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It is accepted law that employers owe a non-delegable
duty of care to their employees. However as covered in our previous
review of the CEVA Logistics decision, the non-delegable nature of
the duties owed by an employer does not preclude another party
owing co-extensive duties, thus offering scope for an
employers' liability to be shared with another
party.
The High Court considered such a situation in the case of
Helen Shearer Evans (Executrix of the Estate of Malcom Evans
Deceased) and Royal Borough of Windsor and Maidenhead
(1) and Charles Wilson Engineers Limited (2) (July
2011).
The claimant sustained fatal injuries by striking an overhead
pipe whilst reversing a mobile elevating work platform. He was
employed by the second defendant as an HGV driver. He was
responsible for the delivery and collection of a mobile elevating
working platform ('MEWP') at a site belonging to the first
defendant. At the site there was an overhead pipe, linking a
heating installation to a gymnasium over a private access way. The
pipe was situated about 3.3 metres from the ground. The height of
the MEWP when fully stowed was three metres. The second
defendant's sales manager had visited the site to assess the
size of plant required.
The accident occurred when the claimant collected the MEWP. He
was reversing the same and struck the pipework. On the entrance
side to the site there was signage affixed to the pipework warning
of the danger. There was no such signage on the other side of the
pipework. There were no warning signs in advance of the pipework on
either side. As a result of the accident the HSE made
recommendations to the first defendant, which included putting up
signs in advance warning of the height restriction. However there
were no HSE prosecutions arising out of the incident.
The claimant brought proceedings against the first defendant, as
occupier, alleging that there was inadequate signage. The first
defendant denied that the signage was inadequate and brought Part
20 proceedings against the second defendant alleging that the
claimant had been inadequately trained in the use of the MEWP, and
that a banksman ought to have been present for the delivery and
collection.
The second defendant gave evidence that the claimant was an
experienced driver. After joining the defendants in 1994 he had
been trained in April 2002 on a four day course, both as an
operator and demonstrator of MEWPs. The ensuing certificate was
valid for five years, although at the time of the accident the
certificate was about to expire.
The second defendant stated that it would not be feasible to
carry out a risk assessment in individual hire contracts where
200-250 pieces of equipment were being delivered on a daily basis
across the country. Drivers were expected and trained to carry out
individual risk assessments.
David Pittaway QC (sitting as a Judge of the High Court) was
solely concerned with the issue of contribution proceedings between
the two defendants. He found the claimant was inadequately trained.
He further found that the second defendant placed too much reliance
on the extent of the claimant's experience and insufficient
emphasis on making sure that he did not develop practices which
placed him at risk whilst delivering or collecting plant.
Additionally, whilst unusual, on this occasion a site inspection
was conducted. The second defendant's sales manager was aware
of the presence of the overhead pipework and should have noted and
recorded the issue of restricted headroom. The claimant should have
been warned in advance of the restricted headroom.
However, the judge also considered that the failure of the first
defendant to display clear signage in advance of the overhead
pipework in either direction and on the pipework for vehicles
exiting the site was a breach of the duty by the first defendant to
visitors to the site.
Having made the above findings he found the parties to be
equally responsible for the incident and apportioned liability
50/50 accordingly.
Key points for defendants
When an employee is injured on the site of a third party give
careful consideration as to whether the third party has potentially
breached any duties owed to the employee
Whilst an employer's duty to an employee is non-delegable
remember that this does not prevent an apportionment of liability
if another culpable party can be identified
On a practical level an employer may need to consider joining
in a party as an additional defendant pursuant to Part 20. The
employee may consider the employer to be the easiest target,
although that was not the position in this particular case
Occupiers should give attention to the risks presented to
employees whilst they are on site
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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