Baird v Thurrock Borough Council

LORD JUSTICE GAGE:  This is an appeal by a defendant, Thurrock Borough Council, against a judgment upon a claim by the claimant, Danny Baird, for damages for personal injuries arising out of an accident at work on 28th September 2000.

The order that the judge made in Southend Crown Court on 3rd March 2005 was judgment for the claimant for damages in the sum of £7,500, together with interest of £225.  The trial proceeded on the issue of liability only.  The parties agreed quantum in the sum of £10,000, subject to liability.  The judge found the defendant guilty of negligence and breach of its statutory duty but reduced the damages by 25 per cent to take into account the finding of 25 per cent contributory negligence by the claimant.

The background is as follows.  On the day of the accident, the claimant was working as an agency worker for the defendant as a loader on a dustcart.  He had been working in that capacity for only a few days before the accident.  His job was to collect and load wheelie bins on to the rear of a dustcart.  When the wheelie bins had been emptied of refuse, he then returned them to the property from whence they had come.

The dustcart was equipped at the rear with two mechanical hoists.  The hoists operated independently of each other.  When a wheelie bin was placed in position on the hoist, the hoist automatically raised the bin, tipped it so that the contents of the bin fell into the rear of the dustcart, lowered the bin to the ground and then released the bin on the ground.  If, for any reason, a wheelie bin was placed on to a hoist and it was not raised automatically and/or not all the rubbish was tipped out of the bin the first time, the operator could raise the bin by means of a manual operation of buttons situated on both sides of the rear of the dustcart.  There were photographs at the trial displaying the position of the hoist on the dustcart.  They are available to this court.

The claimant's account of the accident was as follows.  He said that, on this occasion, he put two wheelie bins on the hoists at the rear of the dustcart.  The left-hand side hoist automatically raised, tipped and lowered the left-hand bin.  However, the right-hand side bin was not raised by the hoist.  The claimant went to the right-hand side of the rear of the dustcart and operated the buttons which manually raised the bin.  He pressed the button and the right-hand side bin went into the up position.  He said he walked back across the rear of the dustcart to remove the left-hand side bin.  As he did so, he was struck by the right-hand side bin, which had tipped and was lowered automatically by the hoist.

The dustcart on that day was driven by Ms Natalie Garwood, an employee of the defendant.  The other loader was Ms Lisa Mulqueen, formerly Marshall.  Although neither Ms Garwood nor Ms Mulqueen saw the accident, both witnessed what happened afterwards, having immediately gone to the rear of the dustcart after hearing the incident.  At the rear of the dustcart they found the claimant kneeling with injuries to his face.  The left-hand side bin had been knocked off the left-hand side hoist and was lying on the pavement but the right-hand side bin, they said, remained in the up/tipping position, attached to the right-hand side hoist and had not been lowered.

The evidence of Ms Garwood and Ms Mulqueen conflicted with the claimant's evidence.  If, as the claimant alleged, he had been struck by the right-hand side bin as it descended, then the right-hand side bin would not have been in the up/tipping position after the accident.  Ms Garwood and Ms Mulqueen gave the claimant first aid and then all three got into the dustcart to drive the claimant to the hospital.  The dustcart pulled off a few metres down the road and it was then that Ms Garwood realised that the right-hand side bin was still in the up/tipping position.  She stopped the dustcart and Ms Mulqueen got out, lowered the right-hand side hoist and removed the bin, leaving it at the side of road.  The dustcart then continued to the hospital. 

In his witness statement prepared for the trial, the claimant made no mention of what had happened after the dustcart had driven off to hospital.  In cross examination, when he was asked about the incident when the dustcart was, as Ms Garwood and Ms Mulqueen said, lowered after being driven off, he said that the right-hand side bin had always been in the down position and had remained on the hoist and had been dragged along the road by the dustcart until it was released when the dustcart stopped.

Ms Garwood and Ms Mulqueen on the other hand said that the right-hand side bin was always in the up/tipping position until it had been lowered down by Ms Mulqueen.  Ms Garwood said that, if the vehicle had driven off with the right-hand side bin in the lowered position, the clamp which attached the wheelie bins to the hoist would have been released and the dustcart would have been left behind.  That, she said, was not the position when they drove off. 

There was evidence in the form of an agreed report by an expert in forensic health and consultancy work, Stewart Page.  He inspected and examined a vehicle which either was the vehicle involved in the accident or one very similar to it.  The judge found that whether it was the one being used at the time or one very similar was not material.  The expert in his report described the hoists and the way in which they operated.  He went on in his report to describe the circumstances of the accident before setting out his analysis of the accident.  At paragraph 26 he said this:

The three important witnesses at the trial were, as I have indicated, the claimant, Ms Garwood and Ms Mulqueen.  It is not disputed that neither Ms Garwood nor Ms Mulqueen had actually seen the accident but, as I have already said, each said that after the accident the right-hand side wheelie bin was in the raised position.  Further, in cross examination, Ms Garwood said that, when she drove off, if the hoist had been in the lowered position on the right-hand side, as described by the claimant, the wheelie bin would have been released from the clamp on the hoist and would have been left behind. It was because it was still in the raised position on the hoist that she stopped. 

The judge in his judgment recited the evidence given by the claimant and then turned to the defence case.  He said at page 14 of the appeal bundle, starting at line 5:

Other than the reference to the fact that he did not think that either of the two ladies were in any way trying to mislead the court, the judge did not recite their evidence and what, on behalf of the defendants, it is submitted was the central issue in the case, namely the position of the right-hand side wheelie bin after the accident.  The judge continued in his judgment at line 14:

The single ground of appeal is that the judge failed to give any or any adequate reasons for finding that the claimant was a truthful and accurate witness.  The bald statement that, having seen and heard the witnesses, he had found the claimant to be the telling the truth, it is submitted, was insufficient.  In particular, it is submitted that the judge failed to deal with the conflict of the claimant's evidence with that of the evidence of Ms Garwood and Ms Mulqueen, which, if accurate, was entirely inconsistent with the claimant's version of how the accident occurred.  In short, the defendant's case on appeal is that they are left in a position that they are unable to understand why they lost the case.

The claimant's submission is also short and simple.  Mr Livingstone submits that it is obvious from the whole of the judgment that the judge accepted the evidence of the claimant and he sufficiently explained, in the course of the judgment, why he had.  It is accepted by Mr Livingstone that he did not deal in precise details with the evidence of Ms Garwood and Ms Mulqueen but the effect, it is submitted, is to show that the reason that he found for the claimant was simply that he accepted the claimant as a truthful and accurate witness. 

In their skeleton arguments, both counsel have referred to a number of decisions of this court dealing with the need for a judge to give reasons and to the sufficiency of the reasons.  It is necessary, for the purposes of this judgment, to refer to but one: the decision of this court in English v Emery Reimbold & Strick Ltd & Orrs [2002] 1 WLR 2409.  I shall refer only to short passages in this judgment.  At paragraph 19, Lord Phillips MR, as he then was, said:

It is clear that a judge is entitled to express the reasons for his decision briefly.  For my part, I would wish to say nothing which would discourage a judge from expressing the reasons for his decision briefly but it is equally clear that the reasons for his or her decision must be sufficient to explain why he reached that decision.  The question therefore in this appeal is: do the judge's reasons for his decision meet the test of adequacy?  In my judgment, in this case they did not. 

I reached this conclusion for four reasons.  It is not clear, from his judgment, that the judge understood the importance of the evidence given by Ms Garwood and Ms Mulqueen.  If their evidence was correct, the claimant could not have been injured by the right-hand side wheelie bin because, on his version of the accident, it would have been found after the accident in the down position.  The evidence of the two lady witnesses was that it was in the raised position after the accident, which is wholly inconsistent with the version of the accident given by the claimant.  Secondly, the judge made no finding on the issue of whether, when the dustcart drove off, the right-hand side hoist was in the down position or upright.  He did not find whether or not Ms Garwood was right when she said that, if the claimant said it was in the down position, the wheelie bin would have been left behind.  Thirdly, having said that, in his opinion, neither of the two ladies were in any way trying to mislead the court, the judge did not explain on what basis their evidence was untruthful or inaccurate in respect of the position of the wheelie bin after the accident and after the vehicle drove off.  In my judgment, it was necessary for him to explain that inconsistency if he was to say that he was accepting the claimant's evidence in preference to the evidence of those two witnesses.  Fourthly, the judge cited the expert's evidence as corroborating the claimant's evidence.  As the defendants submitted in their skeleton argument, that is factually incorrect.  It is true that Mr Page's statement concluded that the accident was due to lack of proper training but he did not venture an opinion, nor could he, as to how the accident occurred.  Put shortly, in my judgment, the judge never grappled with the need to explain why it was that he rejected the evidence of Ms Garwood and Ms Mulqueen on the crucial issue, the issue of how the accident happened.  In my view, it was not sufficient for him to say, without more, that, having seen and heard the witnesses, he accepted the claimant's evidence.  He ought to have explained why he rejected the evidence of the two ladies as either untruthful or mistaken.

The tragedy of this case is that, having reached this conclusion, in my judgment the matter will have to go back to be re-heard by a different judge.  Mr Shapiro has sought to persuade this court that we should decide the case on the transcript of the evidence of the witnesses.  In my judgment it is quite impossible for this court to accede to that submission.  The judge accepted the claimant's evidence.  We have not heard either him or the two witnesses before the defendant.  The result of the case depends upon which witness was accepted as truthful and accurate.  There is now no way that this court can make that decision.  For my part, I would allow the appeal and direct that the matter go back to the County Court to be re-heard by a different judge.

LORD JUSTICE KEENE:  I agree that this appeal should be allowed, for the reasons given by my Lord.  I do so with regret because it will only add yet another amount of costs to the already excessive costs incurred in relation to this claim.  Those costs are grossly disproportionate.

LORD JUSTICE WARD:  I also agree. I am bound to say that I am extremely sorry for the claimant, who sits at the back of the court and who, having been believed by the judge, must feel quite bewildered that the case must go back for a new hearing. 

Secondly, I would add this: when the judge dealt with the permission to appeal, Mr Shapiro had said to him, and I read from the transcript on page 17:

Short judgments are, of course, all fine and well and to be encouraged but only if they are careful judgments.  Second, judges do not have to deal with each and every point in issue but where the dispute is as fundamental to the case as this one then it does deserve mention and an explanation being given for the apparent inconsistency between his appearing to believe the two ladies yet also finding that they could not have been correct in saying that the right-hand bin was still up in the air.  If the judge had not so intemperately interrupted counsel, he would have heard Mr Shapiro's point, he would have had a chance to consider the suggested omission and expanded his reasoning to cover it if he thought fit.  It is a great shame that he did not do so.  As it is, this small claim, with its huge attending costs, must go back for a retrial, unless attempts at ADR can bring about a settlement which ought to have been reached before the case got to the court in the first place.

I would therefore also allow the appeal to send the matter back to the County Court with a different judge.