Baxter v Barnes )t/a We Barnes Tree Surgeons) [2015] EWHC 54 (QB)

[2015] EWHC 54 (QB)

Case No HQ13X00954

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 12/01/2015

Before

HIS HONOUR JUDGE COLLENDER QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

CHRISTOPHER BAXTERClaimant

A BARNES t/a WE BARNES TREE SURGEONS and/or UPAND OUT PLATFORM HIREDefendant

Mr Nigel Cooksley QC (instructed by Irwin Mitchell LLP) for Claimant

Mr A John Williams (instructed by BLM Solicitors) for Defendant

Hearing Hearing dates: 18, 19 and 20 November 2014

Judgment

.............................

HIS HONOUR JUDGE COLLENDER QC INTRODUCTION

[1]This is a claim for damages for personal injuries and consequential loss arising out of an accident suffered by the Claimant on 1 December 2010. On that day, the Claimant was engaged in his business, together with some of his employees, in the pruning of a tree. He and one of his employees, Mr Milbourn, were working from the basket of a sophisticated piece of equipment called a Mobile Elevated Work Platform (MEWP) which had been hired by the Claimant from the Defendant. In the course of this judgment I will refer to that piece of equipment as “the platform”.

[2]In the course of the work the platform toppled over causing the Claimant, and Mr Milbourn, to suffer serious injuries.

[3]In this action the Claimant asserts that the Defendant is liable to him for breach of contract and in negligence, claiming that the accident was caused, by reason of defects in the platform and/or instructions given to him by the Defendant in respect of the set up of the platform. By way of defence, the Defendant asserts that the accident was solely due to errors of the Claimant in the setting up or operation of the platform. Alternatively, he claims that the accident was due to the contributory negligence of the Claimant.

[4]By an order of Master Kay QC, given on 3 March 2014, it was ordered that all issues of liability should be tried in advance of a trial on quantum of damages. This judgment is given solely in respect of those liability issues.

THE FACTUAL BACKGROUND

[5]I will set out the facts that are agreed, or on the evidence before me cannot sensibly be disputed.

[6]The Claimant is now aged 32, his date of birth being 30 August 1981. He is an arborist and his business is concerned with many aspects of the care of trees including their pruning and felling. He has been engaged in such work since he was 16, has a diploma in arboriculture and holds an IPAF (i.e. International Powered Access Federation) certificate in respect of the use of platforms similar to that involved in the material accident.

[7]Before the accident, he had been engaged by the owners of a substantial residential property, the Old Rectory in Milborne St. Andrew, Dorset, to prune a large copper beech tree, overhanging the house. The Claimant and his employees commenced work on the job in November 2010 and worked initially by gaining access to the branches to be pruned by means of ropes and harnesses. However, the Claimant decided that he would need a platform, safely to prune the remaining branches, which were growing over the house and garden. Access to the site where the Claimant was working was limited, and the tree was close to a slope. In these circumstances, the Claimant decided that the appropriate machine for the job was a specialised type of platform known as a ‘Spider’ that was specifically designed for use in such situations.

[8]Mechanised elevated work platforms have long been used for a variety of tasks such as street light maintenance, tree surgery and the like. A common kind of such amachine is a conventional lorry type vehicle with outriggers that can be lowered to stabilise the vehicle upon which is mounted a hydraulic lifting system that carries a personnel basket to provide a secure aerial working platform. These are commonly known as ‘Cherry pickers’. ‘Spider’ platforms are mounted on tracks like a tank and have a more flexible or adjustable system for the positioning of the four outriggers of the platform than a ‘Cherry picker.’ The outriggers can be moved in and out, up and down and from side to side. It has a hydraulically operated system of booms that allows the basket to be raised to a variety of positions above the vehicle. This may be likened to an arm with an elbow, the shoulder joint being attached to the vehicle, the upper arm, or pantograph boom, running from the shoulder to the elbow and the forearm or telescopic boom, running from the elbow to the basket. If the outriggers are not properly positioned there is a danger that such a platform may overbalance in use. ‘Spider’ platforms are therefore commonly equipped with a number of inbuilt safety devices. In particular, they are equipped with sensors to detect if the basket from which operators of the platform work is overloaded, or that the pressure on the foot of an outrigger falls below a safe operating level, in which events the sensors operate to warn the users of the platform of the danger and to prevent further movement of the platform’s basket outside the safe operating envelope of the platform.

[9]The Defendant is a tree surgeon who has equipment for use in that business. In the course of his business he sometimes hires out that equipment for trade use. In 2005 the Defendant purchased from a company called Promax Access Limited an RQG 18 ‘Spider’ platform for use in his business. The platform was suitable for working on sloping ground so long as the feet of the outriggers were properly supported on ground that was reasonably level, firm and stable.

[10]In his marketing literature the Defendant illustrated the platform in question and noted:

“[We] specialise in mobile elevated access platform hire for narrow access situations. Our platforms are extremely versatile, fitting through openings of less than 1m. They can negotiate rough or soft terrain, and have a multi- positional outrigger set up, ideal for setting up on slopes, and narrow or uneven surfaces.”

[11]When the Defendant purchased the platform he was given two days of training in its safe and proper use by Promax. The platform was supplied and hired by the Defendant, with a detailed user manual.

[12]The Defendant used the platform in the course of his business as a tree surgeon and also hired it out to others. Before the Claimant’s accident, the platform, that was subject to routine maintenance, and six monthly statutory examinations, had been used for a total of some 2,200 hours without untoward incident.

[13]Following an exchange of emails and telephone calls, the Claimant agreed to hire the platform from the Defendant to assist him in completing the pruning of the beech tree at the Rectory. The contract was a contract for the hire of the platform and its associated equipment alone. The Defendant offers customers the option of hiring out such equipment with an operator who would set up, and operate, the platform. However, the Claimant did not choose to hire the platform with an operator.

[14]The only specific purpose that the Claimant made known to the Defendant by the Claimant during the negotiations was the need for the platform to travel up a slope to reach the area where it was to be operated.

[15]The Claimant visited the Defendant’s premises and met the Defendant. The Defendant instructed the Claimant in the use of the platform, including how to set it up and operate it on slopes, on uneven ground and in confined spaces. He explained to him how the safety sensors worked.

[16]On 30 November 2010, the Defendant delivered the machine to the Rectory. He spent some time with the Claimant helping to set up the platform in the first location from which work was going to be performed by the Claimant.

[17]Together with the platform, the Defendant supplied the Claimant with hard plastic pads, or plates, to act as a support for the feet of the outriggers of the platform. In the course of the trial, I was told that this platform was not supplied by the manufacturer with plates for the outrigger feet. This particular type of platform was withdrawn by the manufacturer in 2010, and their current equivalent model comes with plates fixed to the outrigger feet. The plates hired to the Claimant were not supplied by Promax to the Defendant when he purchased the platform but were subsequently obtained by him for use with the platform.

[18]In accordance with instructions given by the Defendant when first setting up the platform, the Claimant and his employees dug out resting places for the plates for the outrigger feet, levelled by eye.

[19]After the Defendant had left the site, the Claimant and his employees worked from the platform on the tree until all the branches to which access could be gained from that position of the platform, had been dealt with, following which the Claimant and his employees moved the platform to another position. Resting places for the outrigger feet and plates were again dug out, as had been done when the platform was first positioned. Further work was then performed from the platform, during the rest of the working day.

[20]At the end of the working day, because the weather was frosty, the Claimant and his employees manoeuvred the platform so that its tracks rested on logs to prevent them freezing to the ground. The outriggers were then raised from the ground. This was done in accordance with advice given by the Defendant.

[21]Early the following morning, the Claimant had a personal appointment and his employees, in his absence, set up the platform and commenced work. When the Claimant returned to the site at about 9.30 he, and Mr Milbourn, went up in the basket and continued pruning the beech tree. Their combined weight, together with the weight of their equipment was unlikely to have exceeded the weight limit for the basket of 200 kgs. If it had done so, the safety features of the platform already described should have prevented the platform being operated.

[22]Having completed the work that it was possible to perform from the position they were in, the Claimant needed to change the position of the basket. It had been positioned with the booms of the platform at about their fully extended position so that the turning moment created by any lowering of the booms from a vertical or nearly vertical position towards a more horizontal position would be at, or near, its maximum potential. To re-align the position of the basket, the Claimant simultaneously commenced to shorten the telescopic boom and lower the basket. As this manoeuvre was performed, both the Claimant and Mr Milbourn felt the platform judder. It then toppled over. It is clear that in the course of the manoeuvre described, the turning moment applied to the platform was sufficient to overbalance it. Photographs taken after the accident demonstrate that the two outriggers of the platform placed closest to the Rectory lifted up from the ground, one of those outriggers catching the wall of the Rectory, causing the platform to twist as it fell.

[23]After the accident, investigations were carried out into the cause of the accident by the Health and Safety Executive. The HSE inspector, Mr Schofield, inspected the site of the accident on 2 December 2010 and took a series of useful photographs. He numbered the outriggers and their feet, for the purposes of his report, 1 to 4. Throughout this litigation that numbering system has been adopted by all. He found the ground where the platform had been placed to be sloping. He measured the levels at the position of each outrigger plate and found them to be sloping in varying directions as follows: Outrigger 1 – downwards 4.8º Outrigger 2 – downwards 1.8º Outrigger 3 – downwards 4.1º Outrigger 4 – upwards 5.9º

[24]In respect of outrigger 3, he reported as follows:

“Beneath the plate, compacted smooth mud, loose leaves, with a deep depression on the sloping ground edge…. Depression scuff slide witness mark, heavy across the plate leading to a narrow score to the leading edge and outrigger’s final foot position.”

[25]This is well illustrated in the inspector’s photographs DC/21 and DS/23. The position and nature of the “deep depression on the sloping ground edge” is strongly suggestive that it was made by the depression of that edge of the plate as the outrigger foot slid off the plate and it is relevant to note that in their joint statement the parties’ experts, Mr Cotterill for the Claimant, and Mr Colquhoun for the Defendant, agreed that:

“The HSE did not measure the angles in the opposite horizontal axis (90º) to the slope and their only measurements were made after the MEWP had toppled, bringing all its weight to bear on one side of the spreader plates. The angles measured by the HSE were not necessarily representative of the initiallevels at which the Claimant set the spreader plates and can only be considered indicative.”

[26]The inspector also found scuff slide marks on at least two of the three other outrigger plates. The parties experts, further agreed: “On the balance of probabilities, we consider that the MEWP became unstable and toppled as one or more of the outrigger feet slipped off the edge of the spreader plates into the soft ground”.

[27]In the course of the evidence I explored with the expert witnesses the possibilities that the slipping of the outrigger feet on the plates and, in particular that of outrigger 3, was a consequence of, rather than the cause of, the toppling of the platform. Whilst the experts could not wholly exclude that possibility, it was clear to me that they both thought that the probability was, as already noted, that it was the slipping that preceded the toppling rather than the other way about and I proceed on that basis of fact.

[28]Further, the parties experts agreed that the movement of the outrigger foot on the pad would have been a gradual process rather than one continual slip. They were in agreement that if the basket was overloaded the safety systems on the platform should have sensed that, sounded an alarm and the platform’s movement should have ceased systems should have ceased to operate.

[29]Mr Colquhoun said as part of his opinion:

“the additional loading and unloading of the basket when the tree sections were cut could have resulted in “bounce” on the chassis and the movement of the outriggers across the spreader plates down the slope without activating the load sensing system.”

[30]In similar vein, Mr Cotterill gave as his opinion that:

“the concept of relying on a smooth and slippery hard plastic spreader plate onto which a metal foot will be placed and expecting it not to move when subjected to continual dynamic lateral force during normal use, is fundamentally flawed.”

[31]I note that in Research Report 123 “Use and effectiveness of mobile elevating work platforms (MEWPS) for tree work” prepared by Forest Research for the Health and Safety Executive 2003, the Executive note, in particular, the following:

“Terrain limitations…some MEWPS, specifically those fitted with outriggers, are capable of working on 30% to 40% slopes. However, considerations such as firmness of the ground and potential for slippage due to surface type and weather need to be taken into consideration. Stability Certain types of MEWP have manual or hydraulically operated outriggers. Some machines are fitted with safety devices that will not allow operation of the machine until the MERP is on a level base. Vehicle mounted MEWPs can be fitted with stabilisers to aid stability. Suitability of stabilisers in respect of ground firmness should be assessed. Where necessary suitable bearers will need to be placed under stabilisers to maintain stability.”

Stability

[32]In their joint statement the parties’ experts agreed that:

“…in this case, had the spreader plates been secured to the MEWP feet, the MEWP could not have slid off the spreader plates and the accident would not have occurred.”

[33]It is relevant to set out the history of post accident inspection of the platform, the findings at such inspections, and events leading up to its final disposal.

[34]The HSE inspector, and Mr Caves of Promax inspected the platform between 17 and 18 December 2010, Mr Schofield having made a direction that the platform should be left undisturbed. That direction was lifted on 6 January 2011. On 24 March 2011, solicitors acting for the Claimant wrote a letter of claim to the Defendant but made no request to inspect the platform or for an assurance that the platform would be preserved.

[35]Thereafter, there was correspondence between the parties and the Claimant was supplied with copies of reports on the platform prepared by the HSE and Promax. In short, both those reports asserted that there were no pre-accident defects in the platform. It was not until November 2012 that the Claimant’s solicitors sought from the Defendant’s solicitors assurances that the platform would be preserved for the duration of the case and sought facilities for its inspection. The Defendant’s solicitors replied to the Claimant’s solicitors request in early December that the platform had been disposed of, it being the evidence of the Defendant that he disposed of it about the first week of September 2012. As a result, inspection of, and testing upon, the platform that might have been of assistance in determining the causes of this accident could not be carried out by either of the parties’ experts.

[36]As to the design and condition of the platform the parties’ engineers agreed in their joint statement:

“It is not possible to make a machine “foolproof”, but machines should have as many passive safety features (i.e. those operating without input or control from the operator) as possible such that, where possible, inadvertent errors made by operators do not have catastrophic consequences.”

[37]The HSE inspector sought to carry out tests on the platform’s safety function features. He reported on these tests as follows:

“I observed that with the MEWP in the outrigged and level condition, when the on – board safety systems detected machine instability, the control panels displayed associated warning lights with an audible alarm and only permitted safe machine operating functions i.e. an outrigger leg “lifted” (simulated by tripping a foot limit switch), only telescopic boom retract or raise, pantograph boom down, slew rotation left or right functions were allowed.”

[38]However, the parties’ experts, agree that the report of the HSE inspector is deficient in that not all of the relevant systems were tested by the HSE inspector. In their joint statement they noted:

“…the HSE probably tested the alarm system and restrictions to the operating envelope on the MEWP only when the alarm was triggered by an outrigger footswitch. This is a secondary system designed to sense if the ground has moved or sunk under the outrigger feet and would be unlikely to have operated until such time as the MEWP was already toppling. In order to fully functionally test the ‘moment sensing system’ of the MEWP, it would be necessary to lift the boom of the MEWP and place the basket outside the safe working envelope and/or overload the basket. The boom of the MEWP was bent in the accident, which rendered this test impractical. Therefore, we agree the HSE would have been unable to simply test the functionality of the ‘moment sensing system’ of the MEWP. There is no mention within the HSE report of them loading the basket with test weights or otherwise compressing the load cell in the MEWP basket and Mr Caves of Promax….says they did not test the ‘load sensing system.’ Therefore, due to the damage sustained by the MEWP in the accident, the HSE would not be able to simply test the ‘load sensing system’ and it is not known if the ‘load sensing system on the MEWP worked or not. The moment sensing system and load sensing system were the two most important systems upon which safe operation of the MEWP depended. Therefore the HSE conclusion that the MEWP systems were tested and working correctly appears to be based on incomplete information.”

[39]I will set out the essentials of the HSE inspector’s conclusions from his report:

“the area chosen to position the MEWP outrigger no 3 foot bearing plate was significantly close to the downwards sloping ground and was less than the IPAF recommended safe distance to hazard… From my recorded bearing plate surface angular measurements, the plates had been positioned on significantly sloping surfaces. Outrigger 1 & 3 bearing pad surface had slopes of -4.8 and -4.1 respectively. Safe working practice within the industry recommends that all outrigger bearing plate surfaces are flat and level. In my opinion, the bearing plate slopes were excessive and beyond a reasonably practicable and achievable safe working level e.g. a concrete floor drainage slope level of 1 in 40 or 1.4… I am of the opinion that poor site planning and machine set up with excessive outrigger bearing pads sloping surfaces, at fully elevated and extended with operator applied cageloads, with cage on the downhill side of the slope, resulted in outrigger No.3 to move and slide off its bearing plate causing the MEWP to become unstable and tip over. The shortcomings of the machine set up and use seem indicative of poor planning and insufficient training and/or supervision.”

[40]It is relevant to note at this point that the HSE inspector was not called by either party to give evidence. Whilst I have understood that the parties accept the photographs of and measurements taken by the inspector at the scene after the accident, his findings as to the condition of the platform before the accident based on his post accident inspection and his opinion as to the causes of the accident are not agreed. In those circumstances that opinion can only be part of the history in the case.

[41]As a result of research on the internet the Claimant made contact with another tree surgeon, Mr Lofthouse, who is a qualified engineer and who worked as an Army Royal Electrical and Mechanical Engineer’s mechanic for some six years. In 2005, he purchased a RQG18 ‘Spider’ platform for his business and some months later he was involved in a similar accident to that of the Claimant when his platform toppled over, he says, without any alarms being sounded or the platform cutting out. Mr Lofthouse carried out a series of tests on his platform after his accident.

THE RESPECTIVE CASES OF THE PARTIES

[42]I turn to consider the respective cases of the parties.

[43]The Claimant alleges that the accident occurred because the Defendant was in breach of the implied term of the hire agreement that the platform was of satisfactory quality and reasonably fit for the purpose for which it was hired. Alternatively, he claims that the accident was caused by the Defendant’s negligence in failing properly to instruct him as to how to set up the platform. The Claimant’s principal case is that the cause of the accident was the slippage of the foot of outrigger 3 because it was not fixed to its supporting plate, as it was subjected to lateral forces in the course of normal and proper use of the platform. It is accepted by the Claimant’ advisers that plates of the kind provided by the Defendant for use with this platform are suitable for use on flat hard surfaces, with a more rigid type of platform than a ‘Spider’. However, it is contended that for this platform, specifically designed for use on rough or soft terrain and for use on slopes and narrow or uneven surfaces the plates provided were not suitable. For the feet of the outriggers on this platform the Defendant should have supplied non-slip plates that fitted around the feet or were recessed so that when lateral pressure was applied to the outriggers their feet would not be in danger of slipping off the plates. Such are, and were, readily available and the provision of such, would have prevented this accident.

[44]The Claimant also relies on the fact that as outrigger number 3 slid towards the edge of the plate on which it stood, the alarms and cut out, that should have been operated by the sensors installed on the platform, did not, as he asserts, operate.

[45]Finally, the Claimant asserts that, insofar as it may be established that the accident was caused by reason of a failure of the Claimant properly to set up the platform, the Defendant was himself negligent in failing properly to instruct the Defendant in the use of the platform.

[46]The Defendant denies that the platform was defective and denies any breach of the implied conditions as to satisfactory quality and fitness for purpose. He contends that the platform toppled over because the Claimant failed to position it on stable, level ground, contrary to instructions that the Defendant alleges he had given to the Claimant, when the platform was delivered to site, and contrary to the instructions set out in the manual provided with the platform. In moving the platform to the position from which it fell on the afternoon of 30 November the Claimant ignored clear advice from him against using the platform from that position. Further, the Claimant compounded that error by leaving his employees to set the platform back in that position, in the Claimant’s absence, on the morning of the accident. Those employees had not been trained and/or assessed as competent in the operation of such platforms and their collective and individual knowledge and experience of setting up and operating this type of platform was derived only from what they had learned in the previous 24 hours.

THE LAW

[47]The law applicable to this case is uncontroversial.

[48]The contract of hire was an oral contract for the hire of the platform. The Defendant did not provide the Claimant with a copy of his “Model Conditions” at the time the contract was made and therefore, absent a previous course of dealing, it is accepted those standard conditions were not incorporated into the contract.

[49]Section 9(2) of the Supply of Goods & Services Act 1982 provides that in a bailment contract such as this, there is an implied condition that goods supplied under the contract are of satisfactory quality. Goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the consideration and all the relevant circumstances.

[50]That is the only implied term relevant to the facts of this case. Whilst the same Act implies a term of fitness for purpose, on the facts of this case, implication of such a term does not assist the Claimant, additionally to the implied term as to satisfactory quality.

[51]The case in negligence raises no issues of law that require particular comment. While section 1 of the Law Reform (Contributory Negligence) Act 1945 does not in general apply to claims for breach of contract so as to allow a court to reduce any award of damages on the ground of contributory negligence, it does apply to claims based on the breach of a contractual obligation to take reasonable care as long as this is concurrent with liability for breach of a duty of care in tort. (See H. Parsons(Livestock)Ltd v Uttley Ingham & Co Ltd

[1978] QB 791

[52]In the course of the case, I raised the question of the significance, if any, of the fact that the platform was destroyed by the Defendant before the Claimant had, for the purposes of this action sought inspection of the platform. I am indebted to Counsel for supplying me, following conclusion of the oral argument, with helpful written submissions on the point.

[53]The approach to be taken by a Court to such a circumstance was considered by the Court of Appeal in Malhotra v Dhawan (C of A – 26.02.

1997 EWCA Civ.1096

). That case involved the destruction of files in a dispute between accountants. At first instance, Rattee J reviewed the cases in which this issue had been considered. He concluded:

“The difficulties in ascertaining the truth about items in dispute are, of course, greatly increased by the intolerable length of time it has taken for these proceedings to come to trial. They are made even greater by the fact that unfortunately the Defendant has destroyed the files kept for the purpose of his accountancy practice in respect of some of the former clients’ work for whom is now in dispute in these proceedings (sic). According to the Defendant, whose evidence on this point I accept, when he moved offices in March 1984 he destroyed the files relating to the former clients for whom he no longer acted. He said he did not appreciate that they might be relevant to these proceedings then pending. It is clearly very regrettable that he did destroy these files although I am not persuaded that he did so for the deliberate purpose of destroying evidence relevant to the Plaintiff’s claim. I accept the submission made by counsel for the Plaintiff that in such a situation, where one party is responsible for the unavailability of relevant evidence, the Court should not be slow to make such inferences or assumptions against that party’s interests as are consistent with other available evidence.”

[54]The Court of Appeal approved Rattee J’s dicta and said as follows:

“First, if it is found that the destruction of the evidence was carried out deliberately so to as hinder the proof of the Plaintiff’s claim, then such finding will obviously reflect on the credibility of the destroyer. In such circumstances it would enable the Court to disregard the evidence of the destroyer in the application of the principle. But that is not this case. Second, if the Court has difficulty in deciding which party’s evidence to accept, then it would be legitimate to resolve that doubt by the application of the presumption. But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth, I do not accept that theapplication of the presumption can require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful.”

[55]It was an unfortunate circumstance that the platform was destroyed before either of the parties’ experts was able to inspect or test it and therefore were unable to give an entirely unqualified opinion on the functionality of the moment sensing system of the platform.

[56]The Claimant’s advisers assert that the Defendant and his representatives acted negligently and irresponsibly in destroying a machine which had been the subject of a letter of claim dated the 24 March 2011, in respect of which at one stage a loss adjuster had requested that the machine be not disposed of in the event that underwriters wished to have it independently examined, and in respect of which the Defendant’s solicitor should have advised him that the platform should not be destroyed until any litigation in respect of which, had ended.

[57]The Defendant accepts that it was unfortunate and regrettable that the platform was disposed of but argues that the Defendant has not and does not seek to secure any advantage from the disposal of the platform but that equally the circumstance of the disposal should not form the basis for the drawing of inferences adverse to the Defendant’s case.

[58]I consider that the Court can and should resolve the issues in this case without the need to resort to any presumption or benevolent inference regarding the issues in hand. On the facts before me, I am reluctant to attribute blame between the parties as to how that circumstance arose and even less to suggest that the Defendant’s credibility is in some way to be impugned by drawing an adverse inference from the fact that he destroyed or authorised the destruction of the platform.

[59]In this case the Claimant must, if he can, prove his case on a balance of probabilities in the usual way and I will approach my assessment of the evidence in this case without drawing any adverse inferences against the Defendant from the fact that he destroyed or authorised the destruction of the platform.

THE EVIDENCE

[60]I turn now to consider the evidence as to the contested issues at the heart of this case.

[61]There is no dispute but that this platform was designed to be able to be operated from ground that sloped, subject to the important proviso that each of the feet of the outriggers must be placed on plates sited on level, firm and stable ground. It was the Defendant’s evidence that this requirement was spelt out to the Claimant when he visited the Defendant’s yard and was repeated the next day when the Defendant delivered the platform and assisted the Claimant in setting it up. That was not contested by the Claimant.

[62]However, there was disagreement as to the content of another aspect of the on-site discussion. It is the Defendant’s case that the Claimant told him that he wanted to set the platform up close to the copper beech tree, at the position to which the Claimant moved the platform on the first day that the platform was at the Rectory. The Defendant gave very specific evidence that he advised the Claimant against setting up the platform in this position as it was his view that the ground at that position was unsuitable and difficult. He thought that due to recent ground works, including the laying of a path, the ground was likely to be unstable.

[63]The Claimant’s evidence about this was different. He said that because of the confined space at the site there were really only two possible positions for the platform. His evidence was that he explained to the Defendant that he would need to move the platform to the second of those positions to reach certain branches to which he needed access. He showed the Defendant the position to which he intended to move the platform. The Defendant looked at the location. The only advice the Defendant gave about the location was that the Claimant should cut down a shrub that would make access easier. He did not say anything to the Claimant about that positioning being dangerous. The Claimant said that he would not have set up the platform in a position against which he had been advised by the Defendant.

[64]The Defendant denied that account. I enquired as to when the Defendant was first recorded as having asserted the discussion at the site contended for and was told that this was not a matter that was raised in pre-action correspondence. However, it was clearly referred to in the Defence as follows: “It is admitted that, on 30 November 2010, the Defendant delivered the Spider to the site and the Claimant told him where he intended to set it up….the Defendant advised him that the position originally indicated was difficult and unsuitable, and suggested an alternative position. He advised the Claimant that it was essential that all the outrigger pads were placed on firm, level and stable ground which meant that, if the Spider was to be set up on a slope, it was necessary to dig into the slope to create a firm, level and stable footing for the outrigger pad. The Defendant satisfied himself that the Claimant understood the necessity of ensuring that all outriggers were positioned on a firm, level and stable footing before operating the Spider. It is denied that the Claimant informed the Defendant that he intended to move the Spider to a new operating position the following day. The Defendant and Claimant did discuss another possible set up position as aforesaid, but the Claimant did not inform the Defendant that he intended to set it up in the position the Defendant had indicated was unsuitable (though not unsafe had the necessary precautions been undertaken i.e. ensuring that all outriggers were positioned on firm, level and stable ground).

[65]It was not suggested to the Defendant that this allegation was made as a result of a late and false memory about it. Interestingly, the last part of the Defendant’s pleaded case on this aspect of the matter, as just quoted, is not inconsistent with the Claimant’s account that the Defendant did not suggest to him that the positioning of the platform in the proposed second location would be dangerous.

[66]The Claimant told me that he had worked on ‘Cherry picker’ platforms since he was 17 and had never had a safety issue before the material accident. He said that on the first day he worked from the machine without incident both in the first and second position earlier described. The only issue that he had was that the emergency stop button on the machine was over sensitive and kept operating even if a person just brushed past it and the engine of the platform would then cut out. The Claimant therefore put tape over the button sufficiently to stop it going off but not so much that the button could not be used to stop the engine.

[67]He said that he decided where the bearing plates for the outrigger feet should be placed when the platform was set up in the second position and he was directly involved in the setting up of the machine in that position and checking that it was set up correctly. He said the ground was firm where the platform was set up.

[68]He told me that he estimated the combined weight of himself, Mr Milbourn, and the chainsaw they were using at the time of the accident when they were in the basket was no more than 160 kilos. Having completed the pruning over the roof of the Rectory he needed to prune on the side of the tree over the slope. He had been working at or near the maximum operating height of the ‘Spider’. The pantograph boom was fully extended. As he began to shorten the telescopic boom and lower the assembly he felt the platform judder and then begin to topple. It was his view, in line with that of the parties’ experts that the topple was caused by the platform slipping off the bearing plates as it became unstable. He heard no warning sounded or was conscious of any cut out operating. The fact that the emergency button was taped off he considered was not relevant to the accident.

[69]Mr Milbourn gave evidence. He said that he weighed about 12 ½ - 13 stone. He was as he put it, ‘pretty sure’ that in the course of the Claimant’s on-site discussion with the Defendant, the whole area where the platform was going to be set up was discussed. He remembered a bush being cut down to accommodate the platform at its second location. He told me that he knew that to achieve stability, setting the platform up correctly, was important. The correct pressure had to be transmitted to the outriggers otherwise the platform would not work as it would be unsafe to use. He set the machine up on the second day with Mr Greatorex. He carried out the necessary checks on the platform including checking the ground. He said that he would not operate a machine as to the set up of which he was uncomfortable. He was not wearing ear defenders at the time of the accident and did not hear any alarm sounded on the platform before it toppled over.

[70]I then heard from Mr Hopkinson. He told me that he also took part in setting the platform up on the second day with Mr Greatorex. He remembered checking the sensor dials on the outriggers in the course of the setting up. He thought that the second location of the platform was more level than the first. He heard no alarm preceding the topple of the platform but was wearing ear defenders at the time.

[71]The evidence of Mr Greatorex was much in line with that of Mr Hopkinson. He confirmed that he and Mr Hopkinson set up the platform on the second day in the same position as it had been in when work finished on the preceding day. The outriggers were set up as before and he checked that the pressures on each outrigger were correct by use of the dials on the outriggers. He said that two of the outrigger plates were placed on level ground and that a level position had to be dug out for the other two plates.

[72]I also heard from Mr Lofthouse. He told me that when his accident occurred he had not overridden any of the safety features of his platform. He had an IPAD certificate for the use of a platform such as a ‘Spider.’ His evidence was to the effect that he believed that he had discovered a defect in the sensor system for this ‘Spider’ platform possibly attributable to some kind of valve fault, that allowed the platform to be operated outside its intended safe working parameter. He drew this conclusion from a series of tests that he carried out on his platform after his accident, and which he recorded on a DVD film, that I have seen. He placed a weight in the basket and carried out manoeuvres of the platform that he knew would make his platform unstable. As he put it, ‘in the vast number of such manoeuvres’ the platform cut out as it was supposed to do. However, on a number of occasions, the sensors failed to identify the risk, and allowed the machine to carry out a dangerous manoeuvre. The problem seemed to occur when the boom was fully extended and the basket was brought down vertically. He asserted that his tests show that in a situation similar to that experienced by him and the Claimant the sensors on this ‘Spider’ could fail to operate. He clearly felt that his tests and experiments demonstrated a fault within this type of platform, not just his own. He felt so strongly about this that he contacted the HSE with a view to them investigating, but as, in his accident, no catastrophic injury had occurred they were unable to help. Mr Caves of Promax came to the site of his accident after the accident and discussed it with him; he put the accident down to operator error.

[73]The experts commented upon Mr Lofthouse’s evidence. Mr Cotterill found Mr Lofthouse’s evidence “compelling” and accepted that his tests were representative of normal working conditions and that Mr. Lofthouse had complied with the advice given in the manual. Mr Colquhoun considered Mr Lofthouse’s evidence as being incomplete and unverified and considered that the accuracy and validity of his findings could not be relied upon.

[74]I accept that Mr Lofthouse’s evidence has not been subject to independent and scientific verification. In these circumstances, Mr Lofthouse’s evidence about his platform is little more than anecdotal. The most that I consider that can legitimately be said about Mr Lofthouse’s evidence is that it possibly supports the case that the circumstances of the Claimant’s accident in which this platform, on his evidence toppled over without the alarms sounding and the cut out operating, may not have been unique. With all due respect to Mr Lofthouse, his evidence does not really help me in reaching my conclusions in this case.

[75]I heard from the Defendant himself. He told me that he had been in the tree surgery business for some 20 years. He had never had any problem with the ‘Spider’ before the Claimant’s accident. In his experience, if a supporting plate moved when pressure was applied through the outrigger, a warning light came on and the platform stopped working. He said that fast jerky movements might cause an outrigger to judder on a plate. He said that the Claimant did not inform him that he wanted to use the platform on a slope. He explained that he bought the plates for the outriggers because he thought it was safer to use plates under the outrigger feet. He was satisfied with the competence of the Claimant on his demonstration to him.

[76]His evidence was that he advised the Claimant not to set up the ‘Spider’ at the location from which it toppled because he thought the ground unsuitable and difficult because of the slope, and what he saw as recent ground works including the laying of a path which made him think the ground was likely to be unstable. It looked as though it had been recently excavated and the bank was not compacted Although he was satisfied that the Claimant and his employees set up the platform correctly in the first position when he was on site, from what he saw after the accident, he deduced that the platform had not been set up on level stable ground in its second position. He accepted in cross-examination that, with hindsight the platform should have been provided with fixed bearing plates for the feet of the outriggers.

[77]Mr Caves of Promax gave evidence. He confirmed that the ‘Spider’ could be used on a slope so long as plates for the outrigger feet were used and were levelled. He told me that he helped with the setting up of the ‘Spider’ for the tests performed by the HSE inspector. He said that during the inspection of the platform with the HSE he was able to demonstrate that all of the sensors and safety mechanisms that they could test were working properly and all the systems were checked except the basket overload. He was certain that there was no problem or failing in the platform that could have caused the accident. He concluded from the fact that the platform toppled over that it could not have been properly set up.

[78]Having seen the photographs of the location from which the platform fell he said that the platform was in his words ‘designed to work on much more challenging terrain’. He accepted that the only logical explanation for the accident was that one of the outriggers had slipped off its bearing plate which he said could not have been laid on firm level ground. He accepted that a comparison of the extent to which the booms of the platform were extended to the boom positions of the load charts for the platform demonstrate that it was probably within its safe working envelope when it toppled over. He said that once a platform was set up, if there is a bit of settlement under a bearing plate an alarm would sound and the only movement permitted would be to bring the basket back to a safer position. However, if there was a catastrophic failure of the surface under a bearing plate there would be not time for an alarm to sound and no opportunity for the safety systems to prevent an accident. He explained Mr Lofthouse’s accident as his having been a result of the operator swinging an extended boom too fast downwards, with a fully loaded basket. He thought that accident was caused by operator error and was not due to any inherent fault with the platform. He accepted that if the bearing plates were placed on the ground slightly off the horizontal the platform should still operate safely; he said it was good practice to place the plates slightly sloping into the incline.

[79]He agreed with the conclusion of the HSE inspector that the platform appeared to be functioning correctly at the time of the accident and he was not able to identify any defects in it. A particular feature of his evidence, that was of some surprise to me, was his readiness to accept that, in ordinary use, the feet of the outriggers of a ‘Spider’ could move considerably on and about a bearing plate, if it was not fixed to such a plate, and that such movement could occur without the platform sensors causing it to cease to operate or for the alarms to be operated. As he put it, ‘in a perfectly satisfactory set up because of the leg configuration the feet can walk about.” He said that it was not possible to attach plates to the feet of the outriggers and he did not like such plates to be recessed.

[80]I turn to the expert evidence called by the parties. Whilst there was a good deal of agreement between them as recorded in the note prepared by them after their joint meeting, they disagreed on crucial aspects of the case.

[81]Mr Cotterill for the Claimant has since at least 1990, worked with a variety of well regarded engineering companies or organisations in which ‘Spider’ platforms have fallen within his areas of duty and responsibility. He disagreed with the conclusions of the HSE inspector. I will quote material passages from his report and contribution to the experts’ joint statement: ‘According to photographs DS/02 of the HSE report, both booms were extended but comparison of the boom positions with the available “load charts” indicates that the boom, as seen after it toppled, was probably within the safe working envelope. Mr Caves says that the MEWP was likely within its safe operating envelope. The moment “sensing system should have prevented the MEWP going outside the safe working envelope in any case. There is no evidence that the MEWP was overloaded and excessive operator cage loads should have been picked up by the “load sensing system” in any case.’ 1. He noted: ‘The spreader plates supplied probably had a reduced coefficient of friction due to operating circumstances and when placed under the steel feet of the outriggers were, in my opinion, inappropriate for this type of MEWP because the feet could not be mechanically attached to the spreader plates to prevent slippage and relied entirely on friction between the two surfaces.’ 2. He concluded in the joint statement: “It is Mr Cotterill’s opinion that the Claimant set up the MEWP according to instructions from the Defendant and the owner’s manual. The Defendant satisfied himself that the Claimant and his team were competent. Due to probable flaws in the safety system and the inadequate load charts it is possible that the Claimant could have inadvertently and unknowingly overloaded the MEWP and/or operated the MEWP outside its safe working envelope thus greatly increasing the loading and unloading of the outrigger legs, such that they moved and ultimately slipped off the spreader plates and the MEWP toppled. In Mr Cotterill’s opinion, the spreader plates were not compatible with this type of MEWP. Considering the hierarchy of risk management, levelling the spreader plates would reduce the risk during normal use, but securing the feet to the spreader plates represents common sense that would eliminate the risk of slippage from a spreader plate when using any MEWP on rough terrain. This simple action is already applied with some other MEWPs and with many other types of equipment that have to operate on uneven terrain and would have prevented the accident.”

[82]In the course of his cross-examination he said that it would not have been difficult to come up with a plate that could be secured to the feet of the platform’s outriders.

[83]I turn to the evidence of Mr Colquhoun. He agreed with Mr. Schofield’s analysis as to the cause of this accident and disputed Mr. Cotterill’s analysis.

[84]In his report, in answer to the question:

“do you consider the absence of the means to ‘chock’ the outriggers to the spreading plates rendered the MEWP unsafe for use and hire?” he said: “If the MEWP is being used for a purpose for which it is designed, the chassis of the MEWP on a level (horizontal) plane and the four spreader plates are also level then there should be no requirement for the outriggers to be attached to or chocked on the spreader plates. The MEWP is designed to operate on hard surfaces (i.e. tarmac and concrete) without the use of spreader plates providing the points of contact are level. The spreader plates are not an integral component of the |MEWP but an additional item of equipment.”

[85]In the joint statement he noted:

“... the Claimant, or one of his employees (if suitably qualified and experienced), would be expected to have completed a risk assessment on the deployment of the MEWP. If a risk assessment had highlighted any specific risk with regard to the spreader plates, then it should have been managed in such a way as to reduce the possible likelihood of an incident and the consequences. As far as Mr Colquhoun is aware, no such risk assessment was carried out by the Claimant or his employees.”

[86]He concluded in the joint statement:

“It is the opinion of Mr Colquhoun that the accident was more likely caused by the incorrect set-up of the MEWP by inexperienced employees of the Claimant and the subsequent absence of pre-use checks by the Claimant. It appears that there was no designated ‘grounds man’ on site to monitor the MEWP and it also appears that neither Mr Hopkinson nor Mr Greatorex were observing the operation of the MEWP. The incorrect set-up most likely resulted in the MEWP moving during operation and one or more outrigger feet slipping off the spreader plates, de-stabilising the MEWP and resulting in it eventually toppling.”

[87]I preferred the evidence of Mr Cotterill to that of Mr Colquhoun. It was clear to me from the cross-examination of Mr Colquhoun that he had considerably less experience of platforms of this kind than Mr Cotterill. In my judgment in his consideration of this case Mr Colquhoun failed to take into account the evidence that in proper use, the feet of a ‘Spider’ platform were liable, as attested to by Mr Caves to be subjected to lateral forces that would tend to move those feet off a bearing plate that was not fixed to the feet.

CONCLUSIONS

[88]I was generally impressed with the Claimant. It was clear from his evidence that he was an experienced arborist who was generally careful for the safety of himself and his men. Whilst this was the first time he had hired a ‘Spider’ platform he was knowledgeable by his training and experience of the principles behind their operation. Likewise, I was generally impressed by his three employees who gave evidence. Whilst they did not have experience of the platform in question before the day before the accident, I accept their evidence that when they set up the machine on the day of the accident they followed the procedures used and set the machine up in essentially the same way and position as the day before.

[89]The questions to be answered in this judgment on liability are, did the Defendant advise the Claimant against setting up the platform in the position from which it toppled, was the topple caused by reason of some unsuitability of that position as a location for the platform, and, if some unsuitability of that location was not the cause of the topple of the platform what was the cause? Was the accident caused by a lack of satisfactory quality in the equipment supplied by the Defendant? Was the cause of the accident as the result of negligence of the Defendant and, if so, was the Claimant himself contributorily negligent?

[90]I am satisfied that the platform was not set up on the day of the accident in a position that the Defendant had advised the Claimant to be unsuitable. I accept that there was some discussion between the Claimant and the Defendant at the site about two possible locations for the platform. I am satisfied that such discussion did not amount to a prohibition by the Defendant to the Claimant against placing the platform in the second location. I note that finding is in line with the unamended final sentence of the passage from the Defendant’s defence noted above.

[91]In the context of the setting up of this platform I do not consider it helpful to define the words “suitable” and “unsuitable” in absolute terms. The suitability of a location was I consider a matter of degree, there being a point at which difficulties that might be encountered in a particular position would be such that the position would be unsafe. That the second position was not unsuitable for the positioning of a platform of suitable quality was clear on the evidence before me. I refer, in particular to the fact that upon a consideration of the photographs, Mr Caves gave evidence to the effect that the ground appeared suitable for the platform, and the evidence that the movement of the outrigger foot on plate 3 was as a result of the operation of the platform, not the collapse of the plate into soft ground as evidenced by the HSE photographs.

[92]In my judgment, the cause of this accident was the slippage of the foot of outrigger 3 upon its bearing plate. That slippage occurred because the plate was not of suitable quality for the application for which the plate was used. I accept that the platform was supplied with properly sourced proprietary plates and that it is not uncommon for plates to be supplied separately from such platforms. I accept further that it is not unusual for outriggers of platforms to stand freely on an individual spreader plate, in the case of for example a ‘Cherry picker’ platform set up on level ground. I accept that the HSE Inspector made no criticisms of the plates themselves or the fact they were not attached to the platform and that he did not criticise the use of these plates for this job or identify a foreseeable risk that the outriggers might slide off the spreader plates if the platform was set up correctly and used normally. However, as already noted, the inspector’s report is part of the history of the case rather than evidence in the case save where its contents are agreed.

[93]I accept Mr Cotterill’s criticism of the plates provided. Whilst such plates are of suitable quality for a ‘Cherry picker’ platform, they were not suitable for a ‘Spider’ platform. This was a platform specifically designed for use on rough or soft terrain and on slopes and narrow or uneven surfaces in which applications it was liable to be subjected to lateral forces that could cause a foot, if unrestrained by its bearing plate, to move considerably, as evidenced by Mr Caves. I consider, as it appears subsequently the manufacturer of this machine also considered, that this platform should have been provided with bearing plates which were attached to the outrigger feet or so shaped or recessed that the feet were prevented from slipping off the plate.

[94]As the parties’ experts agreed, had the spreader plates been secured to the platform it could not have slid off the spreader plates and the accident would not have occurred.

[95]I am satisfied on the evidence that I have heard that the platform was set up correctly on the day of the accident. The day before, it was set up correctly under the supervision of the Defendant. I am satisfied that in the second location, the Claimant and his employees followed the Defendant’s instructions when setting up the platform. After the accident the bearing plates for the outriggers were found by the HSE inspector not to be perfectly level. However, the degrees of deviation of the plates from being precisely level was slight, that of the most material, i.e. that under outrigger 3 sloping being but 4.8º downwards. Further it is important to note that that slope was measured by the HSE inspector after the outrigger foot had slipped down the plate, which movement could have been expected to have increased the downwards slope of the plate from that before the slippage. The evidence was that it was acceptable to level the plates by eye, a method that would be unlikely to lead to a perfect levelling of the plates.

[96]The engineering experts have agreed that there were deficiencies in the HSE report, in particular, the failure of the HSE to test all the safety systems in the machine which goes to the issue as whether the systems, and in particular, the moment sensing system failed. Based on the evidence of the Claimant himself and that of Mr Milbourn there must have been a failure of the moment sensing system and perhaps the micro switches in the feet of the machine immediately before the topple occurred.

[97]In my judgment the platform supplied to the Claimant by the Defendant was not of satisfactory quality by reason of the fact that it was provided with bearing plates from which in normal operation a foot or feet could stray so destabilising the platform so that it could, and did topple over. I am also satisfied that this platform toppled over without any warning device or cut out operating, whether because of a particular fault that had developed in this particular platform, or because the combination of the particular way this topple was initiated and the design of the platform resulted in the warning device and cut out not operating before the topple was initiated.

[98]As a result of these findings the claimant’s claim succeeds in contract. I am not satisfied on the evidence before me that the Defendant has a separate liability to the Claimant in negligence or that the Claimant was himself negligent in any way. In any event, no question of contributory negligence arises in the absence of any negligence in the Defendant. There will be judgment for the Claimant with the quantum of damages to be assessed.