PLEADINGS: CLAIMANTS – TELL THE DEFENDANT THE CASE THAT IT IS GOING TO BE PUT AGAINST THEM

There are some interesting observations as to how a claimant should plead their case in the judgment in Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB).

“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.”

THE CASE

The claimant was injured at work when he fell off the back of a lorry.  He brought an action for personal injury and was unsuccessful at trial. He appealed on this issue of liability.

THE CLAIMANT’S SUCCESSFUL APPEAL

The claimant’s appeal was successful.  Mr Justice Martin Spencer held that the trial judge had made errors in relation to the nature of the risk assessment. Further the issue of reasonable practicability had not been fully addressed.   Liability was entered with the claimant being held to be 50% responsible.

  1. For the above reasons, in my judgment, the learned Judge misdirected himself in relation to the test to be applied and wrongly decided that the measure of directing the employees to ensure that the tail gate was up whilst they were working in the back of the van was not reasonably practicable. As I have already stated, this was, in any event a surprising decision when it was a measure which the Defendant had already taken. Nor, in my judgment, does the fact that no such accident had previously occurred to any employee of the Defendant avail the Defendant: the risk was clearly identifiable by the Defendant, indeed in some ways it was an obvious risk, and, crucially, the risk was designated by the Defendant’s themselves, rightly, as a high risk given the potential severity of the injuries in question. Clearly any high risk activity with the potential to result in very serious injury (or even death) is not one which can be ignored or overlooked by an employer and the truth is that the flawed risk assessments undertaken by Mr Williams on behalf of the Defendant had the effect of overlooking or ignoring the risk of falling from the back of the van or lorry and in that regard, in my judgment, the Defendant was in breach of its duty to the Claimant.

PRE-OCTOBER 2013 ACCIDENT

The accident occurred on the 8th April 2013, before the implementation of s.69 of the Enterprise and Regulatory Reform Act. Nevertheless the passages on inadequate risk assessments are of importance.   The observations made in relation to the way in which the case was pleaded also remain apposite even if the question of “reasonable practicability” is not necessarily considered against the background of a statutory duty.   The question of what a defendant could, and should, have done, should be pleaded specifically.

MR JUSTICE MARTIN SPENCER

  1. Having so determined this appeal in favour of the Claimant subject to contributory negligence, it is unnecessary for me to deal with the other issues raised. However, for the sake of completeness, I should indicate that, in my judgment, the learned Judge was right to rule that, except in the case of clear and obvious measures, it is for the Claimant to raise at least evidentially the safety measures which they say should have been in place for those safety measures then to be “in play” so far as the court is concerned. In the present case, the Claimant raised in terms, on the face of the pleadings, the question whether the tail gate should have been in a raised position for employees working in the back of the van. If the Claimant wished also to put forward a positive case that other measures should have been in place such as the wearing of hard hats or the painting of safety lines in the back of the van, then those should have been raised on the Pleadings as well, thereby giving the Defendant the opportunity to deal with them and call evidence, including in relation to reasonable practicability, if so advised. It is not satisfactory for such matters to be raised for the first time in cross-examination of the Defendant’s main witness and I agree with the learned Judge that to do so is unreasonable and unfair on a Defendant. Accordingly, I agree with the way that this matter was put by the learned Judge at paragraph 24 of his judgment (see paragraph 18 above in this judgment) and in that regard, there was no misdirection on his part.

THE TRIAL JUDGE’S OBSERVATIONS

The trial judge HHJ Simpkiss had stated

4. 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.”