Brazier v Dolphin Fairway Ltd.

J U D G M E N T

1. LADY JUSTICE SMITH: This is an appeal brought with the permission of Jacob LJ against the decision and order of HHJ Stewart QC, sitting at Liverpool County Court on 24 June 2004. The claim before him was for damages for personal injuries sustained by Mr John Brazier during the course of his employment as a machine operator with Dolphin Fairway Limited, who are manufacturers of polystyrene products.

2. Mr Brazier had alleged that he had developed a hernia as a result of lifting a wooden pallet from a stack of such pallets. He alleged that the employers had been negligent in requiring him to lift this pallet in that they failed to provide him with a safe system of work. The judge held that Mr Brazier had failed to prove, on the balance of probabilities, that the system of work in force gave rise to a foreseeable risk of injury. He dismissed the claim. Mr Brazier now appeals against that decision.

3. The particulars of claim at paragraph 2 said this about the way in which the accident had happened:

"During the course of the aforesaid employment the claimant was required to take a pallet from a stack of pallets, place this on to the factory floor and then place boxes filled with polystyrene packaging on to it. Pallets were often piled on top of each other over head height. Attempting to remove a pallet from the top of the pile was a difficult exercise because the pallet was heavy and bulky. Further, if the pallets had been left out in the rain, they would absorb water, causing them to be heavier still. On one occasion during January 1999 the claimant moved a pallet from the top of a pile and stumbled with it. The claimant's intent had been to place the pallet on the floor but he suffered sudden pain and dropped it. The claimant developed a lump in his groin area which was later diagnosed as a left inguinal hernia. The said pallet had been placed on top of the said pile by a fellow employee of the defendant whose identity is unknown to the claimant."

4. It was alleged at paragraph 3 that the claimant's injury had been caused by negligence and/or breach of statutory duty of the defendants and/or its employees. However, pursuant to that allegation, no allegations of breach of statutory duty were made, and the particulars given were these:

"The defendant and/or their employees were negligent in that they-

(a) caused or permitted the claimant's fellow employees to pile up the pallets to an excessive height and/or to leave them out in the rain causing them to become excessively heavy;

(b) failed adequately or at all to warn the claimant of the dangers of lifting pallets from an excessive height and excessive weight;

(c) failed to provide any or any adequate equipment to the claimant to allow the removal of pallets in a safe manner;

(d) failed to provide the claimant with sufficient training in the removal of pallets;

(e) failed to operate a safe system of work;

(f) failed to provide the claimant with a safe place of work;

(g) failed to take all reasonable steps to keep the claimant safe during the course of his employment."

5. The evidence in relation to liability was very short and simple. The appellant said very little more than had been set out in the pleading. He said that he picked up a pallet from the stack and, as he lowered it to the ground, he stumbled and felt a pain in his side. Later he found that he had developed a hernia. He gave no evidence as to the height of the stack from which he had lifted the pallet. However, it does appear from examination of the transcript that the trial proceeded on the assumption that he had lifted the pallet from a high stack. He said that the pallets were six feet square, but he did not estimate their weight. He certainly did not say that the pallet that gave rise to his accident was wet. Although he was cross-examined by counsel for the respondent, counsel seems to have been careful to avoid asking any more about the accident, and it may well be that he did so in order to avoid the danger that the appellant might have provided greater detail about the circumstances of the accident.

6. Although the order for directions made by the district judge prior to the trial envisaged that the parties might wish to call expert engineering evidence, no such expert had been instructed for the appellant. There had been no site inspection and there were no photographs showing a pallet, let alone a stack of them.

7. The respondent called Mr Smith, their operations manager. He explained the system of work, and said that he was unaware of any previous accident involving the lifting down of a pallet. Indeed, there was no evidence from any source of any previous accident; nor indeed of any complaint that had been made by any workman about the system of work which included lifting down empty pallets from the stack. There was evidence as to the frequency with which this action was carried out. There were five machines in operation. Each machine had an operator. Each operator would lift down a new pallet about every half hour so that, in the course of an hour, ten pallets would be lifted down by different workmen. It can be seen that, in the course of a working day, a large number of pallets would be lifted down and brought in to use.

8. In giving judgment, the judge said this at paragraph 11:

"In order to prove negligence, the onus being on the claimant, he has to prove that this operation which caused his injury was foreseeably dangerous. The only evidence which even takes the matter past first base it seems to me is in the particulars of claim, paragraph 2, where it said: "…attempting to remove a pallet from the top of the pile was a difficult exercise because the pallet was heavy and bulky." That, of course, is extremely subjective. It was not something which was the subject of any clarification in evidence. There is evidence that pallets would, if they were wet and at the top of the pile, absorb water and cause them to be heavier still. There is no evidence that this pallet was a wet pallet and Mr Bellis [counsel for the claimant] properly accepted that he could not prove that the pallet which caused the accident was a wet pallet. Even if it had been, I have no means of knowing how heavy it was or whether it was heavy enough to give rise to a foreseeable risk of injury.

12. True it is that there is evidence, and I accept this evidence, that this pallet was roughly six feet by six feet and therefore somewhat bigger than the average four foot by four foot pallet but I am completely at sea as regards evidence as to how heavy this pallet was. I am completely at sea as to the forces and the strains which the claimant had to undergo. I have no expert engineering evidence which tells me anything about the forces or the strains.

13. Of course, it is accepted and was accepted by Mr Smith in cross-examination that the further away from the body or the higher that one has to take a weight or strain the more foreseeably dangerous that particular operation becomes but I have no idea where the threshold was on this case because I have nothing to give me assistance as to the weight or the strain or the force which this claimant had to take. Indeed, it is not even clear from the evidence he gave as to whether he took the full weight of the pallet. His statement says: "I picked a pallet from the top of the pile and stumbled with it". It is not at all clear as to whether he took the full weight of the pallet or whether he was pulling the pallet and guiding it down.

14. The position in summary is that there is nowhere near sufficient evidence for me to find that the operation which the claimant was doing, whatever the background and backdrop as to health and safety may or may not have been in the factory, was in any way sufficient to prove a foreseeable risk of injury."

He concluded, as I have said, that there insufficient evidence for him to hold that the system of work had been unsafe, and he found accordingly.

9. The written grounds of appeal made a number of complaints about the way in which the applicant's claim had been prepared and presented by his legal team. When the application for permission to appeal came before Jacob LJ, he explained to the applicant, who was in person, that these grounds could not found an appeal against the judge's decision, but must be pursued, if at all, against the lawyers who had represented him at the trial. However, in the course of the hearing, the Lord Justice was persuaded that there was an arguable ground of appeal. He explained what this was, granted permission and advised the applicant to seek help from the Bar Pro Bono Unit. The applicant took that advice and we have had the advantage of the presence of Mr Oakley, who was appeared today to argue this ground of appeal and another ground which he has sought to introduce.

10. The single ground identified by the Lord Justice and pursued by Mr Oakley is that the judge was wrong to reject the claim for want of proof. He should have been prepared to draw an inference from all the circumstances that there was prima facie evidence of negligence which remained unrebutted by the employer. It follows that the judge should have found negligence proved.

11. There are a number of difficulties with this ground of appeal. First, it is apparent from the judgment that the case was not argued in this way below. It was argued on the basis that the claimant had to prove his case in the ordinary way. What the appellant's new ground of appeal amounts to is a submission that the circumstances of this accident were such as to give rise to what used to be known by the Latin tag of res ipsa loquitur, which roughly translated means that the facts speak for themselves. As applied in a case of alleged negligence, the question is whether the circumstances of the accident speak for themselves and show that there appears to have been negligence. The types of situation in which the facts speak for themselves include, for example, a case where a vehicle leaves the carriageway, mounts the pavement and collides with the claimant. Another common example is where something falls from above and lands on the claimant causing injury. In those types of circumstance, the court will draw the inference thatprima facie negligence has been shown. The evidential burden then passes to the defendant to show that the accident happened without negligence on his part.

12. Although the types of circumstance in which this inference of negligence will be drawn are very variable, and the categories of them I apprehend will never be closed, the inference will not be drawn in every case in which an accident has occurred. The circumstances must be such that the judge can say, in effect: this kind of accident does not usually happen without negligence.

13. In the present case, after dealing with the case as it had been argued, and concluding that negligence had not been shown, as he did in the passage from the judgment which I have already quoted, the judge went on to consider voluntarily whether the circumstances could give rise to an inference of negligence, even though that was not the way in which the case had been argued. He concluded that they could not, saying that the fact that the claimant had had an accident, and that the agreed medical evidence was to the effect that the accident had accelerated the onset of a hernia (to which the appellant was in any event pre-disposed) was not sufficient to give rise to the inference. Indeed, he said that he could not even begin to embark upon the drawing of an inference of negligence from the fact that the accident had happened and had caused some injury.

14. In my judgment, in that respect the judge was right. These were not the kind of circumstances which gave rise to an inference of negligence. The onus in this case was, in my judgment, fairly and squarely on the appellant to prove negligence and, as the judge had explained, he had failed to do so. In my judgment, that ground of appeal which was advanced for the first time at the hearing before Jacob LJ fails.

15. Mr Oakley has sought today to argue a further ground of appeal. It was not before the court below; it was not pleaded, and, in my judgment, it is not open to Mr Oakley to advance it. However, for the sake of completeness and so that Mr Brazier can be satisfied that, even if the point had been taken at an earlier stage, it would not have availed him, I will explain what the point was.

16. Mr Oakley alleged that the case should have been pleaded under the Manual Handling Operations Regulations 1992. As I have indicated, it was not. Regulation 4 sets out various duties of employers. It is said at sub-paragraph (1):

"Each employer shall-

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured-

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule."

The schedule sets out a number of issues that must be addressed in the course of undertaking a risk assessment.

17. Now, the first difficulty with this submission, quite apart from the fact that it was not run below, is that the duty to carry out a risk assessment, which Mr Oakley says these employers should have done, only arises where the employee is required to undertake manual handling operations which involve a risk of injury. Even before the statutory Regulations can bite upon this problem, the claimant would have to show that there was a risk of injury from the work that he had been required to do. Of course, he was unable to do that because he had failed to do that in respect of the breach of the common law duty that he had in fact alleged.

18. Further difficulties existed for the claimant because there was no evidence before the court as to what a risk assessment would have shown. It may well be that a risk assessment would have shown that handling wet pallets from a height of above the head was foreseeably dangerous. That would have resulted in a requirement that the system of work changed to ensure that the pallets were not wet. That is a possibility; we do not know. Nobody could say on the evidence that was available whether a risk assessment would have shown that manoeuvring a six by six dry pallet from approximately head height gave rise to a foreseeable risk of injury. The judge had said that he was not prepared to infer from the mere description of the system of work that it gave rise to a risk of injury, and given that there was no evidence of any previous accident or any complaint about the system of work, that was a wholly reasonable conclusion for him to reach.

19. I regret to say that, quite apart from the fact that this point had not been taken at the right time, I am not at all satisfied that it would have succeeded. In any event, this point was not pleaded below. The case was not argued on the basis of a breach of statutory duty, and it is too late for the point to be taken on appeal. I would dismiss this appeal.

20. LORD JUSTICE WILSON: I agree.

Order: appeal dismissed. No order for costs.