributable to his devotion to duty and his desire to save the driver of the lorry entirely to his credit, but I am afraid that, at least in my opinion, this evidence adds to the already insuperable difficulties he faces in establishing his case on causation, even if, contrary to my view, he could make his case on breach of duty.

[75]I note Pill LJ's distaste for the appellant's attitude as described in paragraph 36 of his judgment. However, it appears to me that it does not impinge on the reasons which convince me that we cannot dismiss this appeal on the basis of inadequate training. In any event, given that we are rejecting the trial judge's view that the 1040 ram was an unsuitable piece of equipment, I am not clear what the appellant could have done to prevent the risk of the type of accident which occurred in this case-, save to give firemen appropriate training with the equipment and to warn them, in firm and unambiguous terms, never to let their hands get near the moving parts of the machinery. As the respondent himself said, that was something he was told in his training "very strictly", and it "was common sense" which accorded with "generally accepted principle".

[76]In all these circumstances, I would, for my part, allow this appeal. I reach my conclusion with regret, not only because I am disagreeing with Pill and Arden LJJ, but also because nobody could have anything but considerable sympathy, indeed admiration, for the respondent. As I have mentioned, he was working very hard, almost certainly well beyond the call of duty, in trying to rescue someone in mortal danger, as a result of which he suffered a significant injury. However, for the reasons I have given, it does not appear to me that we can properly hold the appellant responsible for that injury.