Robert Geoffrey Richardson v William Beech Skip Hire Limited [2026] EWHC 1341 (KB)

[2026] EWHC 1341 (KB)

Case No KB-2025-BHM-000050

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Venue Birmingham Civil and Family Justice

The Priory Courts

33 Bull Street

Venue Birmingham B4 6DS

Date 11 June 2026

Before

Her Honour Judge Emma Kelly

(Sitting as Judge of the High Court)

Between

Mr Robert Geoffrey RichardsonClaimant

William Beech Skip Hire LimitedDefendant

Henry Pitchers KC (instructed by Lime Solicitors) for Claimant

Gabriel Farmer (instructed by Reynolds Porter Chamberlain LLP) for Defendant

Hearing Hearing date: 7 May 2026

APPROVED JUDGMENT

HHJ Emma Kelly:

[1]This judgment concerns the issue of contributory negligence in the context of a personal injury claim arising from a workplace accident.

Background

[2]The Claimant (DOB 15.03.63) is a director of G Richardson Agri Limited, a business that sells, services and repairs plant equipment.

[3]The Defendant is a company involved in the supply of skips for hire. Mr Tom Gardiner is a director of the Defendant.

[4]On or around 9 November 2024, Mr Gardiner telephoned the Claimant and asked him to visit the Defendant’s premises to measure the blades on a demolition grab (“the Grab”) fitted to a Caterpillar Waste Handler (“the Caterpillar”). The intention was that G Richardson Agri Limited would thereafter source replacement blades.

[5]The Claimant attended the Defendant’s premises at around 12.30pm on 9 November to obtain the details of the Grab. An employee of the Defendant, Mr Bella Kovacs (“Bella”), was operating the Caterpillar. I will return to the precise details of the accident circumstances in due course. For present purposes, it suffices to say that whilst the Claimant was trying to obtain the details he needed, the Grab made a sudden movement and struck the Claimant’s legs, crushing him against the machine. It is accepted by all that the sudden movement of the Grab was caused by Bella inadvertently knocking the joystick control.

[6]The Claimant was taken to hospital by ambulance. He subsequently underwent bilateral through-knee amputations, and also suffered an injury to his little finger and psychological injury.

[7]On 4 March 2025, the Claimant issued his claim, seeking damages for personal injury.

[8]By defence, dated 4 April 2025, the Defendant admits primary liability, accepting it is vicariously liable for the negligence of Bella in inadvertently causing the Grab to move, but alleges contributory negligence.

[9]By order dated 18 July 2025, DJ Dickinson entered judgment in favour of the Claimant with damages to be assessed. She directed that the matter be listed for a trial on the issue of contributory negligence.

[10]The allegations of contributory negligence are found in the Amended Defence, dated 12 February 2026:(a) “The Claimant…placed himself between the [Grab] and the front of the machine whilst the engine was still running and the operator still in the cab. He knew or ought to have known that doing so exposed him to a risk of serious injury if, for whatever reason, the [Grab] retracted.

(b) The Claimant failed to satisfy himself, either by requiring the machine to be switched off or by checking that it was deactivated (by use of a safety switch, dead man’s handle or other device), that it was safe to enter the danger area between the [Grab] and the body of the machine before doing so.

(d) The Claimant exposed himself to a foreseeable risk of injury.

(e) Failing to heed or otherwise comply with the Claimant’s own risk assessment dated 16.10.24 (only three weeks before the accident occurred) entitled “RA 003 Machinery Maintenance” and which provided, inter alia:

“Hazard (something with potential to do harm): - running machinery Control (measure to reduce hazard): - Do make sure that the equipment is turned off - Isolate machinery before any maintenance cleaning or adjustment.”

Control (measure to reduce hazard):

Evidence

[11]The accident circumstances are largely agreed and are captured on clear, colour CCTV video footage. The footage does not have sound. Both parties rely on and refer to the footage.

[12]The Defendant presented its case first, bearing the burden of proving its allegations of contributory negligence. The Defendant’s evidence

[13]The Defendant relies on the evidence of Mr Gardiner. By his witness statement, dated 10 October 2025, Mr Gardiner stated that he had worked for the Claimant on a self-employed basis up to the age of 20, assisting with repairs of tractors and farm machinery. In 2007, Mr Gardiner set up the Defendant, and the Claimant assisted him financially in doing so.

[14]Given their longstanding relationship, the Defendant engaged the Claimant’s company to supply and undertake repairs of various machinery, plant and trucks. Mr Gardiner described the Claimant as an extremely experienced and competent engineer.

[15]Mr Gardiner explained that he asked the Claimant to come to the Defendant’s site as Bella had reported that some new parts were required for the Caterpillar. He recalled the Claimant arriving at approximately 12:30pm on 9 November 2024. As Mr Gardiner was busy at the time, he asked Bella if he could take the Claimant to the machine and show him the parts.

[16]After about 10 minutes, Mr Gardiner saw that the Claimant and Bella were still by the machine so went over to join them once he had finished a telephone call. Mr Gardiner stated that the Claimant and Bella informed him they were struggling to identify exactly which parts were required. He explained he had a look around the Grab, noticed a label with a serial number on it and suggested this might assist. Mr Gardiner stated that Bella needed to lower the Grab to enable them to look at the label, and therefore Bella got into the cab to do this.

[17]Mr Gardiner recalled that he and the Claimant then walked out of the way of the machine, and started to discuss some roofing works being undertaken on a nearby building. Mr Gardiner explained that, as Bella began moving the Grab down, the Claimant approached the moving machine and put himself between the moving Grab and the body of the machine. He explained that the Claimant started to clean the label as it was covered in mud and grease. Mr Gardiner stated he was about to step back and ask Bella for some rag to clean the label when, all of a sudden, the Grab moved and trapped the Claimant’s legs against the body of the machine.

[18]Mr Gardiner stated that he reported the accident to the Health and Safety Executive, who investigated and identified contraventions of sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 and regulations 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations 1998. The HSE acknowledged that, since the accident, the Defendant had implemented various safety measures. No further enforcement action was taken.

[19]In cross examination, Mr Gardiner agreed that he was trained and certified to use the Caterpillar, and that he had trained Bella on the machine about three months before the accident. He described Bella as an experienced and competent employee who had worked for him for about 10 years by the time of the accident. Mr Gardiner viewed the Claimant as an experienced engineer but accepted that he and Bella had more knowledge of the Caterpillar than the Claimant.

[20]Mr Gardiner accepted that he had wanted the Claimant to take the serial number from the Grab and that he had pointed the number out to the Claimant. He agreed that once the serial number was cleaned up, it should have been a quick job to get the number.

[21]He agreed that he was close to the Claimant just before the accident occurred, that he had followed behind the Claimant and was himself in close proximity to the Grab but had not thought the Claimant was in danger. He accepted that if he had thought the Claimant was in danger, he would have asked him to move.

[22]Mr Gardiner agreed that Bella had control of the ignition on the Caterpillar. He explained that there was an isolation switch in the cab, which stops the joystick moving even if the engine is running, but that Bella had not put the isolation switch on. He agreed that he had not asked the Claimant to undertake a site induction but, even if he had, it would not have made any difference to how the Caterpillar was operated that day. The Claimant’s evidence

[23]The Claimant relies on his witness statement, dated 20 November 2025. He explained that he has been running his business, G Richardson Agri Limited, for around 25 years, which focuses on the sale, servicing and repairing of agricultural equipment.

[24]The Claimant stated that he has known Mr Gardiner for many years and remains good friends with him. Mr Gardiner initially worked for the Claimant for around five years from the age of 15. The Claimant explained that he lent Mr Gardiner £10,000 to assist Mr Gardiner with the purchase of a skip hire business. Over the years, the Claimant’s company supplied the Defendant with various parts for machinery, requiring the Claimant to go to the Defendant’s yard on average once a month.

[25]The Claimant explained that Mr Gardiner asked him to call round to the Defendant’s site to look at the blades on one of his machines. He needed to go and measure up to ensure he ordered the correct part. The Claimant described the Caterpillar as a plant machine and not something he would normally work on being an agricultural engineer, but that the blades he was asked to measure and supply are compatible between plant and agricultural machines.

[26]The Claimant described arriving at the Defendant’s site at about 12.30pm. He believed that the timing on the CCTV footage runs approximately 8 minutes late by reference to timing on a number of photographs he took whilst measuring. The Claimant described the events immediately preceding the accident by reference to the CCTV footage. Key aspects of his evidence are as follows:(a) He walked across the yard to the Caterpillar, following Bella. As they reached the Caterpillar, the Claimant had a look at the blade that he was to measure.

(b) Bella climbed into the cab and turned the machine on. Bella lifted the Grab up higher so the Claimant could measure the blades. The Claimant believes Bella then switched the machine off.

(d) The Claimant then took a few steps backwards as Bella climbed back into the cab and repositioned the Grab. The Claimant then walked towards the Grab and took photographs of it.

(e) Bella climbed out of the cab and joined the Claimant again. Mr Gardiner walked towards them from across the yard. Claimant recalled him saying that the Claimant needed to take the serial number of the Grab. The Claimant did not think that was necessary as he had already taken the measurements but Mr Gardiner insisted he did. The Claimant stated he acted on Mr Gardiner’s instruction to please his customer.

(f) Mr Gardiner walked up to the Grab and pointed with his right hand to the top of the Grab. The Claimant believed this was because that was where the serial number was. The Claimant’s last recollection is following Mr Gardiner towards the location of the serial number.

[27]The Claimant explained he did not feel he was at any risk of being crushed. He noted that Mr Gardiner was standing next to him and had walked in front so could not have a considered there was any risk either.

[28]The Claimant noted that the CCTV footage shows the Grab moving downwards very slightly and very slowly, he presumed to allow him to take the serial number, and of him rubbing the site Mr Gardiner had pointed to, but now has no recollection of this. He also noted that the CCTV shows a light on the cab flashing but believed he would not have been able to see that from where he was standing.

[29]In cross examination, the Claimant confirmed that he had known Mr Gardiner for a long time, which started with Mr Gardiner working for him, and that they had always had a good relationship. The Claimant gave some details as to his business, which involved the sale and repairs of farm machinery. He stated he was 63 and had been around a bit and seen and done most things.

[30]The Claimant described a 360 excavator as not being an uncommon machine but which was something he didn’t normally work on. He accepted that movement of the arms on such a machine was not a mystery to him. His experience was that movement of the machine arms was not ‘clunky’ as most operators were experienced and the machines have proportional hydraulics to ensure smooth and gradual movements. He agreed that one needed to respect all machinery and exercise common sense when around them.

[31]The Claimant was taken to a written risk assessment, dated 16 October 2024, which had been produced for the Claimant’s business. He explained that his business had a health and safety guy who did all of that sort of work. He agreed that the risk assessment identified ‘running machinery’ as a hazard, and identified controls including a requirement to turn off the machinery before working on it. He also agreed ‘unisolated equipment’ was an identified hazard. The Claimant accepted the risk assessment applied to work undertaken in his own yard and when they were out on farms. Later in his evidence, the Claimant did not accept that the Caterpillar should have been switched off in line with the risk assessment as he did not consider this to be a maintenance job.

[32]The Claimant agreed that he had described his training in his statement as being based on ‘grandfather’s rights’. He said training still occurred in his business and gave a example of someone coming in to provide training on a new welder. He said that when his lad were getting training at work, he would ‘bob in’ too because there was no use him implementing new things if he didn’t know how to use them himself.

[33]The Claimant was taken through various still images from the CCTV footage. He agreed that at time 12.34.02 he could be seen standing behind the Grab and that the light on top of the cab meant the machine was on. He could not recall whether he would have been able to see the light from where he was standing. He described the process of taking measurements and the need to consider both imperial and metric measurements, to check bolt spacing and for him to see the Grab in the shut position to check for wear. He agreed that he would want to harvest every bit of information on the visit to avoid having to go back. He stated he wasn’t bothered about getting the serial number but if it was available, he would take it.

[34]The Claimant agreed that the still timed at 12.41.00 showed him and Mr Gardiner waiting for the Grab to be lowered and recalled that they were chatting about roofing work on a nearby building. He accepted that he can be seen touching the Grab at 12.41.19. He agreed that the Grab is shown to move closer to the ground between 12.41.29 and 12.41.32, and he must have known the Caterpillar was on if the Grab was moving. He took the view that it would appear from the image at 12.41.29 that the Grab was stopping as it was swinging a bit.

[35]The Claimant explained that he was expecting Bella to bring the Grab down and isolate it. He accepted that Bella had stopped the Grab only after he had moved in between the Grab and the machine. He did not accept it was unsafe to move into the gap between the Grab and machine as they all expected the Grab to stop. He noted that no one told him to get out of the space, or said anything else of note, and that Bella could see him from the cab. It was put to him that he should have stayed away from the machine until it was switched off but he explained that the gap he moved into was bigger than it looks on the images. He stated it was not the case that he squeezed into the gap but rather that all three of them were happy with the situation.

[36]In re-examination, he confirmed that he did not regard the task of measuring the Grab as ‘machine maintenance’ for the purpose of his company’s risk assessment.

Legal Framework

[37]Section 1(1) of The Law Reform (Contributory Negligence) Act 1945 (“the 1945 Act”) states:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage…”

[38]By s.4 of the 1945 Act:

“… “fault” means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”

[39]A useful summary of the structure to be adopted when considering contributory negligence is given by Stanley Burnton J in Badger v Ministry of Defence

[2005] EWHC 2941

(“Badger”) at [6]:

“(a) Was there fault on the part of the claimant? (b) If so, did the damage or injury that he suffered result partly from that fault? (c) If so, what was the extent of his responsibility for that damage or injury? (d) Having regard to the answer to (c), what is the reduction in the damages recoverable that is just and equitable?”

[40]The burden on proof rests on the Defendant alleging contributory negligence: Owens v Brimmell

[1977] QB 859

at 864.

[41]The notion of fault for the purposes of contributory negligence is one which is determined objectively. It was described by Lord Denning MR in Froom v Butcher

[1976] QB 286

(“Froom”) at 291G in the following way:

“Negligence depends on breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself…”

[42]Lord Denning MR continued at 294G:

“In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or others like him, it requires everyone to exercise all such precautions as a man of ordinary prudence would observe…”

[43]In order to sound in contributory negligence, damage must have been foreseeable. In Jones v Livox Quarries Ltd

[1952] 1 QB 608

(“Jones v Livox”), at 615, Denning LJ held:

“Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless.”

[44]It is clear from Jones v Livox that a person cannot shut their eyes and simply rely on others to take good care. The question of foreseeability will however be assessed in the context of an expectation that legal workplace responsibilities will be met. In Grant v San Shipping Co Ltd

[1948] AC 549

a dock labourer fell through an uncovered, unfenced and unlit hatch. Lord Du Parcq rejected a submission of contributory negligence holding at 567:

“..If the standard of the conduct of “an ordinary prudent man” is preferred, I do not think that his own conduct fell below it. Almost every workman constantly, and justifiably, takes risks in the sense that he relies on others to do their duty, and trusts that they have done it. I am far from saying that everyone is entitled to assume, in all circumstances, that other persons will be careful. On the contrary, a prudent man will guard against the possible negligence of others when experience shows that such negligence to be common. Where, however, the negligence is a breach of regulations, made to secure the safety of workmen, which may be presumed to be strictly enforced in the ordinary course of a ship’s discipline, I am not prepared to say that a workman is careless if he assumes that there has been compliance with the law…The courts have long recognised that in some circumstances an omission to make sure for oneself that others have done what they ought to have done is not negligent.”

[45]Mere inadvertence or momentary error on the part of a workman may not be sufficient to amount to fault for the purpose of contributory negligence. In Caswell v Powell Duffryn Associated Collieries Ltd

[1940] AC 152

no finding of contributory negligence was made against an employee mine worker killed whilst cleaning a roller on a conveyor belt. Lord Atkin at 166 concluded:

“…the care to be expected of the plaintiff in the circumstances will vary with the circumstances; and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain and manifold risks of a factory or mine. I agree with the statement of Lawrence J. in Flower v Ebbw Vale Steel, Iron and Coal Co., Ltd…“I think of course that in considering whether an ordinary prudent workman would have taken more care than the injured man, the tribunal of fact has to take into account all of the circumstances of work in a factory, and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence…”

[46]Lord Wright at 176 expressed it in the following way:

“The degree of want and care which constitutes negligence must vary with the circumstances…It is not a matter of uniform standard. It may vary from place to place, from time to time….It must be a question of degree. The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins…”

[47]In Johns v Martin Simms (Cheltenham) Ltd

[1983] ICR 305

contributory negligence was rejected when a claimant construction plant driver allowed his hand to be in proximity to the unfenced blade of a rotating engine fan. Lawson J concluded at 309C:

“…this is the sort of accident which can happen by inadvertence and that is one of the reasons why the regulations made under this statute are made, because workmen who are concentrating on doing a job may inadvertently get their hands in a position of danger by reason of a dangerous part of the machine, and that is why the law requires the dangerous part to be fenced…”

[48]The question of what amounts to mere inadvertence and what crosses the line into contributory negligence fault requires a fact specific determination. For example, in Ball v Richard Thomas & Baldwins Ltd

[1968] 1 WLR 192

(“Ball”) a 25% finding of contributory negligence was upheld against a burner operator who stood less than nine feet away from a moving crane. Davies LJ at 199E-H held:

“In my view it is quite impossible to dissent from the judge's finding that this accident was partly caused by the plaintiff's negligence in standing too near. He was a very experienced man who had been doing this job for years and years and he must have known that the only safe thing to do was to stand so far away that, whatever happened (unless, of course, the chain itself broke and flew off in pieces) he would be out of range. This he plainly did not do otherwise he would not have been hit. Mr. Davies's submission to us was that the act of the plaintiff in standing where he did was a mere act of inadvertence done in the furtherance of his job and in his employers' interest. He referred us, of course, to the well-known authority of Caswell v. Powell Duffryn Associated Collieries Ltd. and he asked this court to say that in these circumstances, even though the accident could not have happened without the action that the plaintiff took it should not be ascribed to him as being an act of negligence. I cannot accept this submission. It is plain that the plaintiff knew that there was a risk. It is plain that he knew that it was dangerous to stand within range, and it is also plain on the evidence that the accident was easily avoidable. There was plenty of room where he was working for him to retreat to a completely safe distance. In those circumstances I am quite sure that the judge was right in coming to the conclusion that the plaintiff was guilty of negligence.”

[49]If contributory negligence fault arises, it is necessary to consider apportionment. The general approach to apportionment was considered by Stanley Burnton J in Badger at [16]:

“…once contributory negligence has been established, the court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury-like and common sense way…”

[50]The authors of Clerk and Lindsell at [26-160] describes the balancing exercise in the following terms:

“The court has to weigh both the causative potency of the conduct of the defendant and claimant as well as their respective blameworthiness.”

It has been described as a rough and ready exercise in which different judges may legitimately take different views as to what is just and equitable in particular circumstances: Jackson v Murray

[2015] UKSC 5

(“Jackson”) at [28].

[51]In determining apportionment, one must guard against using comparables as decisions on this issue are fact-specific. Lord Steyn in Jolley v Sutton LBC

[2000] 1 WLR 1082

(“Jolley”) at 1089 expressed this in the following way:

“…in this corner of the law the results of decided cases are inevitably very fact-sensitive. Both counsel nevertheless at times invited your Lordships to compare the facts of the present case with the facts of other decided cases. This is a sterile exercise. Precedent is a valuable stabilising influence in our legal system. But, comparing the facts of and outcomes of cases in this branch of the law is a misuse of the only proper use of precedent, viz to identify the relevant rule to apply to the facts as found.”

The parties’ submissions 52. The Defendant’s case

The parties’ submissions

[52]The Defendant’s primary case is that the court should find the Claimant contributed to the accident to the tune of 40%, alternatively any finding of contributory negligence should be no lower than one-third.

[53]Mr Farmer submits that various features of the factual matrix need to be taken into account including:(a) The Claimant and Mr Gardiner were both highly experienced in relation to plant equipment.

(b) Both men should have realised the danger of allowing bodily presence close to an active machine given such a danger was obvious and was highlighted in the Claimant’s own risk assessment.

(c) The CCTV footage demonstrates that the Claimant chose to stand close to the Grab including at: 12.34.02 The Claimant spontaneously approaches and touches the Grab with the engine running. 12.40.47 Bella re-enters the cab and starts the machine. 12.41.19 The Claimant approaches and touches the Grab then moves away. 12.41.23 The Grab commences its descent. 12.41.29 The Claimant approaches and stands between the Grab and the machine as the Grab is still descending. 12.41.32 Mr Gardiner moves to stand next to the Claimant but to the side of the Grab. 12.41.37 The Claimant attempts to clean the Grab. 12.41.43 As the Claimant turns to lean on the machine, the Grab suddenly retracts crushing the Claimant.

(d) Beyond Mr Gardiner pointing out the serial number, the CCTC footage does not suggest that the Claimant was being directed by Mr Gardiner.

(e) The Claimant’s recollection in his witness statement that he did not know the machine was running and that he followed Mr Gardiner towards the Grab are contradicted by the CCTV, which shows that it was the Claimant who led the way.

[54]Mr Farmer submits that this is a clear case of contributory negligence on the Claimant’s part in stepping into an obviously dangerous gap between the running machine and the Grab, a move made all the more dangerous as the Grab was still moving. Whilst the Defendant accepts that the Grab then momentarily stopped before suddenly retracting, it is submitted the risk of injury was clearly foreseeable. Mr Farmer points to the Claimant’s own risk assessment which highlighted the need to isolate and switch off machinery before working on it.

[55]Mr Farmer accepts that Bella’s careless knocking of the joystick or otherwise failing to turn the machine off or apply the isolation switch was blameworthy and causatively potent. He urges the court to conclude that a proper analysis leads to the conclusion that three things caused the damage in this case.(a) Firstly, the inadvertent movement of the joystick. The Defendant accepts it is responsible for that.

(b) Secondly, the placement by the Claimant of his body in the gap between the machine and Grab. The Defendant submits the Claimant is responsible for that movement, as is shown by the CCTV.

(c) Thirdly, the failure to isolate the machine. The Defendant submits the failure to isolate the machine by ensuring the joystick could not be operated, or by switching off the machine, was the joint responsibility of the Claimant and Defendant, taking into account the Claimant’s company’s risk assessment.

[56]The Defendant accepts that a 50/50 apportionment would not be just taking into account the Defendant’s control of the Caterpillar. However, Mr Farmer submits the position is very different from the Froom type case where the passenger has no control over how a car is driven. He submits that the Claimant retained control over the situation and could have told Bella and Mr Gardiner to turn off the machine or chosen not to place himself in a position of danger. He describes the actions of the Claimant as foolhardy in the extreme. The Claimant’s case

[57]The Claimant’s primary case is that there should be no finding of contributory negligence. In the alternative, any finding should be no more than 10-15%.

[58]Mr Pitchers KC relies on the following features of the factual matrix. Both Mr Gardiner and Bella had extensive experience in using the Caterpillar, indeed Mr Gardiner had trained others. Whilst the Claimant was a very experienced mechanic, his particular expertise lay in agricultural plant, which this was not.

[59]Mr Pitchers KC urged the Court not to apply the benefit of hindsight when determining foreseeability. He submits it is relevant that none of those present considered it foreseeable that the Claimant’s bodily position at the material time created a risk of injury. He notes that no one asked the Claimant to move or asked Bella to turn off the Caterpillar. Bella himself must have been aware of where the Claimant was standing and could have turned the ignition off if he considered that the Claimant was in danger.

[60]Mr Pitchers KC asks the Court to take account of the fact that the Grab had stopped moving immediately prior to the injury occurring and, before that, it was moving very slowly and under control. He submits that what happened next was totally unexpected, approaching that which could be called a freak accident.

[61]The Claimant seeks to draw a distinction between the Claimant’s company’s risk assessment, which was applicable to machinery maintenance, and the task the Claimant was undertaking in taking a closer look at a serial number on the instructions of Mr Gardiner. Mr Pitchers KC submits any fault on the Claimant’s part is better seen as mere inadvertence rather than being at a level which warrants deduction.

[62]On the Claimant’s alternative case, it is submited that an assessment of the causative potency and relative culpability of each party falls heavily against the Defendant. He submits that Bella was wholly in charge of dangerous equipment and was at fault in not isolating the Grab whilst the machine was running. He further argues that the fact that none of the three experienced men thought that the Claimant was at risk is central to the assessment of causative potency. He acknowledges that contributory negligence deductions of 5% are usually inappropriate, that 10% is possible but rare and that 15% is likely more appropriate, if the Court rejects the Claimant’s primary position that no contributory negligence arises. Discussion 64. The factual matrix

[63]The Court has the benefit of unusually clear evidence as to events leading up to this dreadful incident. The CCTV footage is clear, in colour and focusses directly on the accident locus. The CCTV camera is positioned to the side of and slightly in front of the Caterpillar so that there is a clear side profile view of the length and front of the machine and Grab. The clarity of events is further aided by the lack of any real dispute between the Claimant and Mr Gardiner, in part no doubt because of their longstanding and enduring friendship, but in part because each of them has had the opportunity of watching the CCTV footage. For entirely understandable reasons, the Claimant has not watched the final material part of the footage that shows him being injured.

Discussion

[64]I make the findings of fact below as to the sequence of events. The findings are made on the balance of probabilities, this being a civil case, although the quality of the evidence in fact would support proof to a higher standard. I adopt the timings from the CCTV footage although I note and accept the Claimant’s evidence that it is probable, by reference to the timings on the photographs on his iPhone, that the clock on the CCTV was probably running 7-8 minutes late. That is not material, it is the sequence of events that is important.

[65]The first part of the CCTV footage shows the Claimant and Bella walking across the yard, arriving at the Caterpillar at around 12.32.58. Bella climbs into the cab and switches on the machine, which illuminates a flashing orange light on top of the cab. The Claimant is standing on the far side of the Grab (when viewed from the CCTV camera). Bella raises the Grab. At 12.33.58 the Claimant takes a step forward and starts to take measurements of the Grab whilst the light on the cab is still flashing. Bella then switches off the machine and exits the cab to assist the Claimant with measuring. At around 12.37.31 Bella climbs back into the cab and restarts the machine, illuminating the orange light. The Claimant initially remains very close to the Grab but then steps away from and moves to the front of the machine. Bella proceeds to close the Grab, switch off the machine and again exit the cab.

[66]At around 12.40.16 Mr Gardiner walks over and joins the Claimant and Bella at the front of the Grab. The material events then unfold over the next 90 seconds as follows: 12.40.40 Mr Gardiner walks around the side of the Grab points at the serial number on the side of the Grab closest to the machine. The Grab is still elevated and thus the serial number is above head height. 12.40.46 Bella climbs back into the cab. The Claimant and Mr Gardiner start to walk away from the machine. They walk about 6 feet away from the Caterpillar and stop, facing away from the machine and towards the CCTV camera, to discuss roofing works on a nearby building. 12.40.54 The cab’s orange flashing light illuminates, signifying that Bella had started the machine. 12.41.08 The Claimant turns to face towards the Caterpillar. Mr Gardiner does the same. 12.41.18 The Claimant steps towards the stationary Grab and removes an item of dirt/debris from it at around 12.41.20 and then steps away again. 12.41.23 The Grab commences its slow descent. 12.41.25 The Claimant starts to walk towards the Grab as it is still moving. 12.41.28 The Claimant reaches out towards the top of the descending Grab closest to the machine and starts to rub at the Grab. He is positioned between the descending Grab and the body of the machine. Mr Gardiner follows the Claimant towards the Grab. 12.41.31 The Grab stops moving. 12.41.32 Mr Gardiner stands next to the Claimant but to the near side of the Grab. The Claimant continues to rub at the Grab. 12.41.41 The Claimant stops attempting to clean the Grab. 12.41.43 The Claimant runs to face the machine when the Grab suddenly retracts crushing the Claimant’s legs against the machine.

[67]Other relevant factual matters include that Mr Gardiner and Bella were very experienced with the operation of the Caterpillar and Grab. The Claimant himself was a very experienced engineer, used to working with heavy machinery, albeit the focus of his business was on agricultural plant. He was visiting the Defendant’s yard in his capacity as an independent contractor rather than as an employee of the Defendant. Application of the legal principles Fault

[68]The question of fault for the purposes of contributory negligence needs to be assessed against the factual circumstances. The Claimant was working with a very large piece of heavy machinery that was capable of movement through both the Grab attachment and the body of the machine itself. Such heavy machinery poses an obvious risk to individuals. The Claimant was attending the Defendant’s site as an independent contractor and was a highly experienced engineer. Whilst he typically worked with farm plant, he was also familiar with other types of plant. He may not have brought particular expertise to the operation of the Caterpillar, particularly when compared to Mr Gardiner’s and Bella’s knowledge, but the dangers of such machinery should have been readily apparent. Indeed, even without mechanical expertise, a reasonably prudent individual would be wary about getting too close to a running Caterpillar.

[69]The risk assessment generated by the Claimant’s company on 16 October 2024 related to ‘machinery maintenance’. The task undertaken by the Claimant on the index day was not machinery maintenance in the narrow sense in that he was simply noting details for a replacement part. However, the rationale behind the risk assessment applies equally to any work undertaken on running machinery. The suggested control measures to reduce the hazard, such as turning it off before working, are common sense. I am not persuaded by the Claimant’s argument that a substantive distinction can be drawn between the scope of the risk assessment and the Claimant’s task that day.

[70]In my judgment, sadly the Claimant was careless in looking after his own safety that day. At 12.40.54 the light on the cab started flashing indicating that Bella had started the Caterpillar. The Claimant and Mr Gardiner were clearly expecting the Caterpillar to restart given that they had stepped away from the machine and were waiting for the Grab to be lowered to read the serial number. At 12.41.18 the Claimant stepped towards the Grab to remove an item of dirt/debris from it. That behaviour gives an insight into the complacent mindset of the Claimant when working around large machinery. In circumstances where the Claimant must have known that Bella had returned to the cab to start the Caterpillar, and the light on the cab had started flashing, it was reckless to move towards and touch the Grab without knowing when it may be activated. That was not the first time the Claimant had been willing to put himself in close proximity to the moving Caterpillar that day. Earlier in the scene at 12.33.58, the Claimant started to take measurements of the Grab whilst the light was still activated and the Grab had seconds earlier still been rising.

[71]By 12.41.23 the Grab started descending. That was plain for the Claimant and Mr Gardiner to see yet the Claimant moved towards the Caterpillar and positioned himself between the moving Grab and the body of the machine. By doing so he placed himself in a confined area that obviously risked him being trapped against the body of the Caterpillar if the Grab moved inwards. A reasonably prudent man would consider it foolhardy in the extreme to move towards the moving Grab and position themselves in that position of vulnerability.

[72]The fact that the Claimant, Mr Gardiner and Bella did not consider the Claimant’s actions a risk does not avail the Claimant of a defence. The test to be applied is objective and requires the Claimant to take the precautions that a man of ordinary prudence would observe: Froom at 294G. The views of the three men are better explained by their compliance, no doubt borne of the familiarity of working with heavy machinery on a regular basis, than being indicative of the standards of ordinary prudence.

[73]I have considered whether the Claimant’s actions amounted to mere inadvertence of the type that does not sound in contributory negligence fault but cannot accept that argument. The Claimant’s actions were not inadvertent but a deliberate decision to take the positive action of walking towards the moving Grab. The action was taken in circumstances where it should have been plain to him (and would have been plain to the reasonably prudent man) that being between the moving Grab and the machine put him in a position of danger. It would also have been clear to him that he could have readily waited away from the Caterpillar for a matter of seconds for the Grab to stop, and for the machine to be isolated or switched off, before the trying to obtain the serial number. Causation

[74]The Claimant’s injury did partly result from his fault. Had he not positioned himself between the Grab and the body of the machine, the sudden movement of the Grab would not have trapped him. Extent of responsibility

[75]The Defendant makes the sensible concession that the Defendant bears more of the responsibility for the Claimant’s injury than the Claimant does. The Defendant advances a three part analysis of the elements that caused the damage: movement of the joystick, the placement by the Claimant of his body in a dangerous position and the failure to isolate the machine. That analysis does not however take adequate account of the causative potency and blameworthiness of the relative elements.

[76]The Defendant is viciously liable for the actions of Bella. Bella was in control of a large, powerful and dangerous piece of machinery, which was operating in the Defendant’s yard. The onus rested on the Defendant to keep control of what was a potentially lethal weapon. Unfortunately, Bella managed to inadvertently knock the joystick, that error compounded by his earlier failure to apply the isolation switch or turn off the machine entirely. The urgent need for Bella to apply the isolation switch or turn off the machine should have been apparent to Bella as soon as the Claimant started his reckless walk towards the moving Grab. Furthermore, Mr Gardiner, the director of the Defendant with significant experience of the Caterpillar, stood by without demur as the Claimant moved towards the moving Grab and positioned himself in danger. The causative potency of the Defendant’s actions in failing to control the Caterpillar is very considerable indeed.

[77]The Claimant’s actions, whilst putting himself in harm’s way, do not hold the same causative potency. Although he was in a position of danger, it was ultimately the sudden, inadvertent movement of the Grab that caused the devastating injury.

[78]The Defendant seeks to increase the causative potency and culpability of the Claimant’s actions by laying the responsibility for failing to isolate the machine at the door of both the Claimant and Defendant. I am not persuaded that the causative potency for that error lies equally between the Claimant and Defendant. It was the Defendant who had immediate control over isolating the Caterpillar and who failed to do so. The Claimant played a far more secondary role in not ensuring the Defendant, through Bella, isolated the Caterpillar. Just and equitable reduction

[79]The weight of the responsibility for the Claimant’s injuries lies with the Defendant. How that sounds in a percentage apportionment is not a precise science, indeed it has been described as requiring a rough and ready assessment: Jackson at [28]. I also bear in mind that it is inappropriate to use decided cases as comparables: Jolley at 1089.

[80]In my judgment, the Defendant’s submission that contributory negligence falls to be quantified as high as 40% or even one-third fails to take account of the significance of the Defendant’s responsibility for failing to control a heavy, moving piece of machinery. Equally, the Claimant is unrealistic in its alternative case in minimising the Claimant’s recklessness to as low as 15%. The Claimant’s actions in placing himself in the dangerous position he did played more than a minimal role in this accident. In my judgment a just and equitable apportionment of the causative potency and blameworthiness is to make a finding of 20% against the Claimant. That amounts to the Defendant being four times as responsible for the accident than the Claimant. It reflects the lethal nature of the Caterpillar for which the Defendant is responsible but also the foolhardiness of the actions of the Claimant in placing himself in such danger.

Conclusion

[81]I do not lose sight of just how horrific this accident was and its devastating consequences for the Claimant. I am sure that all involved wish they could turn back the clock. One can only have significant sympathy for the Claimant. However, the court has to apply the law in accordance with established principles. On the facts of this case, the Claimant cannot wholly avoid a finding of contributory negligence albeit the appropriate apportionment is to the tune of 20% rather than the higher figure contended for by the Defendant.