“63. This was a very unfortunate accident, the precise cause of which is not known, but I am satisfied that it was not caused by any breach of duty by the Defendant and that there were no reasonably practicable steps which should have been taken by the Defendant to prevent it or to mitigate its consequences. 64. I therefore dismiss the claim.”
“3.05 Access to Vehicle Load Beds: There is significant potential for drivers and their mates to fall from the load bed when accessing, working on or leaving the load bed itself. The height of the load bed from the ground is significant and a fall from this height has the ability to cause lifethreatening injuries. When accessing the load bed all staff are to ensure that they access the load bed via a recognised method and not climb up via the vehicle’s tyres or sidebars.”
“2. … On arrival at the site the delivery van pulled up in a site loading bay (the street was blocked off from the public). The rear of the van has a shuttered style rear door with a tail lift which when the shutter is raised is opened, folds out and can be raised or lowered so as to lift items into and out of the van. 3. The Claimant and Mr Urbaniak got out of the driver’s compartment of the van and opened the rear shutter. The Claimant lowered the tail lift and both of them went up into the van compartment, the Claimant operating the tail lift using the internal switch sited just inside the rear of the nearside of the door. There was another switch outside the van. 4. The van was loaded with bathroom fittings (such as baths), and the Claimant and driver went into the rear of the van using the tail lift. Once inside the rear compartment the Claimant and the driver loaded the first pallet containing bathroom items onto the tail lift by using a pallet pump truck (“the ppt”) which is carried inside the lorry but is moved onto the tail lift with the pallet. Everything carried in the lorry had to be moved with the ppt. This was the first of several pallets to be unloaded at the site. 5. The pallet was then lowered to the ground and taken into the site to be unloaded from the ppt which was then to be returned to the rear of the van and raised back up to the loading bay of the van for the next item. Mr Urbaniak says in his statement that there were some straps lying around on the floor of the van and that he should hang them up so as not to be in the way. 6. The Claimant was standing inside the van near the rear door operating the inside control of the tail lift. While the driver and some workmen from the site took the pallet on the ppt into the site the Claimant remained on the van. 7. No-one who gave evidence actually witnessed the accident, but the evidence is that a very short time after the ppt had started to move into the site (accounts differ but it was between 2 metres and 20 to 30 feet). A loud bang was heard. When people looked round they saw the Claimant lying on the ground having fallen out of the back of the van. He hit his head on the ground and suffered a serious head injury. 8. As a result of his injuries the Claimant is unable to remember anything about the day of the accident and cannot tell the court how the accident happened. He remained in the back of the van solely to await the return of the ppt so that it could be raised up to the level of the van floor and loaded with another pallet. Mr Urbaniak’s evidence suggests that he had been asked to hang up some security straps and Mr Turnbull, a plumber working on the site, says that as he moved away pushing the ppt he saw the Claimant at the back of the van near the tail lift switch with his back towards him “doing something in the back of the truck but [I] could not see what exactly”. 9. The assumption that everyone has made during the trial is that the Claimant stepped backwards off the van and fell to the ground striking his head. This was a drop of about 1 metre, or waist height. There was no evidence of the actual height. Mr Urbaniak suggested in his statement that the Claimant had previously exhibited signs of “going out like a light” in the past – thereby suggesting that his fall might be explained by this. As Mr Urbaniak was not able to attend the trial (he is in Poland and although there was no formal evidence to explain his absence) it appeared that there was probably an innocent explanation. Nevertheless, the Claimant denies the allegation and absent Mr Urbaniak I cannot make any findings that this may have contributed or caused the fall. Mr Urbaniak also made allegations against the Claimant that he had told him things about his relationship with his family which he later found were made up. The Claimant denied this and said that he saw his family every week. There is therefore a doubt about Mr Urbaniak’s ability to give reliable evidence. 10. Equally, there is no evidence as to how the accident happened.”
“The driver’s mate, Lee was assisting and unloading a closed-in box wagon. The tail lift was down but I did not see who had lowered the tail lift. Lee was standing inside the vehicle in the main load area at the edge of the truck body. I saw him step backwards towards the street and I saw him fall. His legs were on the lowered tail lift. I could not see any obstruction or hazard on the lorry that would have caused him to fall or trip over. I did not hear Lee shout. Lee did not try to grab hold of anything to prevent himself falling.”
“Around 2,000 people fall from vehicles each year with many more being injured through being struck by moving vehicles. It is therefore essential that all delivery staff understand the safety issues that they can present to other road users, members of the public and to themselves when undertaking routine delivery operations.”
“6. Only push cages and pallets towards the rear of the vehicle – do not pull them into position on the tail lift. 7. Keep the tail lift raised when persons are working in the rear of the vehicle unless parked in a recognised loading bay. REMEMBER – DO NOT STAND ON, OR WORK CLOSE TO AN UNPROTECTED EDGE”
“Wholly routine operation, carried out using standard equipment and a method widespread (or even universal) for this type of task among delivery operatives in the UK.”
“Mr Restall: So, before the accident, you hadn’t actually sat down at some point, maybe with Ken Williams, and thought, we need to put together a safe way to do this with a series of steps for people. That hadn’t happened before had it? Mr Brooks: No.”
“24. There can be no doubt that, overall, the burden of proving that steps were not reasonably practicable is firmly on the employer. Nevertheless, in cases where it is not obvious what steps might be taken to reduce or eliminate the risk then it should be incumbent on the Claimant to identify those steps that he says should have been taken. This must at least be the case where the Defendant has demonstrated that it has considered what steps might have been taken. If, as in this case, the Claimant produces only at trial a list of steps which might have been taken, without any evidence about those steps, then it is impracticable, unreasonable and unfair for the Defendant to be criticised for not having evidence in relation to them. It cannot be right, in those circumstances, that the court must find in favour of the Claimant solely because the Claimant raises a possible measure, with no evidence to explain how it would have reduced the risk, and then submits that the Defendant cannot discharge the burden, having not covered it in its evidence.”
“36. I am not satisfied that the criticism of lack of planning or supervision has been made out. Mr Brooks’ evidence was not challenged on this point, the system being an industry standard. The risk of a fall and of injury was identified and steps were taken to reduce it.”
“41. Mr Restall’s submission that it was inadequate refers to the post-accident assessment and the further control introduced of raising the tail lift when someone was working inside the van bed. That, as I said earlier, is a hindsight judgment which is not, in my judgment, justified as a criticism of the pre-accident assessment.”
“46. I find that the Claimant was sufficiently trained to carry out this operation and was well aware of the risks of falling from the back of the lorry.”
“53. In my judgment, it would not have been proportionate to instruct employees carrying out delivery operations prior to the accident to raise the tail lift if someone was inside the van. There had been no incidents identifying the risk and the assessment identified the risk as ‘low’ if the controls were in place. The Claimant was waiting in the lorry for the pallets to return and if it had been raised, would have had to lower it again for that purpose. He was not carrying out any activity and could be expected to be aware of the edge of the lorry, next to which he was standing and which he had been looking at only moments before when the tail lift was lowered. … 54. I am therefore satisfied that there was no breach of duty under this head as it has not been proved that this step should have been taken to reduce risk, and, in the circumstances, it has been proved not reasonably practicable to take this measure, having regard to the degree of risk, proportionality and practicality.”
“There will be some cases in which it is open to, and arguably incumbent on, the Claimant to say what ought to be done by the Defendant and why. There will be others in which the event itself calls for explanation by the Defendant of why it was not reasonably practicable to have guarded against it. In both the kinds of case it will then be for the Defendant to show why it is not reasonably practicable to take the step-in question. In many cases the burden will shift as the evidence unfolds.”
“Where work is carried out at height every employer shall take suitable and sufficient measures to prevent, so far as reasonably practicable, any person falling a distance liable to cause personal injury.”
“Where the measures taken under paragraph (4) do not eliminate the risk of a fall occurring every employer shall – (i) So far as is reasonably practicable, provide sufficient work equipment to minimise – (a) the distance and consequences; or (b) Where it is not reasonably practicable to minimise the distance, the consequences of a fall.”
“(1) every employer shall ensure that work equipment is so constructed or adopted as to be suitable for the purpose for which it is used or provided. … (3) every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.”
“In the facts of this case where the dangerous machinery was exposed for only a few minutes as the only means of effecting necessary repairs in a part of the mine where it was unlikely that any workmen would be exposed to risk of contact with the machine other than the engineer engaged in the work of repair, I am unable to take the view that it was reasonably practicable by any means to avoid or prevent the breach of section 55. The time of non-protection is so short, and the time, trouble and expense of any other form of protection is so disproportionate that I think the defence is proved.”
“We are therefore left in ignorance as to the practicability or otherwise of the measures which, in the opinion expressed by the Inspector of Mines appointed by the National Union of Mineworkers, after 12 years’ experience of the investigation of fatal accidents, constitutes the only way to ensure security viz. artificially to support all roads in mines.”
“There is no evidence at all to show that it would not have been reasonably practicable to do this [i.e. take the measures in question], nor is there any evidence to show that it would not have been reasonably practicable to do it a month before the accident.”
“The construction placed by Lord Atkin on the words ‘reasonably practicable’ in Coltness Iron Co v Sharp, seems to me, with respect, right. ‘Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one side and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident.”
“… in my judgment there may well be precautions which it is ‘practicable’ but not ‘reasonably practicable’ to take, and I think that follows from the decision from the Court of Appeal in Edwards v National Coal Board. I agree with what was said in that case by Asquith LJ (as he then was), and I do not find it helpful to consider whether this statutory duty is in every case the same as an employer’s common law duty. I think it enough to say if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable and as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.”
“This theme was developed in paragraphs 82 – 84 of her judgment on the basis of dictain two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.”
“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk is very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of the risk.”
“the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute.”