This was an appeal by the Grafton Group trading as Plumbase, the Part 20 defendant, against an order finding that Plumbase was negligent in respect of an accident at work sustained by the claimant Andrew Smith, a delivery-man employed by Plumbase. Smith had injured himself when a plank gave way while carrying radiators over a walkway.
In the proceedings Smith claimed damages for personal injuries sustained while working at a building site occupied by S Notaro Ltd, the defendant and Part 20 Claimant. Notaro joined Plumbase as Part 20 defendant. The recorder found all three parties to blame for the accident.
He found Notaro to be in breach of a duty owed to the claimant under Regulation 5(1) of the Construction (Health, Safety and Welfare) Regulations 1996, namely a duty to provide, so far as reasonably practicable, a suitable and safe access and egress to and from every place of work. He found the claimant, Mr Smith, guilty of contributory negligence to the extent of 60%. He further found that the Part 20 claim by Notaro against Plumbase succeeded on the basis that, in failing to give Smith any formal training in the avoiding of risks of handling goods, Plumbase was in breach of a statutory duty owed to him under Regulation 4(1) of the Manual Handling Operations Regulations 1992.
The recorder apportioned liability one thirds to Notaro and two thirds to Plumbase. Accordingly Plumbase was ordered to contribute 拢10,656 to Notaro鈥檚 liability of 拢16,000.
The issue was whether Plumbase was liable to make any contribution to Notaro鈥檚 liability, and if so whether the apportionment was too great.
Plumbase conceded that it was in breach of the Manual Handling Operations Regulations but submitted that it was a technical breach that did not cause Mr Smith鈥檚 accident.
Reference
The Court held that proper training under the Manual Handling Operations Regulations required a warning to be impressed upon the minds of employees. In the context of deliveries to building sites it required an employer to train and/or warn an employee about the inherent dangers of carrying loads along temporary walkways. Accordingly, the recorder was correct in holding that Plumbase was in breach of its statutory duty.
In respect of apportionment, the Court held that it rarely interfered with a trial judge鈥檚 assessment. Nevertheless the apportionment in this case did not represent the justice of the case. Notaro was responsible for the unsafe walkway and it was its responsibility to ensure it was safe, which it had failed to do. As against this Plumbase鈥檚 breach, while not just a technical breach, was in respect of a lack of training in an area that involved little more than the exercise of common sense. Accordingly, the recorder鈥檚 findings were wrong and the Court reversed the apportionment, making it one third Plumbase and two thirds Notaro.
*Full case details
Andrew Robert Smith and S Notaro Ltd vs S Notaro Ltd and Grafton Group Plc (T/A Plumbase), Court of Appeal, LJ Ward, LJ Rix and LJ Cage, [2006] EWCA Civ 775
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
Postscript
This is an important decision, clarifying the extent of to which the Manual Handling Operations Regulations apply. Employers of delivery men who are required to make deliveries to building sites should be aware of the need to train and/or warn an employee about the dangers of carrying loads along temporary walkways in order to avoid attracting liability under the Regulations.
