Dean Ward & Anor v BCA Automotive Ltd

Following the settlement of the Second Claimant’s claim, the trial proceeded solely in respect of the First Claimant’s claim for damages arising from injuries sustained on 24 January 2020, during the course of his employment as a car transporter driver for the Defendant.

The First Claimant (the “Claimant”) sustained injury when he fell from the deck of an Odyssey car transporter (the “Odyssey”), which was at the time being operated by another employee of the Defendant, Mr Richard Harrison. Having completed the task of releasing the straps securing a vehicle, the Claimant was in the process of dismounting from deck 8 of Mr Harrison’s Odyssey when he stepped backwards, slipped and fell, suffering a compound articular fracture of his right elbow.

The Claimant contends that the Odyssey provided restricted deck space which had not been subject to a proper risk assessment and on which he had not received adequate training. As a consequence, he was unable to maintain three points of contact as required by his training. He asserts that this necessitated releasing his grip on a “wheel hoop” while dismounting, or alternatively that he was effectively compelled to do so by the Defendant’s failings, and that this negligence caused him to fall and sustain injury.

In the ‘Supplementary Skeleton Argument for Submissions on 28 November 2025’, learned counsel, Mr Cramsie, on behalf of the Claimant identified the Defendant’s alleged breaches of its employer’s duty of care as follows:

The Claimant submits that had these measures been implemented he would likely have adhered to the training and dismounted safely, thereby avoiding injury.

It is common ground that the Defendant owed the Claimant a duty to take reasonable care for his health and safety. The Defendant denies any breach of that duty, asserting that the system for dismounting from the Odyssey was reasonably safe and that the Claimant received appropriate training in its use. As to causation, the Defendant contends that the accident occurred solely because the Claimant failed to follow his training when dismounting from the transporter.

An employer’s duty to take reasonable care for an employee’s health and safety was described by Stanwick J, in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, as follows:

“The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience that they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

The duty includes the provision of a proper safe system of work, as stated in the following terms by Lord Oaksey in General Cleaning Contractors v Christmas [1953] AC 181 [at 180]:

“It is in my opinion for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves…”

Additionally, and consistent with section 69 of the Enterprise and Regulatory Reform Act 2013, the Claimant relies upon the following statutory duties as relevant to its claim that the Defendant breached its employer’s duty of care:

In support of the submission that the Defendant failed to carry out a proper risk assessment when introducing the Odyssey into its fleet, the Claimant relies upon the following passages from Kennedy v Cordia (Services) LLP [2016] UKSC 6:

“110.

The context in which the common law of employers' liability has to be applied has changed since 1909, when Morton v William Dixon Ltd 1909 SC 807 was decided. As Smith LJ observed in Threlfall v Kingston-upon-Hull City Council [2011] ICR 209, para 35 (quoted by the Lord Ordinary in the present case), in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. In many circumstances, as in those of the present case, a statutory duty to conduct such an assessment has been imposed. The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk. The duty to carry out such an assessment is therefore, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics plc [2004] ICR 975, para 49, logically anterior to determining what precautions a reasonable employer would have taken in order to fulfil his common law duty of care.

111.

It follows that the employer's duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious. A less outdated formulation of the employer's common law duty of care can be found in Baker v Quantum Clothing Group Ltd (formerly Taymil Ltd) (Guy Warwick Ltd intervening) [2011] ICR 523 , para 9.”

In response, the Defendant submits not every task or change to a method of working requires a fresh risk assessment to be undertaken. In Koonjul v Thameslink Healthcare Services [2000] PIQR P123 Hale LJ (as she then was) said:

“10.

For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have.

11.

However, in making such assessments there has to be an element of realism. As the Guidance on the regulations points out, in appendix 1 at paragraph 3: ‘…a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort...’

13.

It also seems to me clear to be that the question of what does involve a risk of injury must be context−based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved. In this case, we have a small residential home with a small number of employees. But those employees were carrying out what may be regarded as everyday tasks, and this particular employee had been carrying out such tasks for a very long time indeed. The employer in seeking to assess the risks is entitled to take that into account.

14.

Furthermore, when one comes to the question of whether there was indeed a risk in this case, one has to bear in mind that this particular employee accepted that she had been taught in the hospital that if she bent down she had to keep her knees bent and her back straight. She knew, therefore, as a result of her employment of long standing, how to go about tasks which involved pulling, pushing or lifting, for which it might be necessary to reduce her height. Furthermore, she had also gone on a Moving and Handling Course at the Faculty of Health at the University of Greenwich in June 1995, some ten months before the accident; the content of that course makes it plain that it entailed the principles involved in avoiding injury when carrying out manual handling tasks of the sort involved, in particular, in lifting patients; but those principles are of course applicable in other contexts as well. So that is the context in which the employer would be approaching the assessment of risk.”

The Claimant submits that when the Defendant introduced the Odyssey into its fleet in 2014, it ought to have carried out a formal risk assessment specifically addressing the new design and whether it created any additional risk for drivers. The Odyssey’s deck 1, positioned above deck 8 from which the Claimant was dismounting, was approximately 18 inches longer than deck 1 on the 11+. According to the Claimant, this resulted in reduced space on the Odyssey for manoeuvring and dismounting. It is submitted that a proper assessment would, or should, have identified this risk. In short, as recognised in Kennedy v Cordia (Services) LLP, there was a failure to seek out knowledge of risks “which are not in themselves obvious.”

Secondly, the Claimant contends that, following such a risk assessment, training for the Odyssey should have included a warning about the restricted space at the front of deck 8 (as compared with the 11+) and guidance on safer methods of access and egress. This could have been by extending deck 8 or, as demonstrated in a video by the Defendant’s Quality, Health, Safety and Environment Manager, Mr Simon Todd, by dismounting via the front of deck 8. The Claimant argues that, in the absence of such measures, the health and safety training provided was inadequate.

It was accepted that the Odyssey was a relatively new transporter for the Claimant, whose extensive experience as a car transporter driver had been with the 11+. However, the Odyssey had been part of the Defendant’s fleet since about 2014 and its design was based on another transporter type within the fleet, known as the Rolfo.

The Defendant concedes that a risk assessment was generally required but submits that, on the evidence of Mr Todd, such an assessment would have been undertaken when the Odyssey first came into operation in or around 2013/14. Further, the Defendant contends that the introduction of the Odyssey in 2014 did not amount to a “significant change” within the meaning of regulation 3 of the Management of Health and Safety at Work Regulations 1999, given its design was derived from the Rolfo. Accordingly, the Defendant argues it was reasonable for employees to address the reduced space on deck 8 without the need for a fresh risk assessment.

Training provided to the Defendant’s employees included the ‘Safe Systems of Work’, which required three points of contact to be maintained when dismounting from a deck. The Defendant therefore submits that the training delivered to the Claimant was adequate as required by regulation 9 of the Provision and Use of Work Equipment Regulations 1998.

Despite Mr Todd’s evidence that a risk assessment would have been performed in about 2013/14, there is no reliable independent evidence supporting this assertion. Further, this appears inconsistent with Mr Todd’s witness statement. At paragraph 62, whilst referring to the Defendant’s ‘Generic Car Transporter Risk Assessment’, exhibit ST14, he states:

“I did not update the assessment on account of the Odyssey model of transporter being introduced to the fleet. This is because I consider the risks to be the same regardless of the model of transporter. Indeed, across the company, we have 16 different variants of transporter and the process is the same across all variants, certainly in respect of securing/unloading vehicles and access and egress from the deck.”

In my judgment, a reasonably prudent employer would have conducted a risk assessment following the introduction of a new vehicle into its fleet, particularly so in the case of a vehicle of the size of a car transporter. As Mr Todd conceded in cross-examination, the wheel hoop on the Odyssey was higher than on the 11+. Depending on a driver’s height, for example, the effect of that difference might convert a previously safe method of dismounting on the 11+ into a method which is no longer safe on the Odyssey. A modern employer’s duty of care requires a sufficiently proactive approach that identifies such differences and potential risks to its employees. The evidence from Mr Godber, that many drivers were experienced on the 11+ with the result that ‘muscle memory’ was a ‘big problem’, reinforces this.

In his witness statement, Mr Todd asserted that he regarded “the risks to be the same regardless of the model of transporter.” That position is difficult to reconcile with the principle that the duty to undertake a risk assessment is “logically anterior to determining what precautions a reasonable employer would have taken” (Lord Walker of Gestingthorpe in Fytche v Wincanton Logistics plc). Similarly, in Kennedy v Cordia (Services) LLP, the Supreme Court stated: “the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety.” Absent such an assessment, assumptions are liable to be made and material risks may simply not be identified.

However, I do not find that a failure to specifically address the introduction of a new transporter, in a risk assessment, necessarily means that the Defendant breached its duty to take reasonable care for the Claimant’s health and safety. There was no dispute that a risk assessment was in place before the Claimant’s accident in 2020, and included a section: ‘Stepping down from Transporter body or drivers cab.’ It provides:

“Drivers trained to ensure area dismounting from is offering maximum protection of anti-slip and 3 points of contact. Drivers also trained to check the area in which they are stepping into is free from hazards Eg. pot holes, contamination, equipment, etc. Ref: SSW04 Mounting & Dismounting Transporters.”

Whilst the risk assessment that was in place is a generic document that is not aimed towards any particular transporter variant, it makes reference to ‘SSW04’, the Defendant’s ‘SAFE SYSTEM of WORK: Mounting & Dismounting Transporters’, dated February 2017. Paragraph 9, ‘Important Points’, provides: “When mounting and dismounting cabs, trailers or catwalks ensure you maintain THREE points of contact at all times.” SSW04 includes sections on ‘Lower Deck Access & Egress’ and ‘Dismounting the Transporter’, which the Claimant was familiar with and received training upon.

The Claimant’s ‘Car Transporter Training Record’ and the witness statement from Mr Cliver Pointer show the Claimant received training for the Odyssey on 9 and 10 September 2019 by Mr Pointer. Mr Pointer recorded the Claimant “followed the established Safe Working Practices and SSW” (the Safe System of Work). Similarly, the Claimant marked the document confirming receipt of training relating to “Safe Working Practices associated with the loading / unloading and operation of the transporter.”

It is correct that the document records the Claimant requested additional training. The Claimant’s evidence was that this related to mounting and dismounting, and how to use desks 8 and 9. The Driver Trainer, Mr Robert Godber, in evidence vaguely recalled having a conversation about deck 8 or 9. Mr Pointer recalled speaking with Mr Godber and together they introduced a suggestion that drivers could extend lower deck 8 if they wished to, given the reduced deck 8 space on the Odyssey. However, according to Mr Pointer, the way in which deck 8 operates is the same on the Odyssey as it was on the 11+, meaning drivers were aware that the scissor deck can be moved in and out.

Mr Pointer accepted additional training was requested by the Claimant, which was then provided by Mr Questey. Mr Pointer described this was for the Claimant to familiarise himself with the Odyssey. This was because decks 9 and 10 on the Odyssey were known as “floating desks”, whereas on the 11+ they were fixed. However, the Claimant did not need additional training on how to safely egress from the Odyssey. Indeed, he demonstrated to Mr Pointer that he could mount and dismount decks 8 and 1 safely, applying three points of contact, as required by the Safe System of Working.

Whilst this was at odds with the Claimant’s evidence that he did not receive training on mounting and dismounting, in his witness statement dated 16 October 2023, the Claimant conceded: “This is something we were all familiar with in any event as the practice was no different from that required on the vehicles we were used to.” Similarly, the employee in Koonjul v Thameslink Healthcare Services also knew, as a result of her employment of long standing, how to go about tasks which involved pulling, pushing or lifting, for which it might be necessary to reduce her height. Like the Claimant, she too had attended a relevant training course a few months before the accident, specifically on avoiding injury when carrying out manual handling tasks such as the lifting of patients.

Thus whilst the Claimant’s experience does not absolve the Defendant from its duty to take reasonable care for the Defendant’s health and safety, the Claimant was familiar with the Safe System of Work that was identified in a risk assessment that was in place before the accident, and which stipulated the requirement for three points of contact.

In evidence the Claimant explained that he did not maintain three points of contact “because he couldn’t do it.” When asked why he did not dismount by placing both hands down on to the deck (one of the photographed methods of dismounting in the Safe System of Work), he said words to the effect, “Because that’s what we’ve just done, hand on hoop, then step down.”

Holding a wheel hoop to lower himself is a method that appears consistent with the Safe System of Work as long as a driver maintains three points of contact, which the Claimant did not. Whilst the Claimant’s evidence was to the effect that he was unable to lower himself without letting go of the hoop, the evidence of Mr Godber, Mr Pointer and Mr Todd was that each witness was able to maintain three points of contact when dismounting in this manner. Notably, all three witnesses are shorter than the Claimant. The Claimant is 5’11”, whereas Mr Godber is 5’10’’, Mr Pointer is 5’8’’ and Mr Todd is 175cm (about 5’8”). Mr Todd’s evidence was supported by photographs and a video. Therefore, I do not find the Claimant’s evidence on this issue to be reliable. Indeed, in closing, learned counsel, Mr Cramsie, conceded it may have been possible for the Claimant to have stepped down without letting go of the hoop.

Drivers gave evidence of alternative methods for dismounting that maintained three points of contact. These included the use of a ladder (when drivers may have to crouch underneath cars when using), kneeling or bending down to the deck in order to descend backwards and stepping onto a plate between decks 8 and 7, as demonstrated by Mr Todd in photographs and a video. Under cross-examination, the Claimant agreed the Safe System of Work correctly describes that sometimes drivers must crouch underneath cars, which would regularly occur: “Ensure that your feet are firmly positioned and you are in a balanced position either stood up or crouched down alongside the vehicle.”

The Defendant’s Safe System of Work was consistent with industry standards for those working on transporters, in particular the ‘Vehicle Logistics Safe Loading Code of Practice 2022.’ Like the Safe System of Work, the Code equally emphasises caution, secure footing and a balanced position with a minimum of three points of contact. There was some evidence from the Claimant’s expert witness, Mr McFeely, that it was not possible to achieve three points of contact when disembarking by the method of holding onto the deck itself (and that it should not be conducted whilst descending backwards). However, this was not directly relevant as the Claimant did not descend in that manner. Additionally, the principle of maintaining three points of contact appears to have been a recognised practice and there was no evidence brought to my attention that demonstrated it is “clearly bad” (as per Stanwick J in Stokes).

Whilst I find that a risk assessment ought to have been undertaken upon the introduction of the Odyssey into the Defendant’s fleet, I am satisfied that the Defendant provided suitable and sufficient measures to prevent the Claimant from falling. A risk assessment was in place prior to the accident in 2020 which identified dismounting from the transporter as a risk. That assessment provided for mitigation through appropriate training, including instruction on dismounting using three points of contact in accordance with the Safe System of Work. The evidence demonstrates that the Claimant completed this training for the Odyssey. Further, the Claimant’s own witness statement confirmed that the practice of mounting and dismounting on the Odyssey ‘was no different from that required on the vehicles we were used to.’ In those circumstances, and on the balance of probabilities, I am not persuaded that the Claimant has established that the Defendant breached its duty to take reasonable care for his health and safety.

Even if the Claimant were able to prove breach of duty, he must then prove that the breach caused injury which was reasonably foreseeable. The ‘but for’ test was restated by Lord Nicholls in Fairchild v Glenhavan Funeral Services Limited [2003] 1 AC 32 in the following terms:

“In the normal way, in order to prove damages for negligence, a plaintiff must prove that but for the Defendant’s wrongful conduct he would not have sustained the harm or loss in question. He must establish at least this degree of causal connection between his damage and the Defendant’s conduct before the Defendant will be held responsible for the damage.”

The Claimant submits that the Defendant’s breaches of duty caused him to fall from the transporter. Had a proper risk assessment been completed on the effect of the differences between the two transporters (the 11+ and the Odyssey), and training provided on how to mitigate those effects, the Claimant submits it is likely he would have followed that training and dismounted more safely, thereby avoiding injury.

The Defendant submits the accident was caused solely by the Claimant’s failure to follow the Safe System of Work, including the maintenance of three points of contact when dismounting. The Defendant suggests this may have been because the Claimant was impatient and rushing, or not taking sufficient care.

The accident occurred on a Friday afternoon. In evidence the Claimant accepted he had been waiting for Mr Harrison to unload his Odyssey, when he took it upon himself to unload one of the cars on Mr Harrison’s Odyssey. He was not asked to do so. In his statement, Mr Harrison explained there was not enough space in the yard and the Claimant had to wait for Mr Harrison to finish unloading before the Claimant could enter. Mr Harrison’s evidence was that the Claimant asked Mr Harrison how long he was going to be. His impression was that the Claimant was in a hurry, a view that Mr Harrison repeated in evidence, although accepted it was possible he may be incorrect.

There was no dispute that the Claimant had a history of disciplinary matters, some of which appeared consistent with impatience or a lack of care. Specifically, in 2012 (about eight years before the accident), the Claimant was reprimanded for failing to record half of a month’s deliveries correctly. In 2014 (six years before the accident), he received a verbal warning for failing to carry out daily checks and remedy a defective tyre. In 2019 (less than a year before the accident), he was issued a verbal warning for gross misconduct for breaches of the tie-down policy relating to loading.

Coupled with my earlier finding that I did not find reliable the Claimant’s evidence that he was unable to maintain three points of contact when dismounting using the hoop, the conclusion I reach is that the Claimant was able to keep a hold of the hoop when dismounting. He had available to him other methods of dismounting, which would, in my judgment, have been obvious to him given his 30+ years of experience as a HGV driver, including using the ladder or kneeling or bending down to the deck in order to descend backwards (or even stepping onto the plate between decks 8 and 7). Given the evidence and my findings, the reasonable inference I make is that the Claimant was in a hurry and not taking sufficient care. This leads me to conclude that it was because of this that the Claimant decided to unload one of Mr Harrison’s cars and decided against using a ladder, or kneeling or bending down to descend. It also explains why the Claimant let go of the ‘wheel hoop’ when dismounting by his chosen method, thereby losing three points of contact.

For the above reasons, I do not find proven that the Defendant breached its employer’s duty to take reasonable care of the Defendant’s health and safety, nor that any breach caused the Claimant’s injury.