PROVING THINGS 206: THE EMPLOYERS LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969 IN ACTION

March 8, 2021 · by · in Civil evidence, Personal Injury

I am grateful to  Martin McKenna from Aegis solicitors  for sending me a copy of the judgment of DDJ Morgan MBE in Johnson -v- National Platforms Ltd (a copy of which is available here Johnson v Nationwide Platforms Limited (Final)). The judge considered the provisions of the Employers Liability (Defective Equipment) Act 1969.   This Act has become more important following the breach of an action for breach of statutory duty.   Knowing how to construe the Act is important for claimants and defendants alike.  In this case the 1969 Act was central to the claimant’s success.

 

THE CASE

The claimant was injured whilst working on a platform. The platform fell to one side. The cause of the accident was a failure of the rotator belt in the cage rotator assembly.

THE TRIAL

The trial was unusual in that neither party called evidence. The claimant’s evidence was agreed. The defendant’s argument was that it as for the claimant to prove it was liable under the terms of the 1969 Act.

THE JUDGMENT

The judge rejected the argument that the defendant was liable for being in breach of statutory duty, the cause of action no long existing.  However he did find that the defendant was liable under the 1969 Act. There was no doubt that the action occurred because of a fault by someone.

THE CLAIMANT’S SUCCESSFUL RELIANCE ON THE 1969 ACT

Submissions in relation to the 1969 Act
  1. Section 1(1) of the 1969 Act provides:
  • Where after the commencement of this Act
    1. An employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of his employer’s business; and
    2. The defect is attributable wholly or partly to the fault of a third party (whether identified or not)’
The injury shall be deemed to be also attributable to negligence on the part of the employer
  1. Section 1(3) of the 1969 Act defines ‘fault’ as follows:
‘fault’ means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to damages in Scotland
  1. It is perhaps convenient to examine the Defendant’s position in relation to the 1969 Act first. The arguments advanced by Mr Panton were succinct.
  2. The Defendant readily conceded that the Claimant suffered personal injury in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business.
  3. The Defendant argued that there was no evidence as to what the defect was attributable to nor any evidence that any third party, including the manufacturer, was guilty of ‘fault’ as defined by the 1969 Act and, if that be the case, the claim must fail as the preconditions for liability set out in the 1969 Act are not met.
  4. Mr Panton specifically referred to the letter dated 12 May 2016 from Ruthmann GmbH & Co KG (the manufacturers) to Lavendon Group plc (of which the Defendant was a division) which he averred neither admitted nor suggested ‘fault’.[1]
  5. The Defendant’s position was that the burden of proof in establishing ‘fault’ as defined in the 1969 Act is no different in this case from any other civil claim in that it lies squarely with the Claimant.
  6. Mr Panton complained that the CPA 1987 had not been pleaded and stated that its application had nothing to do with ‘fault’ and took exception to Mr Pennock’s use of the expression ‘incorrect bolt’.
  7. The Claimant’s position that the 1969 Act applies relies upon the Defendant’s pleaded admission that the cause of the working platform dropping to one side was subsequently determined by the manufacturers to be the failure of a rotator bolt in the centre of the cage rotator unit.
  8. The Claimant also relies upon the Defendant’s disclosure and written evidence to establish ‘fault’ under section 1 of the 1969 Act including the Defendant’s Accident Investigation Report dated 22 March 2016 (the day after the incident)[2] of which Mr Christopher Blakely was the author. At a joint inspection by the manufacturers Ruthmann and the Defendant it was recorded that ‘the rotator bolt has severely corroded and sheered internally within the rotator mechanism which has allowed the lock nut to work its way out of the cage rotator assembly.’
  9. The Claimant also relies on the letter dated 12 May 2016 from Ruthmann to Lavendon Group[3] as an admission by Ruthmann that the rotator bolt was defective in that incorrect metals had been used for the rotator bolt assembly and that there was therefore a prima facie case of negligent design which had not been rebutted by the Defendant calling evidence from the manufacturers or others.
  10. It was submitted therefore that the Defendant must be liable under section 1(1) of the 1969 Act relying in support of that submission upon the intention of Parliament by producing a Hansard transcript of the Third Reading of the 1969 Act and the findings of the House of Lords in Knowles v Liverpool City Council.[4]
  11. Mr Pennock highlighted that following the incident all 19 Ruthmann Stieger vehicles within the Defendant’s fleet were checked and 4 or 5 were found to have excessive corrosion to the rotator bolt and that Ruthmann circulated Service Instructions to change the screw and bushing to stainless steel (Instruction 0.923.125.000)[5] – the instruction being stated ‘to exclude comparable corrosion in future.’[6]
Conclusions upon Liability
  1. I have already dealt with the allegations of beach of duty set out in paragraph 10 in paragraph 13 above.
  2. In relation to section 1 of the 1969 Act Counsel for the Claimant suggested that if the Claimant prima facie established fault within the definition ‘fault’ set out in section 1(3) of the 1969 Act recited in full at paragraph 16 above then the Defendant should submit evidence to rebut that position.
  3. I do not accept that submission. It is for the Claimant to satisfy the court that there is fault and the test that is to be applied is the standard test in civil proceedings ie upon the balance of probability taking into account all of the evidence before the court and submissions made on behalf of all parties.
  4. Having regard to all of the evidence I should ask myself various questions to which some of the answers are self-evident and not in dispute between the parties, ie:
    1. The Claimant’s injuries were sustained whilst in the course of his employment with the Defendant.
    2. The injuries arose following the cage in which the Claimant was operating with two telecoms engineers unexpectedly dropping to one side resulting in the Fire and Rescue Services being summoned to assist in the extraction of the operatives from the cage.
  • What was the cause of the cage dropping? Accident investigation was carried out jointly by representatives of the Defendant and Ruthmann. The records of the Defendant contained in the Accident Investigation Report[7] confirm under the heading ‘Root Cause / underlying causation:
‘A statement from Manufacturer Ruthmann after they have consulted with their Head of Research and Design stating that; they have inspected (by stripping down and removing the cage rotator bolts) a further 19 machines in this range  and with the results from inspections carried on machines by Lavendon (Nationwide Platforms & Gardemann Germany), in each occasion the rotator bolts was found to have excessive corrosion’
The excessive corrosion of the bolt as contributed to it to sheer internally within the rotator mechanism allowing the lock nut to work its way out of the cage rotator assembly.’[8]
  1. The findings of the Accident Investigation was further confirmed by all three of the witnesses upon behalf of the Defendant in their respective witness statements and the letter from Ruthmann to the Defendant dated 12 May 2016 where following inspection of all 19 machines in the Defendant’s fleet ‘we implemented the initial changing of all the bolts.’ And went on to say; ‘To exclude comparable corrosion in future on the connection between the bolt and the bushing, we developed and issued Service Instruction to change the screw and the bushing to stainless steel (in detail compare Service Instructions 0.923.125.000).
  2. The letter from Ruthmann also contained further confirmation of the corrosion and its cause:
‘It could be found that corrosion on the original chromed bolts in the stainless steel bushing is mainly connected to a chemical reaction to the materials used [9] and the age of the machine and might be additionally negatively influenced by external corrosive mediums………’
  1. The heavy corrosion of the sheared bolt and bushing is clearly shown in the photograph to the report of Mr Derek Lightfoot exhibited to the Claimant’s statement.[10]
  • The court can properly draw the conclusion from the evidence that the principal cause of the corrosion of the rotator bolt was that there was a chemical reaction between the two metals used for the bolt and the bushing causing the bolt to sheer and giving rise to the rotator assembly failing.
  • In answer to the question ‘Should that have happened under normal circumstances?’ the answer is unequivocally ‘No’.
  1. Why did it happen? Again it is abundantly clear to me that the specification of a chrome bolt to fit into a stainless steel bushing must have been at the time of manufacture whether by Ruthmann or by a third party engaged by them to design the machine – it matters not because section 1 (1)(b) provides ……..’The defect is attributable wholly or partly to the fault of a third party (whether identified or not).’
I find therefore that the use/specification of metals that were likely to corrode by Ruthmann or others was a ‘fault’ for the purposes of section 1(3) of the 1969 Act.
  1. The Defendant is, upon those findings, clearly caught by the provisions of section 1(1) of the 1969 Act and therefore liable to the Claimant in damages for the injuries he sustained on 21 March 2016.
  2. It is only right that I state at this point that I am entirely satisfied upon the records and evidence produced that the Defendant had in place an appropriate scheme of maintenance for the machine in question in accordance with Ruthmann’s maintenance recommendations and in one instance was even more rigorous in terms of frequency than that recommended. The failed bolt was not a serviceable part nor was it recommended that it be inspected periodically by Ruthmann.
  3. Ruthmann’s specification of replacement bolts of stainless steel in place of the chromed bolts is a clear acknowledgment upon their behalf that the original specification was inappropriate because of the corrosion likely to occur because of the potential (and likely) reaction between the two metals
  4. I previously indicated that if I reached the conclusion that the Defendant was caught by section 1(1) of the 1969 Act then there would be no need for me to consider in any detail the application or otherwise of the CPA 1987 but if either counsel believe it necessary or expedient to do so I will do so in an addendum to this document.

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