Milroy v British Telecommunications Plc [2015] EWHC 532 (QB)

[2015] EWHC 532 (QB)Case No TLQ 14/0550
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/03/2015
Before
MR JUSTICE WILLIAM DAVIS
Between
Mr Ian Andrew Milroy (a protected party by Mrs Sharon Maria Milroy, his litigation friend)ClaimantBritish Telecommunications PLCDefendant
Mr Malcolm Duthie (instructed by Thomson Snell & Passmore) for ClaimantMr Iain Daniels (instructed by BT Legal) for DefendantHearing Hearing dates: 24-26 February 2015
Judgment

Introduction

[1]The Claimant, Ian Milroy, is now aged 55. In 1989 he began working for the Defendant, BT, as an engineer. In 2003 he attended a one day BT course in order to qualify as a Mobile Elevated Work Platform (“MEWP”) operator. He was trained to operate a Type 5 MEWP. This is a modified Ford Transit van with a boom rising from the roof of the van. The working platform is a bucket at the end of the boom capable of accommodating two people. The raising and other movement of the boom is controlled either from a set of controls within the bucket or from controls at ground level at the rear of the van. A MEWP would be used by BT employees to gain access to telephone lines and other relevant installations at high level.[2]Mr Milroy initially only worked intermittently as a MEWP operator. From 2004 he worked permanently in that capacity. Until early 2009 each MEWP was manned by two trained operators. One operator would work from the bucket whilst the other would act as ground support. Mr Milroy fulfilled both functions. From early 2009 onwards each MEWP was manned by a single operator. When a MEWP was required by an engineer working on site for high level access, whether on the highway or at a building, the engineer would contact a line manager who then would send a MEWP. The engineer would be required to act as ground support for the trained MEWP operator whilst the MEWP was being used.[3]On the 26 August 2009 Mr Milroy responded to a request for the attendance of a MEWP on a country lane near Catsfield, East Sussex. An engineer named Keith Bradley was on site there and he needed to gain access to the top of a carrier pole. Running alongside the lane were overhead high voltage power lines (“HVPL”). When Mr Milroy was operating the MEWP in its raised position, he came into contact with the current running through the HVPL either because his head touched the power line or because there was arcing of current from the power line. As a result he suffered serious injury.[4]Mr Milroy now brings a claim against his employers. He alleges that BT failed to provide a safe system of work such that they were in breach of their common law duty and in breach of statutory duties imposed by the Electricity at Work Regulations 1989 and the Provision and Use of Work Equipment Regulations 1998. He also alleges that they are vicariously liable for the breach of duty of his fellow employee, Mr Bradley. BT deny any liability to Mr Milroy. They say that they had in place a safe and sufficient system of work so as to fulfil their common law and statutory duties. Alternatively, they say that Mr Milroy was negligent himself to such an extent as to extinguish their liability or, at the very least, sufficient to reduce very substantially the contribution of any breach on the part of BT. I am required only to decide the issue of liability. Should it arise, the issue of quantum of damages – if not agreed - will be determined at a later date.

Preliminary issue – admissibility

[5]Mr Milroy did not give evidence from the witness box. On the 13th December 2013 he signed a comprehensive witness statement. That statement was the subject of a Civil Evidence Act notice dated 26 January 2015, the basis of the notice being medical evidence as to Mr Milroy’s lack of capacity to give evidence in court. Mr Daniels on behalf of BT submitted at the outset of the trial that I should not admit the evidence at all on the basis that the medical evidence demonstrated that Mr Milroy was not competent to give evidence at the time of his witness statement. I did not accept that submission for the following reasons.[6]On 26 November 2012 Mr Milroy’s capacity to instruct a solicitor and to understand the legal process was considered by a clinical psychologist, Lorna Morris. On testing of Mr Milroy she found the following: moderate to severe impairment of information processing speed; mild reduction in general memory functioning; severe impairment of attention abilities. She noted that he had poor insight into these cognitive impairments. Notwithstanding those matters she concluded that he had full capacity to conduct the proceedings. However, she went on to say that the impairments she had found on testing were likely to mean that he would not properly comprehend questions put to him in court were he to give evidence and that he might become flustered or confused in the witness box. She considered that, in that environment, he was at risk of being falsely led.[7]In December 2014 Dr Bodani, a consultant neuropsychiatrist, reported on the issue of mental capacity. He had examined Mr Milroy in September 2014. He confirmed and agreed with the findings made by Lorna Morris when she tested Mr Milroy. He disagreed with her conclusion that those findings were compatible with capacity to conduct the proceedings. He observed that the cognitive impairments meant that, if he were presented with too much information at the same time, Mr Milroy would “blank out” or would become flustered and anxious. Dr Bodani said that this meant that he would not be able to understand issues as they arose and to give proper instructions. Dr Bodani also referred to the risk of Mr Milroy being suggestible and easily led i.e. in the context of the conduct of the litigation.[8]That evidence clearly was sufficient to justify the appointment of Mr Milroy’s wife as his litigation friend. Mr Daniels’s argument is that it demonstrates that Mr Milroy was not capable when he made his witness statement of understanding the questions which must have been put to him for the statement to be taken and/or of giving a rational account of himself. I disagree. Mr Milroy undoubtedly would have considerable difficulty in dealing with the process of giving evidence in court and unassisted the evidence he gave in that context would be highly problematic. If these were criminal proceedings and he was required to give evidence, he would be the kind of witness for whom an intermediary to assist him would be essential. However, there is nothing in the evidence of Lorna Morris and/or Dr Bodani to indicate that Mr Milroy is or was incompetent to give an account of working practices at BT, of the training he received and insofar as he could recall them of the circumstances in which he came to be injured. He required the right circumstances and time to reflect on what he was saying. I am entitled to infer and I do infer that his solicitors approached the taking of his witness statement with the content of Lorna Morris’s report very much in mind.[9]His mild reduction in memory functioning is a matter to which regard must be had when assessing the reliability of Mr Milroy’s evidence. In his closing submissions Mr Daniels submitted that the evidence of Mr Milroy “must be approached with considerable caution” because of the issues surrounding capacity. That is putting it too high. I shall not ignore the medical evidence when assessing the evidence of Mr Milroy. Equally it does not provide a basis for significant caveats to be placed upon that evidence.[10]The effect on the weight to be given to Mr Milroy’s evidence due to his absence from the witness box is not an issue of admissibility. However, it is convenient to deal with it at this point. The written submissions of Mr Daniels note that important areas of Mr Milroy’s evidence – his training, his decision making on the day, the conversations he had with Mr Bradley, what actually happened – could not be explored in cross-examination. That is true. But there is a limit to what could have been achieved in cross-examination. Mr Milroy’s evidence is that his memory of events on the day of the incident comes to an end at a point prior to any possible discussion or decision making in relation to the use of the MEWP in close proximity to HVPL. There is no reason to doubt that part of his evidence. It is consistent with the medical evidence in respect of the consequences of the accident. It is something which BT accepted as genuine in the course of their investigations. It follows that cross-examination on the central issues in the case would not have been a useful or profitable exercise. I accept that he could have been cross-examined about training he underwent in September 2008 which both parties agree is of significance. Even that cross-examination would have been of limited scope. What Mr Milroy says about his recollection of that training is clear. I have had the advantage of seeing the training materials provided to Mr Milroy in precisely the same form as they were provided to him. Though some difficulties arise as outlined hereafter I am in a reasonable position to assess his evidence on this point. Although the absence of the opportunity to cross-examine is not to be ignored, it is of limited effect vis-à-vis the weight to be attached to Mr Milroy’s evidence.

The Factual Background – Training and associated issues

[11]When Mr Milroy in 2003 trained as a MEWP operator BT’s guidance in relation to working near to HVPL was set out at part 7 of a document EPT/PPS/B046 entitled “Work on overhead BT lines in the vicinity of power”. It was in relatively brief terms. The relevant passage was as follows:
“To avoid danger keep….elevating platforms etc. well clear of electrical equipment and, in particular, avoid any possibility of their contact with overhead power wires. When working near HV power lines, as far as possible, keep all personnel, tools and appliances away from any HV power conductor by a distance at least equal to the clearance shown below.”
In respect of a power line with an operating voltage of up to 33Kv (which was the type of power line involved in the accident) the clearance distance was identified as 2 metres.[12]It is not apparent from the evidence I have heard the extent to which Mr Milroy’s attention was drawn to that document. In 2003 BT’s system involved providing each engineer or MEWP operator with a Filofax containing all of the relevant manuals and safety guidance. I shall infer that Mr Milroy had a Filofax with this document within it. I have not seen the detailed content of the training given to him in 2003. I have been provided with what appear to be e-learning slides, one of which depicts a power line and bears the legend “33Kv keep 2 metres clear”. That is the only slide dealing with working near HVPL. Given the terseness of the document cited above I conclude that this was the sum total of Mr Milroy’s training in relation to HVPL at this point. Mr Milroy’s evidence was that he understood the instruction to be that he was not to go within the area of a notional 2 metre diameter from any HVPL.[13]David Wallington, the Group Safety Officer of BT, gave evidence that this guidance was intended to indicate that the 2 metre clearance was to be horizontal i.e. a MEWP on the ground should not be within 2 metres of the power line above. Mr Wallington frankly and properly accepted that this was not clear from the contemporaneous documents. He accepted that they sensibly could be read as indicating a clearance of 2 metres in diameter around the relevant power line. He said that the system of working in the vicinity of HVPL was “clarified” (to use his word) in about 2007 because the “confusion” (again his word) in the earlier documents had been recognised. There was no little debate in the course of the evidence as to the proper description of what occurred in 2007 in relation to MEWP working near HVPL. I am satisfied that it amounted to a significant and important change in working practice. I am satisfied also that it was a necessary change in the system of work. Merely leaving a clearance of 2 metres in diameter around a power line exposed anyone working in that position to a significant risk of serious injury or death.[14]Two relevant documents were issued by BT. By now the Filofaxes had been superseded by laptop computers. Thus, the documents were provided in electronic form only. SFY/GRA/A019 was entitled “Generic Risk Assessment – Working with MEWPs”. It set out in short form the system to be adopted when working in the vicinity of HVPL. It is not necessary to consider this document in any detail since it was accompanied and supplemented by a new section of the BT Health and Safety handbook – SFY/HSH/039. This latter document was the comprehensive revision of the system of working in the vicinity of HVPL. The essential features of the revised system were as follows:• An on-site risk assessment to be completed if a MEWP was to be used within 25 metres of HVPL.• In such circumstances 2 MEWP trained operators had to be in attendance before a MEWP could be operated.• A red sector was to be identified i.e. a minimum of 2 metres either side of the HVPL with a green sector beyond it.• No part of the MEWP could be allowed to encroach into that red sector at any time during the work.• The ground support person (“GSP”) had an essential role in what was termed safe sector working. He was required to be involved in the risk assessment and, during movement of the working platform of the MEWP, he was required to monitor visually the operation of the MEWP and to guide, warn and direct the MEWP operator in relation to the position of the MEWP in relation to the HVPL. In the event of the MEWP entering the red sector the role of the GSP was to tell the operator to stop the MEWP and to move it out of the red sector.[15]Since this was a significant change to the working practice of MEWP operation near to HVPL, BT provided specific training for MEWP operators and for engineers generally. In Mr Milroy’s case this occurred on the 19th September 2008. His evidence is that he was unaware of the new guidance prior to this date. The relevant documents were within the electronic file of guidance and instructions provided to him on his laptop. The evidence of Mr Wallington is that the documents thereby were “available” to Mr Milroy. In strict terms that is correct. However, it cannot amount to sufficient notice to an employee of a significant change to working practice for the relevant material to be placed in an electronic file containing many documents without any further notification. I am satisfied that Mr Milroy was unaware of the new system until September 2008. Until then he understood that a clearance of 2 metres in diameter around the power line was what was required. Moreover, I am satisfied that his understanding was a foreseeable consequence of the materials provided to him in 2003 and that it was foreseeable that he would have been unaware of the change in system unless and until specific steps were taken to alert him to it.[16]The training in September 2008 was by way of computer based training. On the day in question Mr Milroy undertook 13 different pieces of training activity. Other than the training in relation to “Working safely with MEWPs” (which was the relevant training so far as these proceedings are concerned) I have no evidence as to how long each piece of training lasted. Since each piece of training was separately recorded, I infer that each must have lasted at least a few minutes. The training was in relation to various disparate matters e.g. working on joint user poles, location of underground services, signing/lighting/guarding. The relevant training (“Working safely with MEWPs”) was an online programme consisting of a number of modules. At the conclusion of each module the trainee was required to answer some questions before moving on to the next module. There were 20 questions in total. Mr Milroy achieved a mark of 90% i.e. he answered 18 of the 20 questions correctly. There is no evidence as to which questions he answered incorrectly. The training programme lasted for around 30 minutes, possibly slightly longer depending on the length of time taken to answer the questions.[17]I have watched a DVD which replicates the online training provided to Mr Milroy in September 2008. Mr Milroy’s evidence is that he does not now recall the training he was given. He says that, until the material was disclosed to him as part of the post-accident disciplinary process, he remained unaware of the new system. He offers as a possible explanation the fact that he undertook a large number of training programmes on the day in question so that he did not take on board the information in question. Since the adequacy of the training and its context is significant, I must set out the content of the programme as I viewed it.[18]There were three modules of significance to this case – though it is to be noted that there were three other modules dealing with matters of no relevance to this accident. As the title of the programme suggests, it was concerned with general safety in operating a MEWP. What of the relevant modules? First, there was a module dealing with the GSP. Its message was that the primary responsibility of the GSP was to ensure that the operator and the public were not endangered but that the GSP’s role also was to provide help and advice to the operator. It required the GSP to be alert for HVPL together with any other hazards. In the event of work near to HVPL the GSP was required to have completed this training programme and to be a fully trained MEWP operator. Finally the GSP had to remain close to the MEWP so that he could observe what was happening. Second, there was a module dealing with risk assessments. It alerted the person being trained to the generic risk assessment and to the specific risk assessment required where there were HVPL. Third (and most important), there was a module in respect of HVPL. It identified the risks involved with work near any power line. It specified the clearance distance for each type of power line. It emphasised that the assessment of risk was to be a joint exercise between the operator and the GSP. The module then explained that this was a new way of working i.e. the red and green sectors and that no part of the MEWP could enter the red sector. The film showed a GSP marking out the red sector with cones. The module concluded with an explanation of the role of the GSP i.e. to monitor the operation of the MEWP visually and to guide and warn the operator in relation to the position of the MEWP and any HVPL.[19]I already have observed that assessing the impact of the programme on someone in Mr Milroy’s position is subject to some difficulty. As I watched it the new system was explained clearly. But I was watching it for a purpose and I knew to what the programme was directed. I did not see the programme in the context of a dozen other training programmes. I must take those matters into account when assessing the likely impact of the programme on Mr Milroy. Moreover, the questions which were posed in the course of the programme are of some significance. They covered various topics, most of which were unrelated to HVPL and the use of MEWPs in the vicinity thereof. For instance, there were three questions about belt safety and two about dropwires. The questions directly relating to work near to HVPL were as follows. What is the minimum safe clearance distance of HVPL carrying a charge of 200Kv? When does a laminated sheet have to be completed as part of the on-site risk assessment? The first could have been answered by reference to the pre-2007 system. The second referred to the new system but only tangentially. Therefore, Mr Milroy was not triggered to rehearse the critical element of the new system i.e. the introduction of a red sector into which the MEWP was forbidden from encroaching. I conclude that it was foreseeable that this single piece of computer based training delivered on the same day as a dozen other pieces of training would be insufficient to ensure that Mr Milroy had absorbed the very significant change that had been made to the system of work in the vicinity of HVPL. It follows that I accept his evidence that he did not appreciate that there was a new system or what it was.[20]In reaching this conclusion I reject the evidence of Mr Wallington on this issue. In his witness statement he said this:
“From my knowledge of the training that BT gives and from the records of the specific training the Claimant received and the competencies he showed in being licensed and in his FPQ checks I have no doubt that he would have been aware of BT’s policies and instructions relating to working near overhead power cables.”
Mr Milroy was licensed on 24 July 2008 i.e. about 8 weeks prior to his training. Any competency he showed in that process cannot have reflected “BT’s policies and instructions” as they then applied since Mr Milroy had yet to be trained. That factor undermines the conclusion reached by Mr Wallington. I observe in passing that it does not reflect well on BT’s process of licensing that a MEWP operator was licensed to work in the proximity of overhead electrical cables when he had yet to be trained on the system of work in place. As one of BT’s witnesses put it “there could have been a better way of doing it”. What about the FPQ checks? There were two such checks after Mr Milroy had been trained. An FPQ check is an exercise carried out by a BT manager of the employee as the employee is engaged on site. It requires the manager to go through a long list of questions, some of which will be marked “not checked” where the relevant activity is not being undertaken at the time. On 16 March 2009 Mr Milroy was seen by a Mr Blackaby. Question 40 (out of 63) was as follows:
“Can the person demonstrate that all hazards from any overhead power lines in the vicinity have been identified, knows the precautions to take and has applied appropriate control measures to manage any significant risks?”
Mr Blackaby marked that question as checked. In his witness statement Mr Blackaby said that he would not have marked this question as checked if he had not been satisfied about Mr Milroy’s competence. Mr Blackaby explained the position further in his oral evidence. What he actually asked Mr Milroy was “if you are in the vicinity of power lines, do you know the correct precautions to take?” or something to that effect. When Mr Milroy answered that he did, Mr Blackaby moved on since he “did not have time to go through every rule and regulation”. Mr Blackaby confirmed that the fact that other questions which were more specific to work near to HVPL were marked as unchecked meant that Mr Milroy had not been working near HVPL at the time of the check. The FPQ exercise in this respect did not involve any observation of the proper system in operation. I entirely understand the pressure of time under which Mr Blackaby was operating. He is not to be criticised for the perfunctory nature of his enquiry of Mr Milroy. Equally it is completely unrealistic to say as he did in his witness statement that he was satisfied about Mr Milroy’s competence in relation to HVPL. Mr Milroy’s response gave the listener no indication at all of what precautions Mr Milroy would take. On 11 August 2009 a further FPQ check was conducted by a Mr Simmonds. He marked the relevant question as unchecked doubtless because there were no HVPL in the vicinity at the time and he did not consider that he had time to review the relevant system in detail. All of that means that the conduct of FPQ checks does not begin to provide a basis for the assertion made by Mr Wallington.[21]Part of Mr Milroy’s pleaded case is a breach of Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998 which is as follows: 9. -(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. Given the context in which the training for the use of MEWPs in the vicinity of HVPL was given – the introduction of a new system of working to revise substantially a previous unsafe system where the possible consequence of failing to follow the new system was very grave – I conclude that the training given to Mr Milroy was not adequate. It was given many months after the new system was introduced via changes or additions to computerised materials. It was one piece of training delivered on a day when a significant amount of other unconnected training was provided. Even within the relevant training programme other issues were considered. The questions which formed part of the training did not address the critical aspects of the working method. Given the potential importance of the issue it was not adequate for there to have been no follow up whether via FPQ checks or otherwise. I also consider that it is significant that operating a MEWP in the vicinity of HVPL was unusual. Mr Wallington said that “the vast majority of MEWP operations occur away from HVPL”. Mr Milroy had never worked close to HVPL prior to the date of the incident. If training in the use of equipment is likely to be put into practice on a regular basis, the training will be reinforced by its practical application. That in effect will be part of the training. Here the relevant use of the MEWP was bound to be very unusual yet also extremely risky in terms of health and safety. That underlines the inadequacy of the training given to Mr Milroy.[22]Mr Milroy was known as a good and careful MEWP operator. That is the evidence of BT’s witnesses as well as the witnesses called by Mr Milroy. I am satisfied that, had his training been adequate, he would have followed the system as introduced in 2007. In that event he would not have suffered injury because the system of work would not have allowed him to operate the MEWP where he did. It follows that BT’s breach of statutory duty in respect of Regulation 9(1) was a significant cause of the accident.

The Accident

[23]The evidence as to the circumstances of the accident itself is limited. Mr Milroy’s injuries mean that he has no recollection of the events immediately prior to the accident. He does provide an account of the lead up to those events. He went to the country lane near Catsfield at around 4.00 p.m. on 26 August 2009. He met Mr Bradley whom he did not know. Mr Bradley was the engineer on site. He explained that he was trying to locate a fault on the line and that access to the top of a carrier pole (CP 10) was needed. The pole was designated “D” which meant that it was unsuitable to use a ladder. Mr Milroy conducted a risk assessment. This was an informal risk assessment which he did in his head. He noticed HVPL nearby but they were of no relevance to the use of the MWEP at CP 10 because they were some distance away. It is clear that this assessment was correct. Mr Milroy used the MEWP to gain access to the top of CP 10. Mr Bradley acted as GSP. Mr Milroy identified that the cables were not working at CP 10. He lowered the bucket of the MEWP. That is Mr Milroy’s last recollection until the following morning. Nothing up to that point was anything other than wholly routine.[24]In his closing submissions Mr Daniels observed that for subsequent events “Mr Bradley is the only evidence we have”. In fact there is no evidence from Mr Bradley in the ordinary sense of the word. Neither party has served a witness statement from him or called him. I draw no adverse inference against either party from the absence of Mr Bradley from the proceedings. Equally, I am left without any proper evidence from him at all. The effect of this lacuna in the case is accentuated when consideration is given to the hearsay material relating to Mr Bradley.• He told a police officer at the scene that a gust of wind had blown the bucket in which Mr Milroy was standing into the mains cable.• Prior to the arrival of the police he had said to a lady who had seen at least some of what had occurred that she should say that he was on the ground throughout.• In his BT disciplinary interview he said that he had gone up in the bucket with Mr Milroy because Mr Milroy did not know how to use the equipment to carry out the relevant line test, the decision to do that being a joint one.[25]In none of that material does Mr Bradley give any proper explanation of how the accident occurred. What he told the police officer was clearly a lie. His remark to the lady at the scene was linked to that lie. The only reported description of the accident from Mr Bradley comes from an investigation report prepared by his trade union. It is impossible to gauge whether what he told the investigator has been accurately reported. Assuming the report to be accurate, assessing the credibility of the account is highly problematic. There is no doubt that Mr Bradley told self-serving lies in the immediate aftermath of the accident. For what it is worth, his account as reported in the union investigation report was that the MEWP was moved from CP 10 to CP 9 in order for the line to be tested at that pole. The MEWP was used to gain access. He went up in the bucket for the reason given in his BT disciplinary interview. He said that he was working on the line at the top of CP 9 when a lady came on the scene with a horse. The lady could not get to where she wanted to go because of the position of the MEWP. She asked if the MEWP could be moved. Mr Bradley said that they would only be a couple of minutes at which point Mr Milroy unexpectedly moved the bucket. This surprised Mr Bradley because he was still working on the line at the top of CP 9. Mr Milroy said “oops sorry” at which point Mr Bradley turned to see Mr Milroy standing rigid. The bucket then moved back to the top of CP 9.[26]Mr Daniels relies on this account as an accurate description of the events. He argues that one consequence is that Mr Bradley cannot be criticised for failing to warn Mr Milroy about the proximity of HVPL as he moved back because Mr Bradley then was engaged in a task at the top of CP 9. I do not accept that the account is accurate in the respect relied on by Mr Daniels. There is a preponderance of evidence that the bucket was moved by Mr Milroy as a result of the request made by the lady with the horse. However, the distance from the top of the pole to the nearest power line was 4.25 metres. (I take this distance from the EDF measurement as later provided. It is a slightly shorter distance that was understood to be accurate during the hearing. The difference is of no significance.) The movement of the bucket on the MEWP could not be fast. The evidence is that, when first operated, the bucket will move at a snail’s pace. Whilst it can speed up a little thereafter, it would have taken at least 2 or 3 seconds to reach the nearest power line. Any surprise element would have disappeared by the time that Mr Milroy came into contact with the power line. The reality must be that Mr Bradley was aware that the bucket was to be moved as a result of the request by the lady with the horse. He was not still working at the pole when the bucket began to move and its movement did not come as a surprise. Had he chosen to do so, he could have kept a look out for the power line.

The system of work adopted on 26 August 2009

[27]In order to gain access to CP 9 Mr Milroy parked the MEWP almost exactly below the HVPL. For that reason he must have used a stepped approach to get to the top of CP 9. The bucket of the MEWP could only be moved in one plane at a time i.e. either upwards or sideways. In order to avoid the HVPL as the bucket achieved its position at the top of CP 9, Mr Milroy must have moved the bucket up a little, then to the side a little, then up a little and so on. In that way he was able to keep 2 metres away from the HVPL which was what he believed was required in order to operate the MEWP safely given the presence of the HVPL.[28]The unequivocal evidence of Mr Colquhoun, an engineer called on behalf of Mr Milroy, was that this was in fact a safe system of work albeit not the one prescribed by BT. Mr Cotterill, the engineer called on behalf of BT, agreed with Mr Colquhoun but he added that considerable care would be required in adopting this stepped approach. It is submitted that, if that joint view is accepted, the causative effect of any failings on the part of BT in respect of the accident fall away leaving only the part played by Mr Bradley as a relevant issue. I shall assume for this purpose that this submission is correct. Mr Daniels argues that I only can depart from the joint view of the expert engineers if there is a permissible evidential basis for doing so. I agree with that proposition. In fact there is ample evidential basis for doing so. Mr Wallington is a witness with a considerable level of expertise. In his witness statement he said “no sensible engineer or indeed member of the public in my view could reasonably assume operating a MEWP in such close proximity to power cables as the Claimant did is safe”. Leaving aside the implied comment within that evidence about the sense of the engineers instructed by the parties in this case, his view is properly admissible on the issue of safe system. The HSE inspector who completed the investigation, Mr Simmons-Jacobs, is a specialist inspector in relation to this type of incident. His view was expressed in clear terms. “….it was foreseeable that the basket of the MEWP or someone riding the platform might come into contact with the power cables during normal action of the boom and platform”. He cited guidance issued by the Energy Networks Association and the relevant BS code of practice in support of that view. It follows, I am quite sure, that, despite the evidence of Mr Colquhoun which has some support from Mr Cotterill, the system of work adopted by Mr Milroy was unsafe. It is true that the accident must have occurred when Mr Milroy did not strictly follow his stepped approach. But the very reason for maintaining the kind of exclusion zone set out in BT’s own system is to allow for the fact that a minor error close to HVPL can have catastrophic consequences. As Mr Wallington said, the operation of the MEWP at CP 9 should have never have taken place at all.[29]In the context of the system of work he in fact employed Mr Milroy pleads a breach of Regulation 4(3) of the Electricity at Work Regulations which is as follows: (3) Every work activity, including operation, use and maintenance of a system and work near a system, shall be carried out in such a manner as not to give rise, so far as is reasonably practicable, to danger. For the reasons already identified the system of work did give rise to danger. Because of the failure to provide Mr Milroy with proper training or other satisfactory notification of the appropriate system, BT created and are liable for this breach of statutory duty.

Mr Bradley

[30]Mr Bradley was not a fully trained MEWP operator. Thus, even if it had been possible to maintain a 2 metre horizontal exclusion zone (which it was not), the use of the MEWP should not have taken place. A second fully trained MEWP operator was needed to act as GSP. Much debate occurred in the course of the case as to whose responsibility it was to establish Mr Bradley’s status. Should he have pointed out his lack of qualification so as to prevent the use of the MEWP near to HVPL? Was it incumbent on Mr Milroy to do so in view of his status as MEWP operator? This debate was wholly sterile. Neither man appears to have been aware of the requirement for a second MEWP trained operator to act as GSP. Certainly Mr Milroy was not. That follows from my findings in relation to his knowledge of the content of the electronic guidance and his recollection of the September 2008 training. In early 2009 Mr Bradley undertook the same computer based training programme as that completed by Mr Milroy in 2008. In the course of his disciplinary process he said that he remembered “very little of it”. On the balance of probabilities I conclude that Mr Bradley had no real recollection of the training he had been given in relation to working with a MEWP in the vicinity of HVPL. Thus, he did not recall the requirement in respect of attendance of a second trained MEWP operator. In all of those circumstances the issue of who was responsible for establishing Mr Bradley’s status does not arise.[31]What can be said about Mr Bradley is that he did not stay on the ground to act as a GSP when the MEWP was being operated in close proximity to HVPL. In his state of knowledge as it then was, that is what he should have done. Had he done so, he would have been in a position to warn Mr Milroy whenever he moved too close to the HVPL. As BT’s own guidance makes clear, that is a primary purpose of a GSP when there are overhead dangers. In argument it was suggested that the GSP is there to deal with the safety of those on the ground. That is part of the function of a GSP but only part. By entering the bucket Mr Bradley ensured that there was no proper lookout being kept for any incursion of the bucket into area close to the HVPL. I am satisfied that this was a causative breach of his duty owed as a fellow employee to Mr Milroy.[32]I do not consider it necessary to consider whether Mr Bradley, once he was in the bucket, failed in his duty to keep a look out as the bucket was manoeuvred – always assuming such a duty existed. His fundamental breach of duty was removing himself from a position on the ground where he could provide proper guidance as a GSP. He apparently did so because he had the technical knowledge to carry out the relevant test whereas Mr Milroy did not. One answer to that conundrum was to contact the coach (someone in a supervisory capacity) to whom he already spoken twice in the period leading up to the accident and explained the problem. Whatever the coach would have advised or decided, it certainly would not have involved Mr Bradley going aloft in the bucket along with Mr Milroy.[33]No evidence has been called from the coach (a gentleman named Guttridge). Part of Mr Milroy’s pleaded case is that this man ought to have realised that there were HVPL in the area in which event he ought to have stopped the work taking place – or not sent Mr Milroy to the scene at all. I am not convinced by this proposition. It is said that the presence of underground BT cables ought to have alerted him to the presence of HVPL. Even if that should have been sufficient to alert him, Mr Guttridge provided a MEWP to work at CP 10 where there were no proximate HVPL. I tend to the view that any proven failing on the part of Mr Guttridge is too remote from what befell Mr Milroy.[34]As it turned out it was unnecessary for the MEWP to be used at all at CP 9. On the day after the accident the relevant repair was carried out using a ladder. Although undergrowth needed to be cleared from the area, it was something which was achieved by the two engineers who attended on the next day. Had Mr Bradley adopted that course, no question of using a MEWP near to HVPL would have arisen at all. Mr Bradley was aware that CP 9 was close to HVPL. He knew or ought to have known that this rendered problematic the use of any kind of hoist. In his disciplinary interview he conceded that he simply had given no consideration to any method of working which would avoided the use of the MEWP to gain access to CP 9. Those conducting the interview identified a method of testing which did not involve leaving the ground at all and which could have been used in the situation which faced Mr Bradley. That would have meant that the MEWP never would have been used at CP 9. Mr Bradley was the engineer carrying out the relevant repair work. Mr Milroy only was on site because he was a MEWP operator. It was for Mr Bradley to consider available alternative testing methods. I am satisfied that Mr Bradley was in breach of his duty of care to Mr Milroy by not considering a method of working which did not involve the use of a MEWP close to HVPL when such a method could have been adopted. Mr Bradley was acting in the course of his employment. BT are vicariously liable for his breaches of duty.

Contribution of Mr Milroy

[35]When opening the case on behalf of Mr Milroy, Mr Duthie accepted that Mr Milroy contributed by his own negligence to the event which caused his injury. That was an entirely realistic concession. Mr Daniels submits on behalf of BT that, whatever their breaches, the accident was caused wholly by the negligence of Mr Milroy. When he moved the bucket of the MEWP, he must have been aware that HVPL were close by yet he moved the bucket without keeping a proper lookout. Mr Daniels argues that these actions were the sole cause of the accident. I reject that argument. Where an employer is in breach of a statutory duty owed to an employee, it is rare for that breach not to be of causative effect. That is particularly so where there is more than one breach and where, had the breaches not occurred, the employee would never have been in the situation which led to his injury. In the circumstances of this case BT’s breaches of duty as set out above were a substantial cause of the accident. In addition, the breaches of duty of Mr Bradley for which BT are vicariously liable were of significant causative effect.[36]On the basis of my findings as set above, two criticisms can be made of Mr Milroy. First, he moved the bucket so that he came into contact with the HVPL – or, if not into actual contact, then so close to them as to create an arcing effect. The difference between those two scenarios is of no consequence in terms of Mr Milroy’s lack of care. Second, he allowed Mr Bradley into the bucket and went on to raise the MEWP with Mr Bradley on board so as to remove the GSP.[37]As to the first criticism, I consider that the type of short term inattention which was involved in Mr Milroy’s movement of the bucket is the very thing anticipated by the system of work introduced in 2007 by BT. The system of work was set up because an operator of a MEWP cannot operate to fine margins in the vicinity of HVPL. On the available evidence Mr Milroy moved the bucket due to the request of the lady with the horse. He may have been distracted by her. He may have misjudged how far he could move back before beginning his stepped movement of the boom. Mr Milroy failed to take due care in what he was doing but the lack of care was modest and was far outweighed by the breaches of duty which had placed him in the position in which he found himself.[38]As to the presence of Mr Bradley in the bucket, Mr Milroy clearly must accept at least an equal share of the blame for that and for its consequences. Mr Daniels argues that it was within Mr Milroy’s power to prevent Mr Bradley entering the bucket and/or to refuse to move the MEWP whilst Mr Bradley was in that position. He points out that Mr Milroy was the qualified MEWP operator and, as such, in charge of its operation. Thus, so it said, Mr Milroy must bear the greater part of the responsibility for Mr Bradley’s failure to act as the GSP. I do not accept that proposition. There is no evidence that either man was in a position superior to the other in terms of their status within BT. The reason why Mr Bradley did what he did was because Mr Milroy could not complete the relevant test due to lack of some technical expertise. In his disciplinary interview Mr Bradley acknowledged that “I thought the quickest thing to do was to go up in the bucket with him”. He went on to say that it was the decision of “both of us”. I conclude that the notion of Mr Bradley going up in the bucket came from him. Mr Milroy could and should have vetoed it but, in the circumstances as a whole, he is no more than equally at fault in relation to the absence of a GSP. Further, I am satisfied for the reasons already given that the further and separate breach of duty on the part of Mr Bradley was not contributed to by Mr Milroy.[39]Taking all matters into account I conclude that the contribution of Mr Milroy to the accident and to his consequent injury is one third. In reaching that conclusion I have considered the review of the underlying principles to be applied when assessing contributory negligence as conducted by the Supreme Court in Jackson v Murray and another [2015] UKSC 5. Although that review was carried out in a different context, namely a collision between a car and a pedestrian, the general principle of achieving a balance between causative potency and blameworthiness applies to the circumstances of this case.[40]It follows that there must be judgment for the Claimant on the issue of liability subject to a reduction of one third to allow for his contribution. Counsel must draft the consequent order to include directions for a CMC to deal with issues of quantum.

Cited in 1 later judgment