BC Legal Successfully Defends EL Accident Claim at Trial: Smith v BCA Marketplace Plc (Nottingham County Court, 30 January 2020)

Last month, BC Legal won a trial at Nottingham County Court, in respect of a fast-track employers’ liability (EL) accident claim.

The claimant’s personal injuries arose out of an accident that was sustained during the course of his employment as a professional driver. He alleged that his back had been injured in the process of storing vehicle loading ramps (or ‘skids’) in a car transporter vehicle and that his employer had been negligent.

It was common ground that the car transporter had retractable ramps, which would be pulled out to load or unload vehicles, and then lifted and slid back into their housing, inside the transporter, once either process was complete.

In the present case, the claimant’s principal argument was that, whilst putting away one of the ramps, on 8 December 2015, ‘indentations, gouges and defects’ caused it to snag, resulting in musculoskeletal injury.

To protect its workers, the defendant established a safe system of work, whereby drivers were required to inspect ramps before each shift and report any defects. In the event of a driver reporting a defect, the defendant’s system dictated that the ramp should be repaired immediately.

Prior to the incident that occurred on 8 December 2015, the claimant had reported several similar accidents, involving the same vehicle.

The 1st accident happened on 16 July 2014, with the defendant having conceded liability and compensated the claimant for injuries incurred.

After the ramp had been repaired by the defendant, in compliance with its measures to combat defective equipment, the claimant reported a 2nd accident, on 30 July 2015.

However, an inspection, conducted by a workshop mechanic, identified no fault with the ramp’s operation and, as such, the defendant contended that the incident had not been caused by a defective ramp. This issue remained the subject of separate, ongoing litigation, at the date of trial. 

Despite the fact that no repair works had been deemed necessary (after the 2nd accident), aside from applying lubricant, the claimant continued to use the vehicle until the ‘index accident’ occurred, on 8 December 2015.

On this occasion, the claimant’s Accident Report Form attributed physical harm to debris-contaminated ramp runners that needed cleaning (a potential hazard which the defendant recognised in its own risk assessment), but made no reference to the ramp exhibiting ‘indentations, gouges or defects’. Curiously, the former was not pleaded in the Claimant’s Particulars of Claim, yet the latter was.

In fact, it was not until 11 December 2015, when he filed a Defect Report, that the claimant accused the ramp of having malfunctioned, though this allegation was not verified by mechanics.

The claimant did not return to work until April 2016.

Eventually (shortly after a minor 4th accident, on 4 July 2016), the claimant’s transporter was replaced with a different model, which had fully hydraulic ramps. This brought an end to reported incidents of ramps getting stuck and inducing injury.

At the trial of liability, the defendant submitted that the ramp could not have been faulty, as a 30mm clearance either side provided ample space for it to slide freely, irrespective of ‘indentations, gouges or defects’.

District Judge Wylie was minded to accept this argument and instead found, on the balance of probabilities, that the most likely explanation for the ramps being wedged in place was, as the defendant had acknowledged, because they were not being returned at the correct angle.

On the basis that the claimant was an experienced driver, who had been fully trained in the correct manual handling techniques for returning the ramps, he was considered to be the author of his own misfortune. Accordingly, his claim against the defendant was dismissed. 

We have since been informed that the claimant has discontinued pending legal action in regards to the 2nd accident, which transpired on 30 July 2015 – a domino effect, perhaps?

The case of Smith was handled by Jonathan Bluett, Head of BC Legal’s Cardiff Office.

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