Sowmez v Kebaberry Wholesale Ltd [2008] EWHC 3366 (QB)

Case No TLQ/08/0652[2008] EWHC 3366 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 31 October 2008
Before
HIS HONOUR JUDGE HAWKESWORTH Q.C.
Between
SOWMEZClaimantKEBABERRY WHOLESALE LIMITEDDefendant
Wordwave International, a Merrill Communications CompanyPO Box 1336, Kingston-Upon-Thames KT1 1QTTel No: 020 8974 7305 Fax No: 020 8974 7301Email Address: Tape@merrillcorp.com(Official Shorthand Writers to the Court)
MR NICHOLAS HILLIER (Instructed by Levenes) appeared for ClaimantMR RICHARD HARTLEY (Instructed by DWF) appeared for Defendant
JudgmentJUDGE HAWKESWORTH:
[1]The Claimant suffered a very serious injury on 8 July 2004, while working for the Defendants. He was cleaning a Cresta mixing machine when his arm was caught by the revolving mixing arm and so severe was his injury that his right arm had to be subsequently surgically amputated at the shoulder.[2]There was ordered a trial of preliminary issue of contributory negligence, primary liability having been admitted by the Defendants. The Defendants accept that the onus is upon them in these proceedings to establish contributory negligence on the part of the Claimant. I therefore heard evidence, first from the owner of the Defendant’s business, Mr Burak Etcheri, and from the Claimant’s fellow employee, Mr Binali Keklik. The Claimant then gave evidence followed by his witness, Mr Umit Keklik. Apart from Mr Etcheri all the witnesses required an interpreter and gave evidence in their native language, Turkish.[3]The background facts were as follows: the Defendant’s business originally operated from a kebab shop in Epping High Street. At the rear of these premises was a room in which meat preparation took place. There were three machines, a slicing machine, a mincing machine and a rotary mixer. This latter machine, which is shown in photographs in the bundle, has a large stainless steel bowl which, when operating, rotated on its base. Within the bowl there is a central spindle and a fixed mixing arm which comprise two steel curved bars, which were in a fixed position angled down towards the base of the bowl and passing close to the central spindle. These rotated upon their own axis. The bowl was covered by a steel lid, which had an interlock device in two parts. The lid was fitted with a magnet or key which rested, when closed, upon a contact plate attached to the bowl. This completed a circuit so that the machine could only operate when the two parts were in contact and the lid was closed. The minced meat and other ingredients would be loaded into the steel bowl and mixed for the making of doner kebabs and after the meat was removed, at the end of the day the mixing bowl would be cleaned.[4]The cleaning of the bowl was one of the jobs which the Claimant was required to perform. He had started work for the Defendants in October 2002. At the High Street premises the mixing bowl could only be cleaned when the lid was opened and the machine was stationary. The sticky meat and fat residue would be scraped off with a plastic scraper and then the bowl would be cleaned with a cloth soaked in hot water, bleach and washing up liquid. The owner of the business, Mr Burak Etcheri, showed the Claimant how to do this.[5]About 18 months before the accident the meat processing machines were moved to new premises at Shaftsbury Farm near Epping, about one mile from the shop. The Claimant moved there with the other employer, Mr Binali Keklik who was the more senior employer and was responsible for mixing the meat and forming it into the doner kebabs. Shortly after the move to the new premises the interlock device became faulty and as a result the machine would not run with the lid shut. A new interlock device was accordingly fitted, but the old parts were retained by Mr Etcheri at the premises. By using one of the old parts of the interlock mechanism and placing it on the contact on the bowl it then became possible to operate the mixing machine with the lid open.[6]On the day of the accident the stage in the meat processing had been reached where it was time for the Claimant to clean the machine. He used the old interlock device to override the mechanism and began to clean the bowl with the machine switched on using the plastic scraper. Mr Binali Keklik was working n another area close by washing knives and Mr Etcheri was in the office between ten to 20 metres away. Having started to clean the Claimant then heard his mobile 'phone ringing and he moved away from the machine, which he left running, to have a telephone conversation. He spent a few minutes on the telephone and on his return he resumed cleaning the inside of the bowl. The machine, however, began to rotate the mixing arm at a faster speed, as it did automatically after running for a few minutes, and according to the Claimant this sudden speeding up of the mixer caused his right arm to be caught and he was pulled down into the mixing bowl instantly suffering serious injuries to his arm. He managed, however, with his free hand, to knock the magnetic device from the machine and it stopped operating. His screams alerted Mr Keklik and Mr Etcheri who rushed to try and extricate him, but it took 30 to 40 minutes to dismantle the machine and while he remained trapped and fully conscious the Claimant was suffering in terrible pain.[7]The Defendant’s case is that the Claimant was himself party to blame for this accident for adopting this method of cleaning the machine while it was in operation. The Defendant’s liability is admitted upon the basis that they failed to take sufficient steps to prevent the overriding of the interlock mechanism on the machine hence, they were in breach of their statutory duty to the Claimant which required under the Provision and use of Work Equipment Regulations 1998, that they take effective measures to prevent the Claimant’s access to any dangerous parts of the mixing machine while it was in motion.[8]The evidence of Mr Etcheri was that he had never condoned the use of the spare magnet for cleaning the machine and had he seen the Claimant doing so he would have severely reprimanded him. He maintained that while trapped in the machine the Claimant admitted that he knew he should not have been cleaning the machine in this way. However, this was not something he had told the Health and Safety investigators when he was interviewed on 28 September 2004, seven weeks after the accident. He did, however, admit in that interview, that he had disciplined Mr Binali Keklik “A couple of times,” for using the device to override the interlock. This was on occasions when meat was being mixed in the machine, but he maintained that he never saw Mr Keklik with his hands in the machine while the machine was operating with the lid open. Normally, he said, the old parts of the interlock were kept in a box in a cupboard in his office and it was kept simply as a possible source of spare parts. He was, however, quite unable to explain why he had not thrown the part away or locked it away when he saw Mr Keklik using it to override the interlock. He was also unimpressive in explaining how it was that his second witness statement made in these proceedings, which commented on Mr Keklik’s statement to the Health and Safety Executive, he said that it was true that Mr Keklik used the override while mixing meat, but “He was unaware of that.” In the end he maintained that apart from the two occasions when he had severely reprimanded Mr Keklik he had been unaware of any regular use of the spare key.[9]Mr Binali Keklik in his evidence maintained that the spare key was used “On one or two occasions with the lid open.” He maintained that was done to avoid the machine switching itself off when it was over-filled and vibrated. He initially denied using it to enable more meat to be placed in the bowl, which would otherwise force the lid up and switch off the machine, nor to allow meat to be taken out when it had separated and could then be lifted out, as I understand it, more easily in lumps, to be placed in the doner moulds. He said it was his idea to use the spare part having seen it in Mr Etcheri’s office in the cupboard. Later in his evidence, however, he agreed that in two other circumstances as described in his witness statements he overrode the interlock; when he had overfilled the bowl when the meat would lift the lid and also, as described in his statement to the Health and Safety Executive, to get the machine to do a half turn to push the meat at the back of the bowl to the front to enable it to be taken out. However, he could not satisfactorily explain why he had told the Health and Safety Executive that his employer, Mr Etcheri, did not know of this use of the spare key when he now accepted that he had been reprimanded by Mr Etcheri for using the spare key. Nor could he explain why he had told the Health and Safety Executive in his statement that he had never seen the Claimant attempting to clean the machine while it was still working when he was now saying that he had seen him doing so on two or three occasions and had issued the Claimant with a severe reprimand. He blamed this omission on what he termed was his psychological state at the time.[10]The Claimant’s account was also not free of inconsistencies. He maintained that after the interlock mechanism had been replaced Mr Etcheri showed him how to use it to clean the machine while it was running. This was in contrast to the Health and Safety Executive statement, which he made on 24 August 2004, which stated as follows:
“My boss, Burak, taught me how to use the machines, which I was going to use at the Kebaberry Wholesale Limited. My boss was Burak and it was Burak who used to give me instructions in relation to my duties. Normally I would clean the machine while the machine was running and the bowl was turning slowly. We had a magnet which we used to do this with the lid open. We were able to run the machine with the lid open by attaching this magnet to the machine. No one gave me specific instructions relating to the cleaning of the machines. I was not told by anyone that I was not supposed to the clean the machine or the bowl, while the machine was still running or while the bowl was turning.”
In that statement he had gone on to say:
“When I started to clean the meat mixer the machine was running. I had attached the spare magnet to the machine and in this way I was able to run the machine with the lid still open. The lid started to turn slowly and I started to clean it. We always cleaned this machine in this way and on the days prior to the accident both Binali and Burak saw me cleaning the machine in this way.”
He denied in evidence that he had ever been told not to clean the machine while it was running and denied admitting immediately after accident that he knew he should not have been cleaning the machine in that way.[11]His case concluded by calling a witness, Mr Umit Keklik, who claimed that he worked at the Shaftsbury Farm premises also. He was a relative of the Claimant and had come forward quite recently as someone who could support the Claimant’s case. He was the manager at the High Street kebab shop, but maintained that after the move to Shaftsbury Farm he worked there from time to time to cover for absent employees, mainly the Claimant. His statement alleged that he adopted the same cleaning method as the Claimant without any objection from Mr Binali Keklik and after Mr Etcheri had warned him to be careful about the speeding up of the machine after it was turned on. Mr Umik Keklik was not, however, at all impressive as a witness and he did not convince me that the evidence of the Defendant’s witnesses was incorrect, namely that he only visited the Shaftsbury Farm premises to deliver lunch to the employees there. He had left the employment of the Defendants after a disagreement with Mr Binali Keklik over pay and despite his protestations to the contrary, I did not regard him as a witness whose evidence was reliable or truthful.[12]Having listened carefully to the Defendant’s witnesses I was not persuaded that the use of the spare key was either a rare or infrequent occurrence. It had a variety of uses, as admitted by Mr Binali Keklik, and I cannot accept that Mr Etcheri was unaware of its use in mixing the meat with the lid open. The Claimant spoke of seeing it in use frequently during this process and I accept that it was. When not in use I do not accept it was always kept in the cupboard in the office. The evidence suggests that it was placed on or near the machines and at times was carried by Mr Binali Keklik in the pocket of his apron. Neither can I accept that the Claimant was ever reprimanded by Mr Binali Keklik for cleaning the machine with the spare key in place and the machine operating. The Claimant was in a vulnerable position as an employee who had come to this country without his family and he was eager to work to provide for them. He would not, it seems to me, having seen and heard his evidence, have done anything to risk losing his job and I believe him when he says that, if he had been told not to work in this dangerous way he would not have done so.[13]I cannot, however, accept that Mr Etcheri went so far as to instruct the Claimant to clean the bowl with the machine running. He would have no need to do so having instructed the Claimant at the old premises in cleaning the machine when it could not operate with the lid open. There was no need arising from pressure of time or any other circumstance leading to the method adopted by the Claimant. In my judgment the method used by overcoming the interlock was simply a shortcut taken by the Claimant to avoid the need to scrape the bowl and the other components by holding the scraper against the moving parts.[14]Was Mr Etcheri aware that this cleaning method was being adopted and was it condoned by him? I do not take the view urged upon by Mr Hillier on behalf of the Claimant, that Mr Etcheri has wholly manufactured his account of the Claimant’s admissions when he was still trapped in the machine. I have no doubt that in the agony of the moment the Claimant may well have acknowledged the foolishness of what he had done with the hindsight which this terrible accident now afforded. However, such admissions can have no weight and are rightly not relied upon by Mr Hartley, Queen’s Counsel, on behalf of the Defendants. The Claimant, however, probably did know that he was not supposed to have cleaned the machine in this way having been taught at the old premises to switch off the machine before he cleaned it. But I have come to the view that this method of cleaning was not followed once the spare key became available and that effectively, both Mr Keklik and Mr Etcheri turned a blind eye to what the Claimant was doing. I find it difficult to accept that over the months that this practice was followed Mr Etcheri would have been unaware of it taking place. His office was not very far from the meat processing area and he would go in and out of his office during the day. If this had been forbidden by Mr Etcheri I do not consider the Claimant would have risked being discovered cleaning the machine in this way, similarly, if he knew that Mr Etcheri would take strong action, possibly leading to dismissal. The Claimant was compliant and industrious and he was following a practice which, in my judgment, was allowed to develop without any intervention from his employer.[15]In considering whether in those circumstances the Claimant was guilty of contributory negligence I have to have regard to the words of the statute: “Where any person suffers damage as a 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” - Law Reform Contributory Negligence Act 1945 s.1(1). Such a provision gives the court a wide discretion and in each case clearly the factual context in which the Claimant’s conduct takes place is highly relevant. In this case the Defendant’s had the statutory responsibility for ensuring that the safety of the operation being carried out by the Claimant was provided for by the effective working of the interlock device and proper instruction and supervision. In this they failed and failed over a period on the evidence of at least six months.[16]Mr Hartley on behalf of the Defendants urges upon me that the failure of the Claimant to take proper care for his own safety arose from his deliberate actions and not merely inadvertence. He knew the interlock device was provided for his protection and he knew or should have known of the danger which arose from contact with the moving parts. It appears that in answer to my own questions the Claimant was attempting to scrape the area between the central spindle and the mixer arm or indeed the mixer arm itself when the machine suddenly speeded up and caught him unaware. He believed, he said, that when operating at its slower speed it was reasonably safe to use the scraper in that area, but only regarded it as dangerous at the higher speed.[17]Mr Hiller has cited to me a number of authorities, which are illustrative of the proposition 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.”
Lord Reed, John Summers & Sons Limited v. Frost [1955] AC 749 at p 773. Mere inadvertence or a momentary error of judgment is not to be held fault which justifies a reduction in the damages recoverable. Similarly, a finding should not be made in circumstances where the failure of the Defendants to discharge their statutory responsibility was the fundamental cause of the accident and the Claimant’s actions were merely an excusable lapse of judgment arising from the circumstances created by his employers.[18]I have come to the view, however, in this case, that the Claimant cannot be wholly held free of responsibility for the accident in the circumstances I have found to have existed. The Claimant knew that the machine’s interlock was there to prevent access to the moving parts and he was able to clean the machine while it was stationery, as he was originally instructed. Although he did not regard the slow moving mixing arm as dangerous he knew it would at some stage speed up and although I accept he either forgot or misjudged the moment when that occurred he should have been alive to that possibility. The preponderance of blame, however, must lie upon the Defendants for the occurrence of this accident and in the circumstances I assess the Claimant’s contributory negligence at 20 per cent.