Brazier v Dolphin Fairway Ltd. [2005] EWCA Civ 84

Case No B3/04/1766/A/B[2005] EWCA Civ 84
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE STEWART QC)
Venue Royal Courts of JusticeDate Wednesday, 26 January 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE JACOB
Between
JOHN T BRAZIERApplicant-v-
Between
DOLPHIN FAIRWAY LIMITEDRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Applicant appeared in person. for in person for The Respondent did not appear and was not represented.
J U D G M E N T

LORD JUSTICE JACOB:

This

[1]is an application by Mr Brazier in person for permission to appeal from a judgment of His Honour Judge Stewart QC given on 24 June 2004. The judge dismissed Mr Brazier's claim for negligence against his former employer, Fairway Dolphin, for damages for a hernia injury.[2]The judge held that there was insufficient evidence of negligence. He accepted Mr Brazier's evidence that at the time of the alleged injury he was trying to lift down a wooden 6-feet by 6-feet pallet from a stack of pallets which was about 6-feet high. That was the system of work at Mr Brazier's place of employment and was known to his employers. There was a witness statement on behalf of the employers so indicating and also claiming words to the effect that the pallets were "fairly lightweight". Nonetheless, The judge's reasoning was essentially based on the fact that there was no evidence as to the weight of the pallet that was lifted down. He said:
"I have no means of knowing how heavy it was or whether it was heavy enough to give rise to a foreseeable risk of injury."
He then went on to say that there was evidence that the pallet was roughly by 6 feet by 6 feet:
"... but I am completely at sea as to the forces and the strains which the claimant had to undergo. I have no expert engineering evidence which tells me anything about the forces of the strains."
[3]The judge took the view that there was no evidence that the system of work that was being employed was unsafe. He seemed to think that he needed such evidence. I think it is arguable that he made an error of principle. There comes a point when one does not need detailed evidence or expert evidence. The judge had evidence of a man being required to lift down a 6-feet by 6-feet wooden pallet; a pallet which when in use had to be strong enough to take considerable weight and be used with a fork lift truck. It seems to me to be arguable that no further evidence was needed to decide that a system which required someone to bring down such an object from a height of 6-feet would place that person at risk of injury. I therefore think that this is a case in which there is a real prospect of success on appeal.[4]Mr Brazier had a number of other applications. He was not happy about the way his solicitors had conducted the case and, in particular, that they had failed to obtain any detailed evidence as to the weights of the pallets concerned and all the other matters to which the judge referred.[5]Those applications I refuse. They all relate to the manner in which the case was conducted on behalf of Mr Brazier. If there were any substance in them, it is not a matter which can be laid at the defendant's door, but at his own solicitors' door. He has sensibly told me that he does not intend to pursue the solicitors, at least as matters stand at present. I can well understand that.[6]For the present, I simply give him permission to appeal the decision below.

Order

Application for permission to appeal granted. Copy of judgment to be supplied to the applicant at public expense. Applicant to send a copy of judgment to the respondent together with the Notice of Appeal. To be heard before a two judge court and listed for 2 hours.

Cited in 7 later judgments