Andrew Carr v Brands Transport Limited

This is a tragic case. Nothing in this judgment is intended to minimise the loss and suffering of the Claimant, his family and his friends.

This is also not a straightforward case. Resolving it has not been easy and has taken some time.

The case raises a number of substantial legal issues including: (a) whether the Claimant was an employee of the First Defendant, Brands Transport Ltd (Brands), as well as being its sole director and majority shareholder; (b) assuming he was an employee, whether Brands is liable for alleged faults on the part of its external transport manager (an independent contractor), who was responsible for regulatory compliance, and whose fault (it is said) caused or contributed to the accident in which the Claimant was seriously injured, because Brands owed the Claimant a non-delegable duty of care as its employee: see Woodland v Swimming Teachers Association [2014] AC 5; (c) whether the Claimant can sue Brands, even though he was its sole director, or whether, it being said by Brands that the accident was the Claimant’s own fault, his claim is defeated by the principles set out in Brumder v Motornet Service and Repairs Ltd [2013] 1 WLR 2783; (d) whether Brands’ external transport manager was in a position analogous to that of an employee, so that Brands is liable for his fault as if he were in law an employee: see Various Claimants v Barclays Bank Plc [2020] AC 973; and (e) whether the Claimant was contributorily negligent and, if so, to what extent.

As well as my detailed trial notes, I have full transcripts of the hearing which I have consulted whilst writing this judgment. I also was supplied with various written submissions by the parties, before and after the trial, for which I am grateful.

On 18 December 2017 the Claimant, then aged 32, was in the process of loading cars on to the top deck of a large double-decker car transporter at premises in the Midlands. The vehicle consisted of two distinct sections: a tractor unit (or cab), and a trailer with triple axles. Both the cab and trailer unit had ramps (decks) which could be raised and lowered and/or angled to allow for the loading of cars. Also, sitting directly above the tractor unit, was a fixed overhead platform. This, and other sections of the unit, had safety rails. These consisted of cables looped through steel guard rails which were welded to the unit, with the ends of the cables anchored to the unit. The rails were intended to stop people from falling from the decks.

As the Claimant was loading and securing a Skoda car on the deck above the tractor unit, the front near side safety guard rail gave way when the Claimant leant back on it or put pressure on it. That is the inference I draw from the evidence: no-one saw the actual accident. The Claimant fell some 14 feet or so on to concrete. He suffered a severely fractured skull and catastrophic brain injuries which he is unlikely ever to recover from. It is not necessary for the purposes of this judgment (which is only concerned with liability) to set out further details of his injuries. He is not able to give evidence and is a protected party.

It is common ground that the safety rail failed because of corrosion in the front near side guard pillar. An area of the pillar just above where it had been welded to the unit had almost entirely corroded away. That pillar then snapped when force was applied to it, causing the cables to give way and the Claimant to fall from the top deck.

The transporter was owned by Brands. The Claimant was Brands’ sole director and an 80% shareholder. His partner Michelle Parsons owned the other 20%. The Claimant was paid a salary. Ms Parsons did some administrative work for the company and also received a salary.

Brands was established by the Claimant in February 2016. It was going to undertake car transport work using the transporter, which was purchased second-hand towards the end of 2016. There had been some ‘dry-runs’ in the months prior to the accident, but the day of the accident was Brands’ first paying job.

At least initially, there was an issue whether the Claimant was an employee of Brands. For reasons I will explain later, I am satisfied that he was indeed an employee, as well as being its sole director and majority shareholder. The law is clear that a company’s sole director can also be an employee.

The Claimant sues Brands for negligence for personal injury.

The Third Party, Trax (Coventry) Limited (Trax) is a company whose business included carrying out safety checks on large vehicles (it has since ceased trading). The regulatory regime in force for such vehicles requires them to be inspected for roadworthiness regularly, in the case of the transporter, every six weeks, as well as having an annual MOT. Drivers also need to do daily walk around inspections before they set off. Trax inspected the car transporter in October 2017 and November 2017 and passed it as roadworthy. There had been two inspections earlier in 2017 not done by Trax. The vehicle passed its MOT in August 2017.

Because it was used for working at height, the transporter needed additional inspections under health and safety regulations, as I will describe in a moment.

The Claimant originally issued proceedings against both Brands and Trax as Defendants. Following pleading amendments, the Claimant’s case against Trax was discontinued. Brands then brought a claim against Trax under CPR Part 20 for an indemnity/contribution, in the event that I find Brands to be liable. It is common ground that if I find for Brands as against the Claimant, then its claim for a contribution from Trax will fall away.

As I have said, because the transporter involved working at height, it was subject to the Lifting Operations and Lifting Equipment Regulations 2008 (SI 2008/2307) (LOLER). These imposed additional inspection requirements over and above those I have already mentioned. Also relevant are the Provision and Use of Work Equipment Regulations 2008 (SI 2008/2306) (PUWER) and the Working at Height Regulations 2005 (SI 2005/735) (WHR).

It is convenient here to set out the relevant regulations.

Regulation 4 of LOLER provides:

Regulation 9 provides:

There was an issue about whether, pursuant to this regulation, the transporter should have had a thorough reg 9 LOLER inspection at least every six months, or at least every 12 months. For reasons I will explain later, I incline to the view that the relevant period was at least every six months, pursuant to reg 9(3)(a)(i). In saying this, I have not overlooked that the last LOLER inspection report done by the company from which Brands bought the transporter (ECM (Vehicle Delivery Service) Ltd (ECM)) said an inspection was due in 12 months from the date of its inspection.

But whether the minimum inspection period was six months or 12 months, does not in the end matter. The transporter’s last reg 9 LOLER inspection before Brands bought it was on 5 July 2016. Thus, on any view, the next LOLER inspection was due no later than 4 July 2017, ie, more than five months before the accident.

I find on a balance of probabilities that had such an inspection been carried out, it would have identified the defective and corroded guard rail and so prevented the accident. That is the thrust of the expert evidence, and no-one suggested to the contrary. The photos taken after the accident show there were very obvious problems with the upper deck guard rails, which would have raised concern, had they been inspected pursuant to LOLER. As well as the corroded pillar which failed, another safety pillar had a large bulge under its plastic sheath, indicative of some sort of problem. There had also been defective welding work carried out on one of the pillars (it is not known by whom).

Regulation 8 of the WHR is headed ‘Requirements for Particular Work Equipment’, and provides:

The relevant paragraphs of Sch 2 are these:

Sub-paragraphs (1) and (3) of reg 12 (‘Inspection of Work Equipment’) provides:

The following regulations of PUWER are also relevant:

In due course I will need to refer to s 47 of the Health and Safety at Work etc. Act 1974 (civil liability), as amended by s 69 of the Enterprise and Regulatory Reform Act 2013 (civil liability for breach of health and safety duties). As so amended, s 47 provides:

(b) …

For the purposes of this case, the important provision is s 47(2). This excludes liability for breach of a duty imposed by a statutory instrument containing health and safety regulations. Whereby, prior to the enactment of s 69, an employee could sue for breach of statutory duty and rely upon a breach of health and safety regulations (which often imposed absolute liability), his or her remedy now lies in common law negligence, requiring them to show fault in the form of a breach of duty on the part of their employer. The parties were agreed, however, that such regulations remain relevant in defining the scope of that common law duty of care.

Section 1 of the Employer’s Liability (Defective Equipment) Act 1969 (the 1969 Act) is also relied upon by the Claimant. I will return to this later.

For the Claimant I heard live evidence from: Michelle Parsons; Andrew (Tony) Carr, the Claimant’s father; and Steve Maynard, who worked as a freelance HGV driver for Brands and was with the Claimant on the day of the accident, although he did not see it. He had driven the vehicle on a few occasions prior to the accident on practice runs.

For Brands I heard evidence from David Sippitts, who was Brands’ external transport manager. I need to say a word here about a transport manager’s role because it is important in this case.

It is a statutory requirement that the holder of an operator’s licence for goods vehicles (as Brands was) have the services of a transport manager: see The Goods Vehicles (Licensing of Operators) Act 1995, s 13A and Sch 3.

Large operators generally have internal, employed, transport managers, whereas smaller operators like Brands use the services of external transport managers who work on a freelance basis. Mr Sippitts was an external transport manager. He had a number of different clients, of which Brands was just one. He was paid a monthly retainer of £350 by Brands, and did a few hours work for it each month. His job was to ensure that Brands met its regulatory obligations (to put it neutrally) as the holder of an operator’s licence for a heavy goods vehicle. I say ‘neutrally’ because, as I will explain, Mr Sippitts did not regard health and safety matters as being his responsibility. He only thought that the transporter’s ‘roadworthiness’ – as he saw it - was part of his ‘remit’.

For Trax, I heard from Keith Simpson, who at the time was its director. I also heard from Joshua Wheeler, who formerly worked for Trax as a mechanic, and inspected the transporter in November 2017.

Trax also relied on the statement of Phillip Harrison, a heavy goods vehicle technical operator for the Driver and Vehicle Standards Agency (DVSA), which was taken as read.

There was also a quantity of expert evidence. This was effectively agreed, and no party required any expert to be called. I was referred to the salient parts of this evidence, some of which I will mention later.

Michelle Parsons was the Claimant’s first witness. I am grateful to Ms Parsons for the clear and dignified way in which she gave her evidence. She could not have found doing so easy.

Ms Parsons explained the history of the company’s formation; her role and that of the Claimant; how they had taken advice about share ownership, as well as other matters.

Through Ms Parsons I was taken to a quantity of documentation including: the Claimant’s P60 for the tax year to April 2018 (the year of the accident) which showed he earned £9453.28 that year; a schedule prepared by Brands’ accountants showing the Claimant’s monthly earnings through 2016 and 2017 (there are others for him and Ms Parsons); and the employee and employer National Insurance (NI) contributions. The accountants would advise Ms Parsons or the Claimant when NI and PAYE was due. I was also shown evidence of an employee liability insurance policy. Ms Parsons told me that they had been taking advice about employee pensions, although nothing was ever put in place because of the accident.

I was also shown an unsigned contract of employment between Brands and the Claimant. Clause 2.1 stated:

A salary of £11 000 pa was specified in clause 5.1.

There was no evidence about who drew up the contract, or when, but it certainly looks like it was professionally drafted.

Ms Parsons told me in terms that she and the Claimant were employees of Brands.

The definition of an employee is set out in the Employment Rights Act 1996, s 230:

The determination of whether someone is an employee, or a worker, or an independent contractor, requires a factual assessment. Lord Leggatt summarised the approach in Uber BV and others v Aslam and others [2021] ICR 657, [118]:

On this question Mr Killalea KC referred me to the judgment of Elias P in Clark v Clark Construction Initiatives Ltd [2008] ICR 635, [98], where the following guidance was given as to whether the contract of employment of a majority shareholder should be given effect: (a) the onus is on the party denying a contract; (b) where an individual has paid an employee’s tax and National Insurance, prima facie he is entitled to an employee’s rights; (c) the mere fact of majority shareholding (or de facto control) does not in itself prevent a contract arising; (d) similarly, entrepreneur status does not in itself prevent a contract arising; (e) if the parties conduct themselves according to the contract (eg, as to hours and holidays), that is a strong pointer towards employment; (f) conversely, if their conduct is inconsistent with (or not governed by) the contract, that is a strong pointer against employment; (g) the assertion that there is a genuine contract will be undermined if there is nothing in writing; (h) although a majority shareholding and/or control will always be relevant and may be decisive, that fact alone should not justify a finding of no employment.

Applying this approach, I am satisfied that the Claimant was an employee. There is no inconsistency between being a sole director and an employee: Lee v Lee’s Air Farming Ltd [1961] AC 12.

The factors supporting that conclusion are, in particular, that: the Claimant paid income tax on a PAYE basis; employee NI was paid; the company had employee insurance in place; the way the Claimant was treated by the company’s accountants; the existence of an unsigned contract of employment specifying the Claimant to be an employee; his partner regarded she and he to be employees (and there is no evidence that he believed anything different from her); and that, although the Claimant was a director of the company, his job title at Companies House was ‘manager’.

This means that Brands owed him a duty of care as its employee. I will need to consider later the nature of that duty, and whether Brands was in breach of it.

Ms Parsons said Brands bought the transporter because the Claimant was hoping to expand the business and needed a bigger vehicle. He had done some single vehicle recovery work, but had bigger ambitions. She was not involved in the purchase.

Brands was granted an operator’s licence by the Office of the Traffic Commissioner in April 2017. The Traffic Commissioner is responsible for the licensing and regulation of those who operate HGVs, buses and coaches and the like.

Ms Parsons said that the Claimant had little experience of car transporters, and had never owned one before. She explained the legal requirement for a transport manager. After using one company for a time, they decided that they wanted someone more experienced, and so David Sippitts was engaged. He came to their house and had discussions with the Claimant. As far as she knew, Mr Sippitts never actually saw the vehicle. It was parked at a lorry park called Seclands in Coventry, to whom Brands paid a monthly fee.

In cross-examination by Lord Faulks KC for Brands, Ms Parsons said that she herself never saw the transporter and did not see any work done on it, although she knew work had been done by a third party. She never saw it fully loaded, but had seen it with a couple of vehicles on it. She thought that the Claimant did the collection on the day of the accident to see how long it would take to fully load it. She thought there had been some trial runs and practice sessions before that, but did not know the details.

She said that there is a legal requirement to have a registered inspector for trucks, and she saw Trax’ website, which contained a range of services (including ‘All commercial vehicle servicing and repairs carried out … LOLER testing …’). She knew that Trax had been selected as appropriate.

In cross-examination by Mr Kennedy KC for Trax, Ms Parsons said that the vehicle had been at Seclands apart from when it had an MOT and been painted. She did not know at the time, but has since learned, that Trax did two inspections. She was not familiar with all the maintenance details but knew work had been done on the brakes and that it had had an MOT.

She said that the Claimant had been looking for training for best practice going forward. David Sippitts created a Google Calendar containing the transporter’s maintenance schedule. Google Calendar is an online a time-management and scheduling calendar service developed by Google.  It allows users to create and edit events.

In re-examination by Mr Killalea, Ms Parsons was shown the Google Calendar. It had various colour codes for the different status of maintenance tasks, eg, those marked in red were due, those in yellow were complete. I will return to this topic later.

The next witness was the Claimant’s father Andrew (Anthony) Carr, known as Tony. Again, I am grateful to him for his dignified and clear evidence.

He had worked with HGV vehicles for many years. He has no formal qualifications but lots of experience, although not with car transporters.

He was involved in the purchase of the vehicle with his son. The Claimant found ECM in Carlisle, who were a big operator. They went and looked at vehicles. They chose the one that they thought was the best set up at the time. The budget was £5000-£6000. The vehicle they bought seemed to be in a better condition than some of the others.

Tony Carr had gone with his son to make sure the vehicle was road fit, eg, that the tyres, trailer and brakes were satisfactory. They could see there were safety rails in place, and they had no reason to think there was anything wrong with them. They understood that the vehicle had been in regular use by ECM until recently.

In his statement Tony Carr made the following points: he did some preliminary work on the vehicle, but told the Claimant that Brands could not rely on him to do the maintenance because of his lack of transporter experience; it was obvious that the work would need to be contracted out; he knew that the Claimant was talking to an external transport manager about how to manage the vehicle; as well as an MOT, the vehicle required regular additional safety inspections every six weeks; he knew and trusted Trax, for whom he had worked on and off in the past on a freelance basis. He trusted Trax’s inspection reports, and thought the Claimant would have done also.

In cross-examination by Lord Faulks, he said that they had inspected the vehicle. It had new flooring and new hydraulic rams and straps, and good tyres. It looked well maintained. It had good paint work. They tested the raising and lowering of the ramps but did not drive on to it. He did not see the corroded guardrail pillars, but if he had done so, he would have said something.

After ECM had delivered the vehicle, he did some painting and other preparatory work on it.

When he worked for Trax, he did all sorts of work on a wide range of vehicles, but could not say if he had ever seen a transporter. He said he may have told the Claimant that Trax were ‘OK’ to carry out inspections, and would have said if he did not think that. He knew the Claimant was relying on Trax to carry out a detailed inspection of the whole vehicle.

In cross-examination by Mr Kennedy, he said there may have been some corrosion, but that did not mean the vehicle could not be driven. The Claimant was looking to him for advice and help because of his experience.

He said the Claimant had asked him to do the preparatory work; the MOT had been done by a company called Brindleys, at which he had been present; and the vehicle had been driven there by Steve Maynard, who was the next witness.

Mr Maynard said he had known the Claimant for a long time. The Claimant was his son’s best friend. Mr Maynard had been an HGV driver since 2006. He has a Class 1 licence. The transporter was covered by the licence, although he had not driven such a vehicle before. He confirmed he worked for Brands on a freelance basis.

He was shown the driver disclaimer (essentially confirming his competence to drive the vehicle) and confirmed he had completed it a few months before he accident. He explained that a separate form has to be completed for each company he works for.

He was shown an example of a defect log. He said he was not familiar with that particular form of layout. He confirmed that he would do a defect check on the vehicle he was due to drive every single day, which is what is required.

He was shown records of daily checks, and confirmed from August 2017 onwards until the accident he had driven the transporter on several occasions. (In fact, there was later tachograph evidence that showed he started driving a couple of months before that).

He said he thought the daily checks were the best record of when he had driven, because he always filled out a check form. He said his checks included, ‘Steering, indicators, brakes, lights, handbrake everything. Everything to make sure that the vehicle is safe to go on the road.’ He would check for loose straps as part of his inspection. He said carrying out checks was not a condition of his HGV licence, but was ‘more a condition of the companies that you drive for.’

Mr Maynard described (in his statement) his involvement on the day of the accident. It is not necessary to dwell on the details. He did not see the Claimant fall, but saw him on the ground, obviously badly injured. Mr Maynard called the emergency services. He could see the broken safety rail, and said that, ‘It seemed obvious that he had fallen through the railing and that it had not supported his weight.’ He was shown a photo of the broken rail, and said that if the rails had been hanging down when he inspected the vehicle, he would not have driven it.

In cross-examination by Lord Faulks. Mr Maynard agreed that daily checks are important, and that he had a ‘drill’ for his inspections, which would take 10 or 15 minutes. He would not drive an unsafe vehicle, and had refused to do so in the past.

Mr Maynard said there had been some practice runs before the day of the accident when cars had been collected. These had been to make such the transporter was driving satisfactorily. The evidence was slightly unclear whether cars had been loaded or unloaded on those previous occasions – Mr Maynard said they had been. He said that the Claimant was more experienced on actually driving the cars onto the transporter, which required spatial awareness. He found that aspect of the job difficult. He said a man called George had also assisted with the loading.

In cross-examination by Mr Kennedy, Mr Maynard said he would go up on the deck and check the safety rails. He said, ‘No one asked me to check handrails but I checked them anyway … I was near the handrails … a matter of feet away from the post that actually went’.

That was the case for the Claimant.

The First Defendant’s sole witness was David Sippitts. In many ways, he was the most important witness in the case.

He gave two witness statements: and first on 18 December 2020 to Brands’ solicitors, and the second on 3 January 2021 to the Claimant’s solicitors.

In his first statement he said he was contacted by the Claimant in April 2017 (in fact, it was more likely earlier than that, but nothing turns on exactly when it was – it was early 2017), and was engaged as Brands’ external transport manager on a rolling one month contract, for which he would render monthly invoices of £350.

He said his role as transport manager was to ensure that his clients understood their compliance requirements. For Brands, the necessary procedures were only just being put into place at the time of the accident.

He saw paperwork for inspections in July and August 2017, prior to the MOT on 29 August 2017, and then for an inspection by Trax on 18 October 2017. He said that that inspection had been done two weeks late, and he discussed with the Claimant the implications of not adhering to the inspection schedule. The vehicle was due for inspection again around 26 November 2017, but he did not see the paperwork for that because he saw the Claimant before it took place. He was due to see the Claimant again during the week of the accident but did not do so because of it.

He did not know who had done the July and August inspections.

He said at [11]-[12]:

I set out reg 9 of LOLER earlier. As I have indicated, in my view the minimum LOLER inspection period for the transporter was six months, by virtue of reg 9(3)(a)(i). My reasons are because the transporter was ‘exposed to conditions causing deterioration which is liable to result in dangerous situations’. It was exposed to the elements (and no doubt other environmental factors) liable to cause corrosion both when it was being driven on the road, and when it was parked outside. Further, whilst primarily designed for lifting cars, the transporter must also have lifted persons. On the day of the accident, the Claimant (or another driver, it matters not) drove the Skoda car up the transporter’s lower ramp from ground level so that it sat at height above the cab. The driver was lifted 14 feet into the air. This in my view was a lifting operation involving a person within s 9(3)(a)(i).

But even if I am wrong about that, and the minimum inspection period was 12 months, there still should have been a LOLER inspection not later than 4 July 2017 which, as I have said, would have identified the dangerous corrosion to the failed pillar.

In his second statement, Mr Sippitts provided further details about the work he did for Brands. He provides guidance for small operators and what they and their drivers are required to do by way of compliance

As an external transport manager, his was not a full time role for Brands. He would spend a couple of hours a week on its affairs. He did not know who was going to drive cars on and off the transporter.

He said that the Claimant was sensible and responsible and wanted the business to grow.

He explained by reference to [24] of his statement that the purpose of the six weekly inspections of the vehicle was, ‘to check it is above MOT standard’

He again reiterated that the Claimant did not know that he needed a LOLER inspection, and he (Mr Sippitts) had had to Google it. Such inspections were done by specialist companies. He said that Trax advertised that they did such inspections, although he had not dealt with them.

In cross-examination by Mr Killalea, Mr Sippitts said that working with the Claimant was ‘refreshing’ and that ‘he wanted to do the right thing’ although he lacked knowledge. His attitude was ‘exceptional’.

He said that he went to the Claimant’s house three or four times in order to advise him. The Claimant had limited experience. Mr Sippitts said he was ‘choosy’ about who he worked for. He said that sometimes operators had ‘no idea’, but in the Claimant’s case, he had done research, and Mr Sippitts said he thought that the Claimant had ‘wanted to do the right thing’. He said this attitude was ‘refreshing’, because a lot of operators ‘did not want to know’. He added that the Claimant had done over and above what he needed to do at the time.

He said to Mr Killalea that the Claimant did more than he needed to do because at the time (early 2017) the vehicle was not being used (as Mr Sippitts understood it). As I have already said, in fact, from Mr Maynard’s evidence is would appear that the vehicle started to be driven and loaded at some point in the period prior to the accident – likely from mid-2017 - however the tenor of Mr Sippitts’ evidence was that he may not have known that.

Mr Sippitts was taken to an email which he sent to the Claimant’s solicitor on 3 November 2018, nearly a year after the accident, and confirmed it was true:

To this Mr Sippitts added orally, ‘He was not cavalier or keen to cut corners – he was the opposite.’

Mr Sippitts agreed that being a transport manager is an important and safety critical role.

He had worked two to four hours per week for Brands, for which he charged £350 per month. He said that to become a transport manager a course needed to be passed, which had a low pass rate. He said that the Transport Commissioner regards a transport manager’s role as important. They have to be certified. He said the course was generally taken after industry experience on the job had been obtained.

Mr Sippitts was introduced to the Claimant by GVL Management Limited. He said that one of the things a transport manager does is to assist the operator to apply for an operator’s licence, which he said was an ‘involved’ process.

He was shown Brands’ operator’s licence, which was issued on 24 April 2017. He said the transport manager’s essential role was to check that things which should be done, were done, in relation to the licenced vehicle, and that is what he did with Brands and the Claimant. He created the Google Calendar showing when maintenance tasks fell due.

He said he had seen photos of vehicle, but it was not a type of vehicle he was used to. This this was the first car transporter he had been asked to manage.

He said that they started work on the maintenance schedule, and made sure that driver checks were in place. He had seen the MOT and the tachograph, and referred me to a blank defect log which the driver would fill in on his daily checks.

He said he was not told that the vehicle had been put into use. He explained that vehicles over 12 years old (as the transporter was) needed safety inspections every six weeks, at least as a starting point. He said although this figure was only a guide, an operator would be at risk if they left it longer and something went wrong.

Regarding the late inspection in October 2017, he told the Claimant that because the vehicle was not then being used, it would not affect his licence, but once the vehicle started to be used then he had to stick to six weeks.

This evidence conflicts with other evidence that, by then, the vehicle was being used. I cannot definitively resolve the conflict, but incline to the view, based on the documents and Mr Maynard’s evidence, that the vehicle was being driven and, on occasion, loaded, from mid-2017 onwards.

Mr Sippitts said he was satisfied that apart from this, the Claimant had done everything, but he never got to see a LOLER inspection done.

That was the end of the first day’s evidence.

At the beginning of the second day, Mr Sippitts showed me p543A, the Google Calendar, which he created for Brands to set out the required maintenance and inspection schedule for the transporter. The Claimant had access to the Calendar. Maintenance tasks were entered on the Calendar (eg, the six weekly inspections), with a colour coding scheme to show whether the task in question was pending (such entries were coloured red); whether the task had been completed (when the colour was changed to yellow); and whether Mr Sippitts had seen the appropriate paper work in relation to the task (when the colour was changed to green.)

The requirement for a LOLER reg 9 inspection no later than 4 July 2017 (at the very latest) was not entered on the Calendar. As I will explain in detail later, I find that if it had been, given the Claimant’s conscientious attitude, he would have had such an inspection carried out and, as I have already said, this would have prevented the accident.

Mr Sippitts then took a specimen application form to be added to an operator’s licence as transport manager. It is form TM1, issued by the Office of the Traffic Commissioner. This does not specifically refer to Brands, but I assume an identical form for it was completed by Mr Sippitts.

Of very considerable importance for present purposes is the following, which stated under [13A], ‘Transport manager’s declaration’ (emphasis in italics added):

Mr Sippitts said he would ensure monitoring of driver reported defects by looking at the defect book. This was cross-checking: if a defect was raised it would have been reported to the Claimant, who would be responsible for sorting the defect and recording it on the defect log.

He was then taken to a Technical Review Report prepared on behalf of Trax by Arc Investigations. He noted from p304, [4.8], point 1: – that a driver has to carry a daily walk around check; point 8: the system of safety inspections must be regularly monitored, especially in the early stages. He said (15 February 2022, p8):

Mr Sippitts added that there had to be positive checking by him that there had been compliance with the requirement for presenting the vehicle for regular inspections and that the driver was doing his daily checks.

He then dealt with aspects of his own career. He qualified as a transport manager in 2008, and took on the role with DHL in 2013. Brands was his first car transporter. He said that although from a compliance perspective, there was no difference between this and other vehicles, there were height implications to be considered, eg, that the vehicle was not driven into a bridge which was too low. There was this exchange (p11):

Mr Sippitts said that on 24 March 2017 (so around the beginning of his engagement by Brands) he asked for a number of documents, including the vehicle and trailer MOT, and also the LOLER certificate. He said that he could not recall when he received them, but thought that he saw them on his next visit, some weeks afterwards. He took a scan of the MOT in August 2017. He said he asked for the LOLER certificate because he knew the transporter had been, and would be, used for lifting loads.

The LOLER certificate at p492 is entitled ‘Statutory Thorough Examination in Accordance with LOLER’. It is dated 5 July 2016 and was completed in-house at ECM. The vehicle was passed. Item 26 was ‘Hand rail posts, bases and cables’, and was ticked as a ‘Pass’. The date of the next examination was given as 4 July 2017. As I have said, I think that reg 9 of LOLER, for this vehicle, in fact required inspections no later than every six months, ie, no later than 4 July 2017, but in any event the transporter should have been inspected well before the accident.

Mr Sippitts knew that for some lifting equipment an inspection is required every six months, whereas for other equipment it is 12 months. He was shown a report from a Mr Clarke of Hawkins, prepared for Brands for this case. Mr Sippitts said that his ‘take’ on the regulations is that they required 12 monthly inspections, but he would have advised on six months. However, he said, ‘I am not a health and safety adviser’. He said he would always err on the side of caution.

Despite that disclaimer, he candidly admitted that: (a) he knew the vehicle needed a LOLER certificate; (b) it could be driven legally, but needed a LOLER certificate in order to carry out lifting work. He said this was a concern, because the transporter was an inherent part of the vehicle.

He said that the discussion he had with the Claimant about LOLER took place at the Claimant’s house. He had told the Claimant to talk to ECM about LOLER inspections. He said that the Claimant told him that ECM had said that the minimum inspection period was six months (despite what was on the LOLER certificate to the contrary), meaning that its next inspection after July 2016 was no later than January 2017.

However, Mr Sippitts said that because the Claimant was not using the vehicle, ’there was no immediate rush’. ECM were happy with 12 months.

There was this exchange (15 February 2022, p18 et seq). Mr Killalea put part of the statement Mr Sippitts had made to Brands’ solicitor to him:

Later he said (pp22-23):

He was shown the transporter manufacturer’s Guidance Manual at p845: ‘LOLER Inspection Guidelines’. He said that he had not seen this document before. They state they are intended to assisting in achieving compliance with reg 9 of LOLER, which I set out earlier.

Mr Sippitts said that it ‘had not occurred’ to him to see if there were other extra checks that were needed on a car transporter.

He was asked whether it had occurred to him to do additional and daily checks. He said no, he used the standard book issued by Road Haulage Association which had been used for many years.

He was then shown (at p25) p376, the manufacturer’s daily safety checks in the ‘Transporter Engineering EVO Range Transporter Drivers Manual’. This has as one of the said daily safety checks:

He said that he had also not seen this document before. If he had seen it he would have expected additional training to be given to the drivers, and would have advised the Claimant to take advice about these checks.

He confirmed again that he had heard of LOLER, and was asked whether it had occurred to him to obtain manufacturer’s guidance to see what differences there were in relation to transporters as compared with other HGVs. He said that, ‘with hindsight’, additional training for the driver would have been helpful and sensible. He said that he was aware of additional requirements due to the nature of the vehicle.

He said the Claimant had more knowledge of vehicle transport than he did. He never gave the impression that he was experienced with car transporter. He was there to make sure Brands complied with its operator’s licence.

Mr Sippitts told the Claimant it was his first car transporter. The Claimant knew he did not have experience of lifting. If he had been aware of additional manufacturer’s recommendations he would have advised on additional daily checks.

Mr Sippitts was then cross-examined by Mr Kennedy (15 February 2022, p29, et seq).

He said that he knew at the beginning the Claimant was not doing anything for hire or reward. He knew he was having the vehicle painted. The Claimant said he would let Mr Sippitts know when he got his first paying job.

Mr Sippitts said that if he had known the vehicle was being driven with cars for 2000 miles (the trial runs which I mentioned earlier, which were evidenced in the documents), then from an operator’s licence point of view he was compliant, but he would have wanted to make sure the Claimant was doing the right thing.

He said he would not have been happy about transporter being used as such given the out of date LOLER certificate, but again it was ‘really not my remit’. The full exchange was this (p31):

In re-examination he was shown evidence from an expert showing that the vehicle had been driven some 1392km, between the MOT on 29 August and 18 October 2017, the date of the first Trax inspection. The tachograph disc information for the driver Steve Maynard indicated daily mileage had been between nine and 204km, in June, July and August 2017. He said it was the first he knew of it. He also said (in reference to Mr Maynard’s evidence that cars had been loaded and unloaded (whether for reward or not) prior to the day of the accident) that he had not been aware of that either.

That was the case for the First Defendant.

Trax’s first witness was Keith Simpson, its former director. He said that Trax is no longer active as a company. The company carried out vehicle repairs for vehicles of 3.5 tonnes and above. At the time there were three mechanics. He had 35 years’ experience at the time.

He was involved in management, administration and working on vehicles. Trax carried out work before and after MOTs, but did not do the MOTs themselves. They did about 20 inspections a month.

He had a working relationship with Tony Carr, who he would sometimes hire as a sub-contractor when they were busy.

He met the Claimant through Tony and eventually agreed a maintenance contract for the six weekly inspections, which was one of the requirements for Brands to be granted an operator’s licence. The agreement was signed on 23 January 2017.

The Claimant did not make contact until October 2017, and an inspection was then carried out at Secland. Mr Simpson attended with an apprentice, who carried out the inspection under his supervision.

At [23]-[24] of his statement Mr Simpson said this:

He then set out what an inspection did involve. It involves checking for roadworthiness. They would start inside the cab and check: the handrail and steps getting into cab; seat adjustment; seatbelts; windscreen and steering and controls and switches and brake system; and then check that the warning devices are operational. Then they would walk around the vehicle and carry out further checks. Then there would be an inspection underneath, including of brake pads and checks for leaks

A second inspection was carried out in November 2017 by a Trax mechanic called Josh Wheeler. Mr Simpson reviewed his inspection sheet and prepared an invoice.

At [36] he said:

In relation to Trax’s former website, which made reference to LOLER inspections as being one of the services it offered, Mr Simpson said that if a customer required such an inspection, it would have been outsourced because they were not qualified to do them, and this would have been done with the customer’s express agreement.

He concluded at [39]:

This is a reference to Item 20 on the November Inspection Report completed by Josh Wheeler. This referred, under the heading ‘Trailer Inspection’, to ‘Condition of body including Grab Handles and Safety Rails’. The format of this Report is completely different to the one which Trax completed following the October inspection. On my (admittedly very poor) copy of that report I cannot see any similar such reference on the October form. There was no evidence about how or why this change in format of the pro forma Inspection Report came about. Mr Simpson’s evidence was that it was a generic downloaded document.

Mr Simpson was then cross-examined by Lord Faulks for Brands.

He was referred to the website and said it was a ‘broad description’ of the work Trax did. He said 99% vehicles are the same. There might have been some specialist vehicles or items of work they could not do, but they could do the majority of vehicles.

Trax was formed in 1999. He considered Tony Carr to be a friend, to whom he gave work and who helped him out when Trax were busy. When the Claimant was setting up his business with a small recovery vehicle, he sent work to the Claimant.

He agreed that there was quite a long gap between signing the agreement with Brands for inspections and the first inspection. He said that at the October/November inspections at Seclands no-one from Brands was there. The vehicles were outside.

He was asked about [24] of his witness statement, which I set out earlier. He said that the did not know if the transporter had a LOLER certificate or not, but he knew that it would need one.

He then said (15 February 2022, p46):

He reiterated his maintenance agreement was just for roadworthiness inspections (and not LOLER inspections).

He said that he did not offer the Claimant any advice. But if the Claimant had asked him whether he needed a LOLER inspection, Mr Simpson would have said yes. He added (p47):

In relation to the website, and its reference to LOLER inspections as one of the services Trax offered, it was put to him by Lord Faulks that, ‘but you don’t offer them.’ Mr Simpson replied (p48):

He said that he recalled the transporter. He was shown some of the post-accident photos, including of the pillar that had failed. He said that if a customer had brought in the vehicle in that state, he would not have ignored it.

He was asked about corrosion in the context of roadworthiness inspections. He said they checked for visible corrosion; check brake components for heavy corrosion; and cracks in the chassis. He said all the corrosion they would check for was underbody and components on the vehicle and around the sides.

He said corrosion was only checked for from underneath. He said that from the ground he could only see the tops of the pillars on the top deck, but not the base or the welding.

He said that they could inspect safety rails without going to height, at least in order to see if anything was hanging off.

He said from his inspection point, regarding the upper deck pillars, he would be able to see the tops, but not the bottoms. He added in relation to figs 11 and 12, pp467 and 468:

He was asked about the bulge under the plastic sheaf in one of the pillars (not the one which failed) (15 February 2022, p54):

He said that he did not know who had done the welding to the pillar, but it had not been done properly because it had been done in such a way that a ‘cup’ for water had been created. (No-one suggested this allegedly defective welding played a role in the accident. The point of failure in the corroded pillar was further up).

Mr Simpson was then cross-examined by Mr Killalea.

He agreed he would not advise customers about LOLER. He was asked about transport managers and LOLER:

He was shown [36] of his witness statement, where he said, ‘At no point during arranging the maintenance contract before the inspections, were we asked to inspect the upper deck of the trailer?’ (15 February 2022, p59):

There then followed this exchange with Mr Killalea:

He was shown the letter of claim sent by the Claimant’s solicitors, alleging that there had been a failure by Trax to carry out an inspection of the guard rail which was safety critical equipment which required Trax’s careful consideration as part of its vehicle inspection. He said, again, that they would inspect grab handles and safety rails at floor level, but did not work at height.

Finally, he was shown the November inspection report which referred to ‘safety rails’ and said this was just a generic form which was downloaded and intended to cover a wide variety of vehicles.

The next witness for Trax was Joshua Wheeler, who formerly worked for Trax as a mechanic (15 February 2022, p65).

He worked at Trax between 2015 and 2018 carrying out general repairs and safety inspections. After an inspection he would give Keith Simpson his job card and inspection sheet and verbally report any major defects, which would then be passed by Mr Simpson to the customer for further instructions.

He inspected Brands’ vehicle at the lorry park on 29 November 2017. Nobody was present from Brands. The inspection was to ensure the vehicle was roadworthy and done to the same standard as an MOT. A full inspection involves inside and outside the cab, underneath the vehicle, and there is also a walk around. He said, ‘At no time are we required to check the upper deck of the vehicle. We would require specialist training and equipment to inspect the upper deck.’ Also:

Mr Wheeler could not remember if there were any major faults revealed by his inspection, but if there had been, he would have reported them on the Inspection Form. His inspection took one to two hours and he gave the completed inspection form to Mr Simpson.

He now works for Scania carrying out inspections, which again are all done at ground level, and the upper deck is not inspected. The only time he goes on to the top deck is if a customer has asked for grease points to be greased. This is charged for separately as it does not form part of the inspection.

In cross-examination by Lord Faulks he said that before November 2017 he had not inspected a transporter before, that he could recall. He had inspected wide variety of HGV vehicles. He had done a couple of recovery trucks and had looked at few trucks with lifting apparatus.

He said he examines more transporters in his current role at Scania. The upper deck does not form part of an inspection. He says he is standing for part of the inspection. So at ground level he is looking for things which might falls off, and so make the vehicle not roadworthy.

Some of the vehicles he inspects are quite old. He looks for corrosion at ground level, which might involve lack of road worthiness.

He said he knows LOLER exist, but did not know about them in detail.

That was the end of the live evidence on behalf of Trax.

Mr Kennedy also relied on the evidence of Phillip Harrison of the DVSA. His statement s dated 8 January 2021 and was taken as read. It exhibited his statement of 6 September 2020.

In summary, Mr Harrison said that he was a trained motor vehicle engineer with 40 years’ experience in the transport industry. He is a heavy vehicle technical officer with the DVSA providing technical advice. His statement dealt with the requirements of the six weekly routine safety inspections as part of the undertaking of an HGV operator with a licence. The main requirements of the inspection are highlighted in ‘The Guide to Maintaining Roadworthiness’ (November 2018 Edition in Section 4 and Annex 4A) of that edition. He said:

As I have already indicated, there was a quantity of expert evidence from experts instructed by the parties. I had reports from Mr Rawden (engineer) for the Claimant; Mr Clarke (engineer) for Brands; Mr Botham (engineer) for Trax; and Mr Balderstone (vehicle inspection expert) for Trax.

I also had joint statements from Mr Rawden and Mr Clarke, and from Mr Balderstone and Mr Clarke.

There was also a report from the HSE’s Mechanical Specialist Group, ‘The failure of a guard rail on a car transporter’ dated 12 July 2018. For some reason the author’s name has been deleted, so I will just refer to this as the ‘HSE Report’.

Whilst there were minor areas of disagreement, these were not such as to require the calling live of any expert witness. The following is a summary of the main points of the expert evidence.

Beginning with the HSE Report, the headline summary was as follows:

At [4.1]-[4.2] the writer said:

After citing various health and safety regulations, HSE guidance, and the transporter manufacturer’s manuals (some parts of which I referred to earlier), the writer concluded at [4.13] that the vehicle had not been ‘adequately inspected or maintained, as described in available benchmarks and guidance.’

Turning to the parties’ experts, Mr Rawden referred ([6.10]) to the inspection by Trax on 29 November 2017 when the very heavy corrosion of the relevant section of the guard rail pillar would have been present. He said that:

He also referred at [7.4] to the reference at Item 20 of the November Inspection Report, ‘Condition of body including grab handles and safety rails’. This, in his view, could have included a trailer rather than the rigid element of the vehicle.

Mr Clarke said at [7.10]:

At [8.2.1] he said:

From this evidence, as I have already indicated, I am entirely satisfied on a balance of probabilities that a timely reg 9 LOLER inspection (ie, no later than 4 July 2017) would have identified the corroded – or corroding – pillar. Even though I am no more expert in corrosion that Mr Clarke, I have extensive photos of the corrosion and it is obvious that in July 2017 the corrosion must have well set in, so that it would have been obvious to an expert LOLER inspector, who would have identified and rectified it. There is also the fact of the unexplained bulge in another pillar beneath the plastic sheath, which would have put the inspector on notice that all was not well with the upper deck safety rails and pillars, and that they therefore needed to be carefully examined.

At [8.5.3] he added:

Mr Botham (for Trax) referred to the need for LOLER inspections and referred to Mr Sippitts’ evidence. On that basis, he suggested the Court might conclude that the Claimant was aware of the requirement for further safety inspections over and above those roadworthiness inspections which would be standard. It was his view that the contractual agreement between Brands and Trax did not extend to conducting any form of safety inspection of the car transporter structure and specifically the safety rails. In his view the driver should have checked the security of the deck rails as part of initial daily checks. His conclusion was that had the Claimant and Brands Transport adopted an adequate approach to vehicle safety, then the accident would have been prevented.

Mr Balderstone’s conclusions included that: there was no contractual agreement between Brands and Trax to inspect the safety rails; Brands was under an obligation to have them inspected; the LOLER inspection was due no later than 4 July 2017 (as I have said, I disagree: the period was no less than six months from 5 July 2016); the driver safety checks should have taken in the rails; no adequate safety checks of the rails were conducted; had the Claimant and Brands adopted an adequate approach to vehicle safety and conducting thorough appropriate examinations, the accident could have been prevented; failings by Brands led to the corrosion advancing unseen and undetected.

In the joint statement of Messrs Rawden and Clarke they agreed on a number of things. Firstly that the term ‘condition of body including grab handles and safety rails’ would apply to the section of the transporter attached directly to the tractor unit. They agreed that the Trax inspections would have been from ground level and therefore not rendered the inspector capable of seeing the corrosion of the failed post. However they considered that the corrosion around the base of the post on the transporter body and the socket would have been visible and a cause for concern and should have been noted and perhaps elevated for further inspection.

The joint statement of Messrs Clarke and Balderstone showed there was agreement in relation to the need for a LOLER inspection and the likelihood of such an inspection revealing the damage to handrail posts. As to the Trax inspection, they agreed that it was highly unlikely that an inspector would observe the structural corrosion to the handrail post during a visual only inspection at ground level. Where they disagreed was as to the large area of corrosion on the transport body at the base of the failed post and on the socket of the failed post, both of which are not the parts of the handrail system that ultimately failed but perhaps should have been an indication of the possible poor condition of the hand rail system. Whilst Mr Clarke thought that this was a matter that should have been raised by an inspector, Mr Balderstone took the view that the corrosion observed related to the surface not structural corrosion and that it was unrelated to the failed handrail post. None of the experts take issue with the report of the Health and Safety Executive after the accident.

The experts left it to the court to determine whether the entry on the inspection report nonetheless amounted to an indication of its safety (see joint report Clarke/Balderstone ([5.7]). The significance of the entry has been explained - it related to ground level grab handles and rails. No evidence has been adduced that it was understood differently.

Mr Clarke and Mr Balderstone disagreed as to whether an area of corrosion unrelated to the accident was an indication of wider corrosion which should have been raised with the Claimant/Brands, perhaps thereby setting off a train of inquiry [6.1-6.2]. Mr Clarke expected that an inspector would have raised concerns, but Mr Balderstone disagreed that it needed to be reported at all, considering the corrosion not only unrelated to the failed post, but also surface rather than structural corrosion and outwith the DVSA criteria.

Mr Simpson was cross-examined on this. He was clear that if there was an obvious defect at height, such as a pillar hanging off, he would not ignore it. The relevant area was not however part of his inspection and he only had a partial view of it. He was limited to what he could see. He did not accept the validity of Mr Clarke’s position or that the state of the corrosion on the transporter was something he could reasonably have been expected to identify and take action about. It is in any event a somewhat speculative line of criticism removed from the actual problem which should have been identified by the inspection intended for that. The transporter properly passed its roadworthiness inspections.

The following is a distillation of the parties’ cases.

The accident was immediately caused by the failure of the corroded guard rail pillar, as found by the HSE and confirmed by the experts. The accident happened because of negligence for which Brands is responsible in law. LOLER, PUWER and WHR applied to Brands and to the work being carried out by the Claimant at the time of the accident.

In relation to the duty owed by Brands, whilst civil liability is excluded for the breach of these Regulations by reason of s 69 of the Enterprise and Regulatory Reform Act 2013, they assist in defining the common law duty which Brands owed to the Claimant.

The negligence by Brands included (Amended Particulars of Claim (APOC), [8]): (a) the failure to provide proper plant or equipment because of the defective safety rail; (b) the failure to ensure that all work equipment was so constructed as to be suitable for the purpose for which it was provided (reg 4, PUWER); (c) the failure to ensure that the guard rails on the transporter deck were maintained in an efficient state, in efficient working order and in good repair (reg 5, PUWER); (d) the guard rail was not of sufficient strength and rigidity for the purpose for which it was being used, and any structure or part of a structure which supports means of protection or to which means of protection are attached were not of sufficient strength and suitable for the purpose of such support or attachment (reg 8 of the WHR, and [2] and [4] of Sch 2); (e) failure to ensure the upper decks of the transporter were inspected so as to comply with LOLER (regs 4 and 9, LOLER)

Paragraph 8(vii) alleges breaches by Mr Sippitts, who is averred to have been Brands’ servant or agent. It is said he: (a) failed to devise, institute or enforce a proper system of inspection and/or maintenance and/or repair of the hand rails/guard rails on the transporter; (b) failed to take any or any adequate steps to ensure that LOLER were complied with. He had seen the expired LOLER certificate and knew that a LOLER inspection had to be carried out and was overdue; (c) failed to notify or advise the Claimant that a LOLER inspection had to be carried out in order to ensure that the vehicle was legally compliant; (d) failed to exercise proper care and skill in and about the ‘transport compliance’ document that he provided to Brands which was sent to the Claimant on or about 16 February 2017, which listed what needed to be done to ensure vehicle compliance but made no mention of LOLER; (e) failed to exercise proper care and skill in and about the setting up of a system of inspection and/or maintenance and/or repair of the transporter trailer; (f) failed to heed and act upon the manufacturer’s transporter maintenance manual, [2.3], which referred to the hand rails being ‘an important part of the vehicle’s safety equipment’ which should be ‘inspected at regular intervals to check for damage or deterioration in posts, cables and sockets … it is in the driver’s own interests to include the hand rail system in the daily walk checks’; (g) failed to notify the Claimant or Mr Maynard of this guidance; (h) failed to heed section 7 of the same manual about the need to check for corrosion; (i) failed to exercise proper care and skill in his engagement/employment as transport manager.

Paragraph 10 alleges breaches by the (then) Second Defendant, Trax, however, as I said earlier, proceedings against it were later discontinued, and it is now subject to a claim by Brands for an indemnity/contribution in the event that I find Brands liable.

Amplifying his case, Mr Killalea said that it was not in dispute that there was no valid LOLER certificate in force at the time of the Claimant’s accident, and a reg 9 LOLER inspection should have taken place no later than five months before the accident. A timely inspection would have identified the defective pillar and prevented the accident.

Mr Killalea said that: Mr Sippitts had been negligent; that his negligence was causative of the accident; that Brands was responsible in law for that negligence; and it is therefore liable to the Claimant for his injuries. Brands’ liability was advanced on a number of different bases.

Firstly, the duty owed by Brands to the Claimant was non-delegable because he was an employee. Thus, even if Mr Sippitts was an independent contractor and not an employee (or akin to one), and so there was no vicarious liability on the part of Brands for his fault (as there would have been had he been an employee), Brands was, nonetheless, liable for Mr Sippitts’ acts or omissions in the course of his role as transport manager.

In support of this submission, Mr Killalea referred me to Woodland, [7], [13] and [22], which he said followed a long line of well-established authority, eg, Cassidy v Ministry of Health [1951] 2 KB 543, 363. He also referred me the commentary in Charlesworth & Percy on Negligence (14^th Edn) (as supplemented), [7.92]-[7.94] and [7.97]-[7.98], [7.100], [7.101], and [7.105].

Second, the role of transport manager of a road transport company like Brands was so central and fundamental to the existence and operation of the company (the company would not be permitted to operate without one) that Mr Sippitts had to be regarded either as an employee - or at least in a relationship akin to employment - so as to render Brands vicariously liable for his negligence.

Third, Brands is also liable for any established causative negligence/fault on the part of Mr Sippitts by virtue of s 1 of the 1969 Act. Whilst it is correct that the Claimant was Brands’ sole director, it is not correct that he was the only person through whom it could act. Mr Sippitt was engaged in advisory and in practical roles relevant to compliance with the company’s legal obligations and in law was responsible for his actions.

In response to Brands’ plea of contributory negligence, Mr Killalea said there was no basis for such a finding. All the evidence showed that the Claimant had been careful and conscientious and would not have ignored an obvious danger. I should reach the conclusion that he relied entirely on Mr Sippitts.

Developing his case in his closing submissions, and responding to Brands’ case relying on Brumder, Mr Killalea said that case did not defeat the Claimant’s case. It was an extreme case which was distinguishable. The claimant, Mr Brumder, was sole director of the defendant company (and not an employee) and was injured at work as a result of health and safety failures for which he himself was solely responsible. He had totally abrogated his health and safety responsibilities. The Court of Appeal held he was not entitled to recover, because to do so would infringe the principle that a person cannot derive any advantage from his own wrong. Mr Killalea said that the Brumder defence was strictly applied and only narrowly available to an employer. In the case before me, the accident was not solely the Claimant’s fault (if it was at all), and so Brumder did not apply.

With regards to the claim under s 1 of the 1969 Act, Brands had pleaded in response that: (a) the Claimant was not an employee. He was self-employed, alternatively was employed by himself through the company he owned and operated (9.1 and 9.2); (b)

Mr Killalea said that the issue for the Court to determine here was whether the Claimant was Brands’ employee. ‘Employee’ is defined in s 1(3) of the Act as being, ‘A person who is employed by another person under a contract of service.’ If the Court finds that the Claimant was an employee under a contract of service, which Mr Killalea said he clearly was, then this is the end of Brands’ argument.

Brands next contends that the Claimant was not provided with equipment by his employer. To this, Mr Killalea submitted that he plainly was: the car transporter was purchased by Brands, which was the registered keeper (and owner) of the vehicle. The Claimant was not the owner. The equipment was therefore provided by the Claimant’s employer.

Next, Brands contends in the alternative that if it did provide equipment, it was in circumstances where the real and true provision of the equipment for use by the Claimant was by the Claimant himself. To that the Claimant simply responds that Brands is a separate legal entity from the Claimant, and that was not defeated by the fact he was the sole director through whom the company acted: Lee v Lee’s Air Farming Limited [1961] AC 12, 26-27.

Next, Brands says that the defect was not attributable wholly or in part to the fault of the third party but was attributable wholly to the conduct of the Claimant. The Claimant responds by saying that the safety rail was plainly defective and this was as a result of Mr Sippitts’ failures, and not wholly the fault of the Claimant. Further, the fact that Mr Sippitts was an independent contractor (and irrespective of the Court’s finding on the issue of non-delegable duty) brings him squarely into the definition of a ‘third party’ in s 1(b) of the 1969 Act.

In relation to contributory negligence, the Claimant submits I should make no such finding, or if I do, then it would be just and equitable to apportion most of the blame onto Brands because of Mr Sippitts’ fault.

Brands initially denied that the Claimant was an employee of Brands, however in post-hearing submissions it accepted that he was (albeit with an unsigned contract), but, it was as a manager, and he was the only person employed to do transporting work and was responsible for providing and maintaining the transporter and the safety equipment on it. The notional duty owed to him qua employee was through him as the alter ego of Brands. In the light of Brumder, therefore, he was not owed a duty. The position would have been different if a claim had been brought by an ordinary employee.

The common law duty of care owed by an employer to an employee is well established, viz, to provide a safe system of work, including safe equipment. The various health and safety regulations inform the nature of the duty of care, but are no longer actionable per se (see above).

Lord Faulks put Brumder at the heart of Brands’ case (as had been anticipated at an early stage in pre-action correspondence). He said that the Claimant’s claim was defeated because, on the principles discussed in that case, he was seeking to take advantage of his own wrong. It was clear that Mr Sippitts had drawn the Claimant’s attention to the need for a LOLER inspection at an early stage in 2017, but the Claimant had not arranged one, and was therefore solely responsible for what then occurred.

In relation to the claim against Brands on the basis that the Claimant was owed a non-delegable duty of care by Brands, this failed in the light of Brumder and, in particular, in the light of Lord Diplock's test in Boyle v Kodak Ltd [1969] 1 WLR 661, 672-673, referred to in Brumder at [30].

Lord Faulks said it was clear from Lord Sumption's judgment in Woodland, [13], that the Claimant's position was nothing like that of a vulnerable claimant to whom a non-delegable duty may be owed. Such a claimant is reliant on the employer (or other defendant) to take appropriate steps to ensure their safety.

In this case the Claimant did not place himself in the charge, custody or care of Brands. Rather, he was responsible for the condition of the transporter on which he was working. He was Brands. The putative non-delegable duty would thus, on the Claimant's case, be a duty owed by him to him. This, said Lord Faulks, was ‘hopelessly circular’, and fell foul of Brumder.

Lord Faulks submitted that in so far as LOLER, PUWER and WHR applied to Brands, it was the Claimant’s personal obligation to ensure that Brands complied with the obligations set out in them. The regulations applied to him as an employee. Any negligence was brought about by the Claimant’s personal failures by which he caused and/or permitted Brands to be negligent. None of Mr Sippitts’ alleged failures can be attributed to Brands because he was an independent contractor.

Brands therefore submitted that the Claimant acted in breach of the duty upon him as an employee, and that his claim was defeated on the basis of Brumder because the accident was solely his fault. To succeed in this claim the Claimant would have to establish a failure to exercise the relevant care, skill and diligence by the company. However, such a failure can only have been the Claimant’s own failure.

Although in the Amended Particulars of Claim Mr Sippitts was described as a ‘servant or agent’ of Brands, it was now no longer contended that he was. The Claimant accepts that Mr Sippitts was at all material times an independent contractor. In those circumstances, any fault on his part would not result in Brands being vicariously liable. Lord Faulks said that was the fundamental difficulty about the case as against Mr Sippitts on the basis of vicarious liability - he was never an employee of Brands but was an independent contractor who invoiced the Brands for his work. Brands was just one client of his. The Claimant’s case against Brands on the basis that Mr Sippitts was ‘akin to an employee’ therefore failed on the basis of Barclays Bank Plc.

Mr Sippitts owed Brands a contractual duty to carry out his duties as an external transport manager with reasonable care and skill. He fulfilled that duty. He was not at fault. The scope of his duties was to ensure the roadworthiness of the transporter. He did that. LOLER inspections were outside his field of expertise as a transport manager and beyond his responsibilities. Even if (which Brands denies) he was obliged to remind the Claimant of the need for a LOLER inspection, his unchallenged evidence was that the Claimant was aware of the need for such an inspection, but he had failed to get one done. And this was despite using the transporter quite extensively in the months before the accident, including driving cars on to the upper level of the vehicle. Hence, Mr Sippitts was not in breach of any duty and carried out role properly.

In response to the claim under s 1 of the 1969 Act, liability is denied on the basis that: (a) the Claimant was not an employee; (b) he was not employed by another person, but was employed by himself through Brands; (c) he had not been provided with equipment by Brands, but by himself, through the company which he owned and/or directed; (d) alternatively, if it was, the ‘real and true’ provision was by himself; (e) the fault was wholly attributable to the Claimant, not a third party (wholly or in part); (f) in so far as the defect was due to the said fault on the part of a third party, any deemed negligence was that of the Claimant, who was self-employed or his own employer; (g) insofar as he seeks to claim against Brands, he would be claiming against himself; (h) at all times the Claimant as his own employer (or effective employer) was responsible for providing himself with non-defective equipment.

Finally, in relation to contributory negligence, as pleaded in [11] of the Amended Defence, the Claimant had been negligent in a number of ways, and so Brands contended that I should find contributory negligence to the level of 100%.

Brands’ Notice of Additional Claim against Trax is dated 27 January 2020. In the event (contrary to its primary case) that it is found to be liable to the Claimant, Brands claims a contribution from Trax under the Civil Liability (Contribution) Act 1978, on the basis that Trax failed to exercise proper care and/or skill in and about the carrying out of the safety inspections of the transporter and trailer in October and November 2017.

Lord Faulks said that Trax’s duty encompassed ensuring that the vehicle was safe and roadworthy and carrying out the appropriate checks to ensure it met those standards. The duty in tort would be owed to anyone foreseeably affected by any failure on Trax's part, such as the Claimant or any user of the vehicle, or any other road user.

Brands’ claims against Trax therefore focusses upon the scope of the inspections which were carried out; what was or should have been visible from those inspections; and whether (as advertised on their website) Trax had familiarity with and/or capacity to carry out LOLER inspections.

Lord Faulks said that the pillars and railings on the upper deck should have been included in Trax’s inspections. There were no other features of the transporter which fitted the description contained in the November inspection sheet. A check of these features, even of a rudimentary nature, would or should have shown their corrosive and unstable character.

Further, in the light of Trax's knowledge of the Claimant's lack of experience and because they advertised the service of carrying out LOLER inspections (albeit only apparently included on the website for marketing reasons), they should have directed the Claimant/Brands to the need for a LOLER inspection as a matter of legal requirement, given its age and the lifting purpose for which it was to be primarily used. If Trax could not do the work itself (despite the impression on the website), it should have recommended an appropriate company to carry out such an inspection.

Brands relies upon some of the expert evidence, for example, the opinion of Mr Rawden for the Claimant, to the effect that the corroded pillar should have been identified by Trax at its inspection in November 2017 (when the corrosion would have been present) (1/146, [6.10]):

Mr Clarke, the engineer instructed on behalf of Brands, took the view that even with a visual inspection the significant corrosion around the front nearside guard rail post would have been evident and that on seeing the corrosion, he would expect the inspector to have raised concern about its condition.

Before it was discontinued, the Claimant’s case against Trax was that the vehicle safety inspections it undertook on the transporter in October 2017 and November 2017 were undertaken negligently. In particular, the Claimant relied on the fact that following the November 2017 inspection. Trax had ticked the ‘Serviceable’ box on its Trailer Service and Inspection Reports under the heading ‘20. Condition of body including grab rails and safety rails’. These ticks, the Claimant said: (a) amounted to representations as to the safety of the peak deck; (b) which were false; (c) were made negligently, and (iv) which (implicitly by virtue of the allegation of a causal link) were relied on by the Claimant and Brands as indicating that the peak deck was safe to use.

In its Defence to Brands’ claim dated 12 February 2020, Trax adopted its original Defence dated 14 January 2020 to the Claimant’s discontinued claim. This was to the effect that: (a) the Claimant’s claim was effectively against himself; (b) the inspections carried out by Trax on the vehicle pursuant to its written agreement with Brands were as to roadworthiness only, and not the safety of those working on the vehicle. The criterion for failing a vehicle was (in summary) something which would cause an imminent danger to other road users. Accordingly, the safety rails were not part of this inspection. The obligations imposed by LOLER placed obligations on Brands, and hence the Claimant. There was no LOLER inspection done by the (latest) due date of 4 July 2017.

Trax denied its October and November 2017 inspections were negligent. It only conducted a ground level inspection. It denied that the state of the safety rail was included in its inspection.

Other matters were pleaded which I do not need to go into.

Trax’s case can therefore essentially be summarised in the propositions: (a) that it conducted the inspections it was asked to do properly; and (b) it was not under a duty to do anything further.

In his submissions, Mr Kennedy took me in detail through the evidence. He said there could not be any serious dispute but that one or both of the Claimant and Brands had obligations to ensure the safety of the transporter when work was being done on it. There was agreement amongst the experts that the transporter’s lifting equipment, including the handrails, should have been subject to a periodic inspection under a LOLER regime, and no later than 4 July 2017, and that had such an inspection been conducted when it should have been, the unsafe condition of the post would likely have been identified.

He said the thrust of the expert evidence, in particular that of Mr Clarke and Mr Balderstone and [5.3] and [5.4] of their joint report, was that the safety rails were outside the scope of the roadworthiness inspection which was conducted a ground level. Absent specific agreement therefore, the relevant handrails and posts are outside the scope of the roadworthiness inspection.

The central part of Trax’s case was that it had never made any representations to the Claimant that it would inspect the upper levels of the cab or trailer, nor was it under a duty to do so. It did not have the equipment to do so. The Claimant (and his father, who worked on a freelance basis for it) knew that was the case.

Drawing the threads together, Trax’s case in defence to Brands’ claim is as follows: (a) Trax made no representations as to the safety of the hand rails on the peak deck. They were outside the scope of its inspection. The documentation had the meaning described in evidence by Mr Simpson and Mr Wheeler. They related to rails inspectable from floor level and so did not cover the rails and posts involved in the accident, which were at height; (b) as a matter of fact, neither the Claimant (and so nor Brands) interpreted the form as a representation as to the safety of the handrails on the peak deck. Mr Sippitts evidence showed that they both intended to establish the safety of the handrails via a LOLER inspection; (c) there was no wider duty on Trax to advise the Claimant/Brands about the need for a LOLER inspection. Its role was clear and confined; (d) neither the Claimant nor Brands can show that they relied on any representation by Trax concerning the safety of the handrails on the peak deck.

I have found that the Claimant was Brands’ employee. It accordingly owed him a common law duty of care according to long recognised principles: see eg Wilson & Clyde Coal Co Ltd v English [1938] AC 57, 84; Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783; Charlesworth, [12-03]-[12-05].

That duty, and its relationship with the amendments to s 47 of the Health and Safety at Work etc Act 1974 made by s 69 of the Enterprise and Regulatory Reform Act 2013, was described in by Collins-Rice J in Cockerill v CXK Limited [2018] EWHC 1155 (QB), [15]-[18], as follows:

In light of these principles, and having regard to the relevant health and safety regulations (LOLER, PUWER and WHR) which, as I have said and the parties agree, assist in defining the scope of the common law duty of case what steps a reasonable and conscientious employer could have been expected to take to provide a reasonably safe workplace and system of work for the Claimant, Brands’ duty of care to him included the following: (a) a duty to ensure that work at height was properly planned, appropriately supervised; and carried out in a manner which was, so far as was reasonably practicable, safe; (b) a duty to ensure that the lifting equipment in question, viz, the cab and trailer, which were exposed to conditions which would result in deterioration which was liable to result in dangerous situations, was thoroughly examined according to an examination scheme (as defined in reg 2(1) of LOLER) at least every 12 months (and, in fact, I think, as I said earlier, at least every six months) to ensure that health and safety conditions were maintained and that any deterioration would be detected and remedied in good time; (c) a duty to ensure that the guard-rails on the cab and trailer were of sufficient strength and rigidity and that the structures supporting the guard were of sufficient strength and suitable for the purpose of such support or attachment; (d) a duty, in any event, to ensure the equipment was inspected at suitable intervals to ensure that health and safety conditions were maintained and that any deterioration can be detected and remedied in good time; (e) a duty to ensure that the safety rails on the cab and trailer were maintained in an efficient state, in efficient working order and in good repair.

Let me say at once that I regard Mr Sippitts as an honest and conscientious person. He is and was plainly horrified by what happened to the Claimant. He has cooperated throughout this case, and has been open and honest by giving witness statements for both the Claimant and Brands, as I mentioned earlier. He gave his evidence frankly. His attitude is to be commended.

Mr Sippitts was under a duty to perform his obligations as transport manager with reasonable care and skill, as the Claimant submitted. He owed that duty to Brands and to the Claimant and to anyone who worked on or drove the transporter, such as Mr Maynard, and indeed any road user. I consider that the scope of those obligations was principally defined by the transport managers’ declaration which he signed when he was engaged by Brands.

I find that Mr Sippitts failed to exercise reasonable care and skill in the exercise of his functions vis-à-vis Brands in the particular circumstances of this case, and thus was negligent. That is because, in short, he did not fulfil the obligations which he undertook when he signed the transport manager’s declaration on TM1. That failure contributed to the accident which befell the Claimant.

I set out the declaration earlier, but to recap, among the things Mr Sippitts undertook to do included, in particular: ‘ensuring safe loading with appropriate indicators fitted’; ensuring ‘a suitable maintenance planner is complete and displayed with preventative maintenance dates at least 6 months in advance, to include the Annual Test and other testing or calibration dates’; ‘ensuring that vehicles and trailers are kept in a fit and roadworthy condition, that defects are either recorded and repaired promptly’ and where not roadworthy are taken out of service’; ‘to make vehicles and towed equipment available for safety inspections, service, repair and statutory testing available at the appropriate times and within the notified O-licence maintenance intervals’; ‘to liaise with maintenance contractors, manufacturers, hire companies as might be appropriate.’

I emphasise the words are fit and roadworthy. Mr Sippitts’ duty was thus to ensure the vehicle was both fit and roadworthy – and not just ‘roadworthy’, as he perceived it.

In cross-examination by Mr Killalea, Mr Sippitts said this (15 February 2022, p16):

Later he added (p20):

Mr Sippitts was plainly aware that the transporter required a LOLER inspection because its operation involved lifting, and also working at height. That is why he asked for sight of the LOLER certificate when he was first engaged by Brands. He knew that LOLER inspections were required at least every 12 months (and hence, in this case, no later than 4 July 2017) or possibly – as he said, ‘erring on the side of caution’ – every six months. In the latter case, that meant an inspection was already overdue by the time he saw the certificate within weeks of March 2017.

With that knowledge, in my judgment it was negligent for Mr Sippitts not to have entered that date on the maintenance planner which he had created via Google Calendar specifically for the purpose of telling the Claimant what inspections were due, and when. That was a specific duty according to the TM1 declaration he had signed. On his own evidence he knew an inspection was overdue, or would become due during 2017. He did not need to be a health and safety expert to know that. After all, he had first raised LOLER with the Claimant and was aware of the six month/12 month issue.

Ensuring safe loading also fell squarely within Mr Sippitts’ responsibilities according to the declaration he signed, and so ensuring that the vehicle was properly inspected for the purposes of LOLER was part of that duty. Safe loading could not be carried out in the absence of a LOLER inspection, because loading involved work at height. Ensuring the vehicle was ‘fit and roadworthy’ also required an accurate and up to date maintenance planner, as did the duty upon him to make sure the vehicle was available for safety inspections and statutory testing.

I do not accept there is a rigid dividing line between roadworthiness and health and safety which justified Mr Sippitts not entering the date on the Google Calendar. I regard the word ‘fit’ as encompassing any health and safety inspections required by the use to which the vehicle is to be put. Roadworthiness inspections and health and safety inspections are therefore all part of the spectrum encompassing an operator’s duty to keep their vehicle safe for whatever use it is to be put to – a duty which, in Brands’ case, it was Mr Sippitts’ duty to ensure they fulfilled.

Mr Sippitts’ said the reason he did not take that step was because he was not a health and safety expert (‘I don’t tend to get involved in the actual health and safety regulations’). I quite accept that he was not qualified to carry out LOLER inspections himself. Nor, I suspect, was he qualified to carry out a roadworthiness inspection, or an MOT, but that did not stop him from putting the due dates on the planner. Mr Sippitts knew about LOLER; he knew about the need for inspections at regular intervals; and he discussed the matter with the Claimant. That was all he needed to know. He therefore should have put the relevant date on the Google Calendar.

Nor do I regard it as an answer to say that because the Claimant had had a conversation with ECM about the LOLER inspection, that relieved Mr Sippitts of the need to include the LOLER date on the Google Calendar. It would appear from the evidence that there was uncertainty about the due date for the next LOLER inspection. The report from July 2016 said twelve months; Mr Sippitts said the Claimant told him ECM had told him six months. Mr Sippitts knew, or should have known, that the Claimant was relying on the Calendar to remind him what needed to be done on the transporter, and when. He knew the Claimant was enthusiastic but inexperienced, and he knew the Claimant was heavily reliant upon his advice and expertise. This was plainly a very busy period for the Claimant as he began to set up his new business. He had to deal with the PAYE, NI, accountancy, etc, side of matters; he had to comply with his many regulatory obligations regarding the vehicle; and no doubt he was also looking for new business opportunities. All of this, as well as bringing up a young family. The scope for him to forget a particular date was considerable, making it all the more important that there be an accurate and up to date maintenance planner so that the scope for a date to be overlooked was minimised.

Furthermore, Mr Sippitts was unfamiliar with car transporters, as this was the first such vehicle with which he had been involved. That made it all the more important that he be absolutely rigorous in ensuring all necessary and relevant dates were entered on the planner, including LOLER inspection dates.

I find that had Mr Sippitts put the LOLER date onto the planner then the Claimant, as an assiduous operator, would have had a reg 9 LOLER inspection carried out, that this would have identified the defect on the upper safety rail, and that this in turn would have prevented the accident.

The inference I draw from the evidence is that somehow, at some point after the Claimant and Mr Sippitts had their discussion about LOLER, the need for an inspection must have slipped the Claimant’s mind because of its absence from the Google Calendar.

As I set out earlier, the manufacturer’s Drivers Manual recommended that a visual inspection be considered daily to ensure that, ‘Safety hand rails are all secure and complete and wire ropes are tensioned and not defective.’ I find it was negligent for Mr Sippitts not to have obtained and familiarised himself with the manufacturer’s manuals relating to the transporter. It was especially important for him to do because, as I have said, he was not familiar with this type of vehicle. He admitted that if he had seen them, and in particular the need for the daily driver’s safety check to include the safety rails, he would have expected additional training to be given to the drivers, and would have advised the Claimant to take advice about these checks. He also said (15 February 2022, p30):

However, because he had not obtained or read the manuals, no such advice was given, and no such training took place. In cross-examination by Mr Kennedy, Mr Maynard’s evidence was, ‘Well I do that to see that the rails and the stretch is okay anyway. They looked okay.’ This suggests, to me, a fairly perfunctory check. Had Mr Sippitts seen the manuals he would have ensured proper training was given in relation to safety rail inspections (including the pillars).

Now, I quite understand that in the case of this vehicle, carrying out that task might not have been straightforward. The trailer had an upper deck which could be lowered, which would have allowed for the inspection of the safety rails at ground level by the driver. However, the cab unit, as I have said, had a fixed platform at height whose safety rails could not readily be inspected from ground level. In particular, I accept the evidence that the bottom of the guard pillar (where the corrosion had occurred) could not be seen from the ground. But had Mr Sippitts read the manual, or indeed physically seen the vehicle (which he never did), he would have appreciated this difficulty and, I am sure, advised appropriately on how a suitable inspection regime ought to be devised (if only, by advising the Claimant to take specialist advice and perhaps working with him to find a suitable maintenance contractor).

Again, I find that had these steps been taken, appropriate inspections would have taken place which would have prevented the accident.

Mr Sippitts’ evidence was that he was relatively relaxed about LOLER because he did not think it mattered because he thought the transporter was not actually being used (15 February 2022, p19):

I do not think that Mr Sippitts was necessarily right to think that because the transporter was not actually being used, that impacted on the need for an inspection and a valid LOLER certificate. Regulation 2 of LOLER defines ‘equipment’ be ‘work equipment for lifting or lowering loads and includes its attachments used for anchoring, fixing or supporting it’. The thorough inspection required by reg 9(3) applies to ‘lifting equipment which is exposed to conditions causing deterioration which is liable to result in dangerous situations’. On its face, no distinction is drawn whether the lifting equipment is actually being used, or not. That, it seems to me, is common sense. Even if lifting equipment is not currently being used, it still needs to be inspected so as to make sure that it was not deteriorating whilst not being used, so that as and when it was used again, it was in a safe condition.

Given the safety critical nature of working at height, and the apparent uncertainty of whether an inspection was already overdue, or due in July, Mr Sippitts should have been much more emphatic to impress upon the Claimant the very important need to have absolute clarity and certainty on LOLER inspections, and the relevant period going forward.

Overall, for these cumulative reasons, I find that Mr Sippitts failed to exercise the degree of care and skill that a reasonably competent transport manager would have exercised in relation to this vehicle, in the circumstances of this case. Had he done so, the accident would not have happened.

The first way in which Mr Killalea for the Claimant put his case on why, in law, Brands was responsible for Mr Sippitts’ failures is that it owed the Claimant a personal, non-delegable, duty of care and that it cannot therefore escape liability on the basis that he was an independent contractor.

As his employer, Brands was under a duty to take reasonable care for the Claimant’s safety: Wilson & Clyde Coal Co Ltd v English [1938] AC 57, 78; Stokes v Guest, Keen and Nettlefield (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, cited with approval by the House of Lords in Barber v Somerset County Council [2004] 1 WLR 1089, [65]; Charlesworth, [12-03]-[12.04]. In Stokes, Swanwick J said:

Three strands of this general duty are: the duty to provide a safe place of work; the duty to provide and maintain adequate plant and equipment (which may include carrying out regular inspections); and the duty to provide a safe system of work (which includes taking precautions for the safety of workers); Charlesworth, [12-24], [12-27], [12-59], [12-78].

If Mr Sippitts had been an employee of Brands then, possibly subject to the Brumder issue I discuss later, there can be little doubt that the company would have been responsible for the Claimant’s injury on the straightforward basis that a company is vicariously liable as a matter of policy for the negligence of its employees, even if it is not itself at fault. Mr Sippitts’ negligence would have put Brands in breach of its duty of care to the Claimant.

In Majrowski v Guy’s and St Thomas’s NHS Hospital Trust [2007] 1 AC 224, [7]-[9], Lord Nicholls described vicarious liability in the following terms:

But Mr Sippitts was an independent contractor. Of that there is no doubt. Ordinarily, those who engage an independent contractor are not liable for injuries caused by the contractor’s negligence, as I will discuss later. The question therefore is whether Brands is not liable on that basis.

In Woodland the issue was whether a local education authority was liable for negligence by swimming instructors (who were independent contractors, and not council employees) which led to a child being severely injured in a swimming accident during a school swimming lesson. Lord Sumption said at [4] that the question at issue was what was the scope of the duty owed by the authority to the pupils in its care. Was it a duty to take reasonable care in the performance of functions entrusted to it, so far as it performed those functions itself, through its own employees ? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them ? On either view, Lord Sumption said, any liability of the education authority for breach of it was personal, and not vicarious.

He went on to say at [5] that, generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. However, as he went to say:

What this means, in simple terms, is that where the duty of care in question is of the type which the law regards as non-delegable, then the defendant will be liable for the negligence of another person whom it has engaged to carry out a task falling within the scope of that duty, whether that person is a defendant or an independent contractor.

Charlesworth summarises the position at [7-106]-[7-107]:

In Woodland, Lord Sumption analysed the law relating to non-delegable duties and identified two broad categories of case where such duties had been held to arise. The first were extra-hazardous activities, which I do not need to address. The second was where there was a personal protective duty. At [23] he identified five factors as relevant to the existence of the duty:

In [19] of Brands’ Closing Skeleton Argument (15 February 2022) it was contended:

I do not agree. It is well recognised that an employer’s duty of care towards its employees is non-delegable, and falls into the second of Lord Sumption’s categories. Charlesworth says at [7-112] and [12-10] (citations omitted):

This is a reference to [25(1)] of Lord Sumption’s judgment, where he said in relation to the criteria he had identified in [23]:

In Wilsons & Clyde Coal Co. v. English [1938] AC 57 the House of Lords held that the duty of care owed by an employer to an employee was non-delegable, with the consequence that the (then) defence of common employment was not available to an employer who was the owner of a mine where injury was caused to a miner through the failure of the mine manager appointed as agent in charge of the employer's mining activities to provide a safe system of work. The employer was held liable because the system of work was not reasonably safe, although the system had been devised by the manager to whom the employer was obliged by statute to leave the matter and the employer had personally done everything that it could to provide a safe system. Lord Wright said (at p78):

Later, in discussing the limits of the obligation, his Lordship said (at pp83-84):

His Lordship went on to say (at pp.84-85):

In McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906, 919, Lord Brandon said:

Paine v Colne Valley Electricity Company [1938] 4 All ER 803, 807, provides an early but neat example of the non-delegable duty in action. A workman was fatally electrocuted by an improperly insulated metal kiosk containing electrical equipment which had been manufactured by a third party. Goddard LJ held:

Hence, I agree with Mr Killalea’s primary submission under this head that Brands was responsible for the fault on the part of Mr Sippitts, notwithstanding his status as an independent contractor, on the straightforward basis that the present case falls within Lord Sumption’s second broad category of non-delegable duty in Woodland, namely a case within the employer – employee category.

That is sufficient to dispose of this issue in the Claimant’s favour. If the Claimant had been an employee of Brands simpliciter, without also being its sole director, I think there would be little room for argument but that Brands was liable for his injuries. Similarly if Mr Maynard had been an employee, and had fallen from the deck. Does it make a difference that the Claimant was its sole director ? On this issue, I consider not. He was an employee; Brands therefore owed him the duty which I have outlined; and because of Mr Sippitts’ breaches, Brands was in breach of that duty. The otherwise non-delegable duty did not cease to be such simply because the Claimant was the sole director as well as an employee. It seems to me that the Claimant’s status as sole director, and whether it operates so as provide Brands with a defence, falls to be analysed in the context of Brumder, which I will discuss later.

Mr Killalea was not content to rest his case under this head on the Claimant’s employee status alone. He also submitted that, applying Lord Sumption’s five criteria, the Claimant fell into the second category of case where a non-delegable duty arises. I broadly agree with Mr Killalea’s analysis.

The important context of this analysis is that Mr Sippitts was conducting a statutory function without which Brands could not lawfully operate. He was engaged to provide expert, specialist advice in a field which he himself said was complicated (as witnessed by his evidence about the high failure rate for those seeking to become transport managers). Also, as Mr Sippitts again frankly acknowledged, although the Claimant was enthusiastic and keen to learn, and had done some research, he was also very inexperienced and – I infer - was relying on Mr Sippitts very heavily, if not entirely – which Mr Sippitts knew - to provide him with the necessary advice to keep his vehicle fit, legal and roadworthy (and so to keep himself safe).

Hence, addressing the first of Lord Sumption’s criteria, whilst the Claimant was not vulnerable in the same sense that a patient or child is vulnerable, the vulnerability of the Claimant as an employee arose from the exceptional requirement arising from the vehicle operator’s licence to have a professionally competent and suitably experienced transport manager (whether internal or external) as a continuing and mandatory requirement. If the Claimant had had extensive and/or appropriate technical and/or employment experience which enabled him to form his own views on the transport issues Mr Sippitts was specifically engaged to deal with, then I can see that, in that case, it might be less appropriate to categorise him as especially vulnerable.

Here however, the Claimant did not have any such experience and/or knowledge. In specific terms, as Mr Sippitts stated, the Claimant had not, for example, even heard of LOLER. The Claimant was precisely the sort of person, namely an employee, who was dependent upon the protection of his employer Brands (as a transport company complying with their licence requirements by engaging Mr Sippitts) against the risk of injury arising from the use of a specific type of heavy goods vehicle with the associated and specific risk of a necessity to work at height.

As to the second of Lord Sumption’s criteria, the antecedent relationship placing the Claimant in the charge or care of his employer at work arose from the technical and specialised nature of the transport requirements which directly impacted upon the Claimant’s safety whilst at work on a specialised HGV. I consider that this gave rise the assumption of a positive duty to protect the Claimant from harm as the Claimant, whilst engaged in working at height, was almost totally reliant upon the positive steps required to be taken by his employer – operating through Mr Sippitts - in order to devise, institute and enforce, a safe system of work, and also to ensure compliance with the various regulatory regimes including keeping the vehicle roadworthy via the six-weekly inspections; and compliance with LOLER, PUWER, and the WHR.

As to the third factor, control, neither the Claimant personally, nor he nor Ms Parsons as employees, could perform the obligations required of a transport manager. Mr Sippitts had complete autonomy.

I also consider the fourth of Lord Sumption’s criteria is applicable. I agree with Mr Killalea that it is difficult to envisage a function that was more an integral part of the positive duty owed by Brands as the Claimant’s employer than the duties Mr Sippitts had as its transport manager to devise, institute, and enforce a safe system of working by ensuring that there was a full and accurate maintenance planner of the required inspections of the car transporter.

Finally, the fifth criteria is undoubtedly satisfied. Mr Sippitts was not negligent in some collateral respect but in the performance of the very function assumed by Brands and delegated by Brands to him.

Taking a step back, once Brands (acting through the Claimant) had engaged Mr Sippitts, the Claimant became just an employee, wholly dependent on the lawfulness of the business, and his own safety, on the advice which Mr Sippitts, paid for and retained by the company, provided. If the Claimant’s status as the sole director makes a difference, as I have said, then this falls to be analysed in relation to Brumder, as I will consider next.

In Brumder the question which fell for decision was whether the sole director and shareholder of a company who suffered personal injuries as a result of the breach by the company of an absolute statutory obligation to maintain equipment in efficient working order could bring a claim against the company, even though the company was only in breach because he himself was in breach of his obligations to the company to exercise reasonable care in order to enable the company to fulfil that obligation, and the company could only do so vicariously through him. Further, he had totally abrogated his health and safety responsibilities.

Mr Brumder was the sole director and shareholder of the defendant company. It specialised in servicing vehicles and putting them through MOT inspections. While the claimant was trying to climb down to ground level from a raised hydraulic ramp in the defendant’s workshop after the compressor in the ramp mechanism failed, he caught his hand and a finger was severed. The claimant brought a claim for damages for personal injury against the company.

The judge found that the company was in breach of its obligation under reg 5(1) of PUWER to ensure that work equipment ‘is maintained in an efficient state, in efficient working order and in good repair’, that the defect in the compressor was causative of the accident, and that, therefore, there was ‘primary liability’ on the part of the company. However, he nevertheless dismissed the claim on the basis that the claimant, who had not given any consideration to health and safety matters in the workshop, including the need to comply with PUWER, was responsible for the breach, and thereby 100% contributorily negligent.

On the claimant’s appeal the defendant sought to uphold the dismissal of the claim on the basis that the defendant had a complete defence to the claim, and the judge had been wrong to make a finding of primary liability against it.

Beatson LJ, with whom Longmore LJ and Sir Alan Ward agreed, dismissed the appeal, and affirmed the decision of the trial judge, but on different grounds. I take the following from the headnote at [2013] 1 WLR 2783.

Once an employee bringing a personal injury claim against his employer has established that his injury had been caused by a breach of an enactment which made the employer absolutely liable, he need do no more. However, it is then open to the employer to set up a defence that the employee was alone to blame, and that defence applied: (a) where the act or omission of the claimant himself had the legal result that the defendant was in breach of a statutory duty, but (b) only where the employer proved that he had done all that he could to ensure compliance with the duty. The policy reasons for imposing the absolute statutory duty on employers, namely to relieve injured employees from the need to show fault and thereby protect them as the weaker party in the relationship and to encourage high standards of compliance by those responsible for the performance of an employer’s duty, did not apply to a claimant who was a director of the employer and the only person through whom the employer company could act; and for that reason. and since the claimant as a wrongdoer fell within one of the justifications for the defence, which was the common law principle that a person could not derive any advantage from his own wrong, the defence was available to the defendant company. The Court also held that the finding of 100% contributory negligence was wrong in principle (because that would only have arisen had the judge been correct to find some liability on the part of the company, which it did not have).

At [8] Beatson LJ said:

At [19] Beatson LJ noted that there was no challenge to the judge’s finding that the claimant had not at any time considered health and safety issues.

At [25] and [26], Beatson LJ considered Ginty. That case concerned the prohibition from working on asbestos roofs without using boards, which bound both employers and employees. Belmont was to strip an asbestos roof at a factory owned by Pirelli and replace it with new sheeting. Belmont’s instructions to its employees including Mr Ginty were that they were not to work on roofs without boards. The ladders and boards for the job were to be supplied by Pirelli, but the responsibility under the Regulations for providing them remained with Belmont. Pirelli’s employees told Belmont’s men who had come to do the job that the roof was unsafe, showed them a variety of boards, and told them to help themselves to what they wanted. The next day the men were seen working on the roof without boards and Pirelli’s employees left two boards where the men working on the roof could see them. The men knew of the prohibition in the Regulations but did not use the boards. Several days later Mr Ginty fell through the roof, and was seriously injured. Pearson J held that, although both the worker and Belmont were in breach of their duties under the relevant Building Regulations, he was not entitled to recover damages because the fault was his, and there was no fault on the part of Belmont which went beyond or was independent of his own omission.

At [26] Beatson LJ said this:

At [30]-[32] Beatson LJ referred to Lord Diplock’s speech in Boyle v Kodak Ltd. In that case, a man who was going up a ladder failed to lash it to the top of an oil storage tank and fell from height. Regulation 29(4) of the 1948 Building Regulations provided that, ‘every ladder shall so far as practicable be securely fixed so that it can move neither from its top nor from its bottom points of rest’. As the injured man could have lashed the ladder to the rail at the top of the tank by using a staircase running round the outside of the tank rather than mounting the ladder before it had been fixed, there was a breach of that provision. Beatson LJ said of this case:

Given the reliance by Brands on Lord Diplock’s dictum, I should emphasise the word ‘only’: ‘… the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself’. Here, it is the Claimant’s case that even if he himself was at fault (which he denies), the accident was also caused by Mr Sippitts’ fault, for which Brands is liable, and so he was not solely at fault.

At [38] onwards Beatson LJ considered the three explanations for the defence advanced by Pearson J in Ginty. The first of these was:

At [41] Beatson LJ said:

He went on to hold that the claimant, not being an employee, did not owe a duty under the relevant health and safety regulations (which only imposed duties on employers and employees). However, as a director of the defendant company, the claimant owed a duty to use reasonable care and skill pursuant to s 174 of the Companies Act 2006 (‘a director of a company must exercise reasonable care, skill and diligence’). He went on at [47]-[48]:

At [54] Beatson LJ said the case before the court was an ‘extreme case’, and at [55]-[56]:

I turn to my conclusions under this heading.

Clerk & Lindsell on Torts (23^rd Edition), [12-89] says of the Ginty/Kodak/Brumder defence:

For the reasons I explained earlier, an important causative factor for the accident was Mr Sippitts’ failure to update the maintenance planner on Google Calendar with the last date for a LOLER inspection, and he did not familiarise himself with the relevant manuals relating to the transporter, which would have alerted him to the important need for safety rail inspections. Had he done so, the Claimant would have had the necessary inspections carried out and the accident would not have happened. The company bears responsibility for Mr Sippitts’ failures on the basis of its non-delegable duty.

On all the evidence I heard, much of which I recited earlier, the Claimant’s attitude to health and safety was the very opposite of Mr Brumder’s attitude, which was one of total indifference. In contrast, the Claimant was assiduous and wanted to ‘do the right thing’. Mr Sippitts could not have been more generous in his assessment of the Claimant’s attitude to his responsibilities.

The health and safety regulations in question applied to the Claimant as an employee. For example, reg 3(2) and (3) of LOLER provides:

Regulation 3 of PUWER and the WHR apply to employees (reg 3(2)).

The Claimant obviously had control of the transporter, because ultimately it was for him to book and pay for inspections. I do accept, on the basis of Mr Sippitts’ evidence about what the Claimant told him ECM had said about LOLER inspections, that the Claimant had a degree of fault for not having a LOLER inspection carried out. But it was, I find, a world away from the ‘total abrogation’ of responsibility for health and safety which marked the claimant in Brumder, whose attitude had been ‘cavalier’ (see at [18] of Beatson LJ’s judgment). The Claimant obviously had a lot ‘on his plate’ in the course of setting up his new business, and to err, as he did, is human. Given he was the one who was principally going to be loading cars on the transporter at height, I reject as very implausible that he would have deliberately neglected health and safety issues relating to working at height.

In short, the Claimant’s own fault was not co-extensive with company’s own fault arising from Mr Sippitts’ errors for which the company, in law, is liable. The Brumder defence does not, therefore, apply.

Mr Killalea submitted in the alternative that Brands was responsible for Mr Sippitts’ fault because he stood in a position analogous to an employee, despite in law being an independent contractor. This submission requires an analysis of the cases up to and including Barclays Bank Plc.

For those of us who learned their tort law in the early 1990s, Mr Sippitts’ status would have meant Brands was not responsible for his actions because, as classically understood, the law of negligence only imputed vicarious liability to an employer for the actions of its employees carried out in the course of their employment, and not for the actions of independent contractors: Salsbury v Woodland [1970] 1 QB 324, 336); D & F Estates Ltd v Church Comrs for England [1989] AC 177, 208.

Since that time, however, the law has moved on and there is no longer the rigid dichotomy between employees on the one hand, and non-employees on the other. Decisions in recent years have significantly extended the doctrine of vicarious liability, by including within its ambit relationships that are regarded in law as being ‘analogous to employment’. The new developments were driven in part by cases involving child abuse, in circumstances where the defendant being sued was not the abuser’s employer (because they were not subject to a contract of service for any one of a number of reasons). However, the wider test has not been limited to such cases, and it has been applied in other circumstances, such as prisoners working in prison kitchens, and foster carers.

The principal cases before Barclays Bank Plc (discussed in Charlesworth, [7-34] et seq) were: John Doe v Bennett [2004] 1 SCR 436 (Supreme Court of Canada); E v English Province of Our Lady of Charity [2013] QB 722 (Court of Appeal); Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 (hereafter Christian Brothers); Cox v Ministry of Justice [2016] AC 660; and Armes v Nottinghamshire County Council [2017] 3 WLR 1000 (all Supreme Court).

In Catholic Child Welfare Society, the institute was a lay Roman Catholic order. Its full title is the Brothers of the Christian Schools. It was founded in 1680 in Rheims by Jean-Baptiste De La Salle. The members of the institute are lay brothers of the Catholic Church. Its mission was to provide a Christian education to children. Its members took vows of chastity, poverty and obedience and lived a communal life together as brothers, following a strict code of conduct and obeying the orders of their superiors. They renounced any salaries payable for their teaching work which were instead paid to a charitable trust for the benefit of the institute, which was itself an unincorporated association. In return the institute met all the brothers’ material needs. The diocesan bodies responsible under statute for managing a Roman Catholic boys residential school left it to the institute to nominate a brother to act as headmaster and appoint other brothers to teach there. The brother teachers lived communally within the school grounds. In the 1990s evidence emerged of serious sexual and physical abuse of boys by brother teachers spanning more than three decades. Almost 200 former pupils brought claims for damages against various representatives of the diocese and the institute. On a preliminary issue the judge determined that the defendants with vicarious liability for any abuse which could be established were the two diocesan bodies (referred to in the judgment as ‘the Middlesborough Defendants’) which had been responsible under statute for management of the school during the relevant period and had employed the brother teachers. The judge found a second group of defendants (the De La Salle Defendants), which were various legal bodies established by the institute (which itself is an unincorporated association). The Court of Appeal upheld his decision. The diocesan bodies appealed on the grounds that the institute should share joint vicarious liability for the acts of its brother members.

[19]-[22], Lord Phillips said:

I note here that the two-stage test to which Lord Phillips referred at [21] has been picked up and referred to in subsequent cases: see eg Barclays Bank Plc, [10].

At [35] Lord Phillips said:

At [56]-[58] he said:

At [62] he went on to consider Stage 2 of the two-stage test to which he had referred at [21]:

In relation to the last question, having considered a wealth of authority, he concluded (at [85] onwards) that there could be circumstances where an employer would be liable for acts of sexual abuse (and held the institute to be liable as well as the Middlesborough Defendants on that basis).

As the editors of Charlesworth note at [7-45], in none of Christian Brothers, Cox or Armes was the court required directly to address the question whether the relationship between an employer and an independent contractor might also be regarded as ‘analogous to employment’. But in Barclays Bank Plc that question squarely arose.

The Bank had engaged a doctor in private practice to carry out pre-employment medical examinations on the claimant job applicants, many of whom were teenagers applying for their first jobs after leaving school. The Bank arranged the appointments, told the claimants when and where to go, and provided the doctor with a pro forma report to fill in. The doctor was not paid a retainer by the Bank, but was paid a fee for each report. The work he did for the Bank was a comparatively minor part of his portfolio practice (which included working as an employee at hospitals, as well as other private work besides the Bank’s work, eg, doing insurance work). The examinations took place in a consulting room in the doctor’s house.

The claimants alleged that they were sexually assaulted in the course of those examinations. Following the doctor’s death, they sought damages for personal injury from the Bank on the basis that it was vicariously liable for the assaults. On a preliminary issue, the judge determined that the Bank was liable for any such assaults that the doctor was proved to have perpetrated. The Court of Appeal upheld that decision.

The Supreme Court granted permission to appeal. The issues for the Supreme Court were: (a) whether an employer was vicariously liable for the torts of an independent contractor; (b) if not, whether the five criteria identified by the Supreme Court in Catholic Child Welfare Society and Cox were applicable to cases involving independent contractors; and (3) whether the relationship between the doctor and the bank was one that was capable of giving rise to vicarious liability.

Baroness Hale said at [1]:

At [7]-[8] she summarised the parties’ cases as follows:

At [16] she said that there appeared to have been a tendency to elide the policy reasons for the doctrine of the employer’s liability for the acts of his employee, set out in [35] of Christian Brothers, with the principles which should guide the development of that liability into relationships which are not employment but which are sufficiently akin to employment to make it fair and just to impose such liability. She said that may have arisen because of what Lord Phillips said at [47]:

She went on:

Baroness Hale then set out [56]-[58] of Lord Phillips’ judgment, which I also set out earlier, and continued:

At [20]-[22] she said:

She then went on to consider Armes, which concerned foster parents and whether a county council could be vicariously liable for physical and sexual abuse allegedly carried out by two of the foster parents with whom the claimant was placed by the council while in its care. At [23] she said:

At [24] Baroness Hale commented:

At [27] she concluded:

Applying that approach to the facts, she concluded that the Bank was not vicariously liable for the doctor’s actions (at [28] and [30]).

Commenting on this decision, the editors of Charlesworth state at [7-48]:

In TVZ v Manchester City Football Club Limited [2022] EWHC 7 (QB), Johnson J reviewed the authorities and helpfully set out the sort of relationship falling within the ‘akin to a contract of employment’ formula (at [258]-[259]):

He went on at [260]:

In Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 (a decision which was expressly approved in Barclays Bank Plc at [25]) Singh LJ said:

With that lengthy recitation of principles, I turn to their application to the facts of the case before me.

It seems to me clear that the Claimant’s case under this head cannot succeed. Mr Sippitts was unquestionably an independent contractor who worked under a contract for services with Brands – as well as for many other clients – to whom he rendered monthly invoices. His Brands work was therefore just one part of a portfolio of activities. The profits or losses he made from his work as an external transport manager accrued to him and not Brands. Whilst he owed a duty to Brands and others to exercise reasonable care and skill, he did not owe it a duty of obedience in the sense that term is used in relation to employees and in other contexts.

It was clear from Mr Sippitts’ evidence that what he did from month to month varied, How much time he spent on each client was down to him. It was also down to him where and how he carried out his work; as I have said, it transpires that he never physically saw the transporter, and visited the Claimant at his house. None of his clients, and certainly not Brands, had any control over what he did. In fact, it was quite the reverse. His evidence was quite clear that Brands (and the Claimant, through whom it operated) were totally dependent on his knowledge and advice. No doubt there were months when he was more occupied with some clients than others, if their regulatory requirements that month were more onerous. However, he was not required to spend any particular amount of time each month on Brands’ affairs, or any of his other clients. Provided that in respect of each client he fulfilled the undertaking he had given in the transport manager’s undertaking for that client, and ensured that they ‘stayed legal’, then how he organised his time was down to him.

Section 1 provides:

On a straightforward application of this section, I find for the Claimant on the basis that: (a) he was an employee; (b) he suffered personal injury in the course of his employment; (c) this was caused by defective equipment; (d) this was provided by his employer, Brands; (d) the defect was in part at least due to the fault of a third party, namely, Mr Sippitts.

I do not consider there is any difficulty posed by the fact that the Claimant was Brands’ sole director. He was also an employee. A company is a distinct legal personality from its directors, and a director can also be an employee.

Lee v Lee’s Air Farming Ltd [1961] AC 12 concerned s 3(1) of the Workers' Compensation Act, 1922, of New Zealand, which provided that if ‘personal injury by accident arising out of and in the course of the employment is caused to a worker, his employer shall be liable to pay compensation,’ and ‘worker’ was defined in s 2 as ‘any person who has entered into or works under a contract of service … with an employer … whether remunerated by wages, salary, or otherwise.’

The Appellant's husband, who had formed the respondent company for the purpose of carrying on the business of aerial top-dressing, was the controlling shareholder of the company, and was by its articles of association appointed governing director and employed at a salary as its chief pilot. In his capacity as governing director and controlling shareholder he exercised full and unrestricted control over all the operations of the company. Pursuant to its statutory obligations the company had insured itself against liability to pay compensation in the case of accident to him. While piloting an aircraft belonging to the company in the course of aerial top-dressing operations the aircraft crashed and he was killed. The Appellant claimed against the Respondent company for compensation, alleging that at the time of the accident her husband was a ‘worker’ employed by the respondent company within the meaning of the Workers' Compensation Act, 1922, as amended.

Lord Morris said at pp24-25:

The requirement for the defect to be at least in part the fault of a third party means that, by definition, the Brumder principle does not apply – or at least cannot easily apply - because the employee cannot easily be the sole author of his own misfortune. I suppose it is possible to conceive of circumstances where, for example, a third party supplied a defective piece of equipment to an employer, who then gave it to an employee to use, and the employee with full knowledge of the defect and through voluntary conscious choice, used it and suffered injury, so that the original fault of the third party became a matter of mere history, Brumder might come into play. But that is not this case. In any event, contributory negligence is available as a defence to a claim under s 1: James v Durkin Civil Engineering Contactors, The Times, 25 May 1983; Charlesworth, [12-18], and in the example I have given a judge might conclude that whilst the employer was strictly liable under s 1 (as opposed to having a complete Brumder defence which excludes liability altogether) a finding of 100% contributory negligence was justified. In any case, the policy principle underlying Ginty/Kodak/Brumder, that no-one should benefit from their own wrong – would not be infringed.

Paragraph 11 of the Amended Defence alleges contributory negligence on the part of the Claimant. The particulars alleged include: causing or permitting the use of the transporter with corroded safety supports; failing to take account of the corroded and/or defective safety equipment on the transporter’s top deck; failure to ensure that the posts and safety supports on the top deck were of sufficient strength and rigidity; failing to take sufficient care to prevent himself from falling on the top deck. There is no express particular relating to the Claimant’s failure to have the transporter inspected under LOLER, but this is inherent in the allegation that he caused or permitted the transporter to be used with corroded safety supports. Brands’ trial Skeleton Argument put the Claimant’s liability at 100%.

At common law where some fault on the part of the claimant contributed to the damage of which he complains, that contributory negligence was a complete defence: Butterfield v Forrester (1809) 11 East 60. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 removed this bar on claims and provided for apportionment of the loss:

Section 1(1) does not specify how responsibility is to be apportioned, beyond requiring the damages to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage (not, it is to be noted, responsibility for the accident). Further guidance can, however, be found in the decided cases. In particular, in Stapley v Gypsum Mines Ltd [1953] AC 663, 682, Lord Reid stated:

In Clerk & Lindsell, [3-101], the editors state (by reference to Jackson v Murray [2015] 2 All ER 805, [28]:

In this case, I have found that the Claimant was told of the need for a LOLER inspection some time soon after he engaged Mr Sippitts, which was around March 2017. Although there was some uncertainty over the inspection period, he knew or should have known that on any view it was due no later than 4 July 2017. He had a document from ECM which told him that. As the employee with control over where, when and how the transporter was inspected, he had an absolute duty under LOLER to ensure compliance. There was in my judgment a culpable failure by him to have the vehicle inspected.

On the other hand, as I have also found, Mr Sippitts was also at significant fault for not putting the relevant date on the maintenance planner, which was one of his primary duties, as was ensuring safe loading (which meant ensuring safety equipment necessary for safe loading was properly maintained). He knew the Claimant was inexperienced and had many tasks to attend to in setting up his business. The possibility that the Claimant might overlook or forget a date was ever present (and came to pass later in the year when he missed a roadworthiness inspection). Given all that is known about the Claimant’s conscientious attitude, as I have already said, had the date been on the planner then I find it more likely than not that a reg 9 LOLER inspection would have been carried out, and this would have identified the defects on the upper deck and prevented the accident.

I find that there was a joint failure by both the Claimant and Mr Sippitts to deal properly with the LOLER issue. They both knew an inspection was due, and both failed in different ways to make sure it was carried out. On a just and equitable basis, I find that the Claimant was 40% responsible, and the damages will accordingly be reduced by that amount.

It seems me that the claim must fail on the simple basis that the agreement between Brands and Trax did not include inspection of the upper deck safety rails as part of a reg 9 LOLER thorough inspection, and that as a matter of fact this was known to the Claimant.

This was Mr Simpson’s clear evidence and I have no basis for rejecting it. He gave cogent reasons why that was so – not the least of which was that Trax did not have the necessary specialist equipment it would have needed to carry out such inspections, which the Claimant (and his father) knew.

Mr Simpson’s evidence was corroborated by Mr Wheeler’s evidence. (‘They’re all completed at road level and the upper deck does not form part of the inspection’, 15 February 2022, p66). Whatever was said on Trax’ website about offering LOLER inspections, so far as the Claimant and Brands was concerned, it did not and was not asked to do so with respect to the transporter.

I noted earlier the ambiguity in the November inspection report and its reference to safety rails. Mr Simpson’s evidence was that this form was just a generic download, applicable to different types of vehicles. I am unable to place too much reliance on this document, because there was no real evidence about it, other than that Mr Wheeler completed it and Mr Simpson signed it off. I am unable to conclude that it evidenced work at height. Further, there was no evidence the Claimant ever relied upon it as evidence that all was well on the upper deck, and that the rails were in a safe condition.

It is particularly relevant that Tony Carr worked for Trax on a freelance basis. I can therefore safely conclude he would know what work it did or did not do. He was involved in the purchase of the transporter. At no stage did he say that Trax carried out LOLER work, let alone that he thought it was doing so on the transporter.

Given the Claimant knew he needed a LOLER inspection, and knew that Trax was not doing such an inspection, I reject the claim that Trax was at fault for not telling the Claimant of the need for such an inspection. Had it done so, it would just have been telling him what he already knew.

I therefore reject Brands’ claim against Trax.

There will, accordingly, be judgment for the Claimant in these terms. Brands’ claim against Trax is dismissed.

I invite the parties to draw up an order consistent with the terms of this judgment.