The recent case of Craner v Dorset County Council, considered the evidential burden in a tripping claim. The claimant worked as a handyman and caretaker at a school. In August 2003, he was pushing a wheeled trolley along a paved area. The trolley contacted a raised slab and came to an abrupt halt. The claimant's right knee struck the trolley and he suffered an immediate injury. The claimant had two operations to his right knee. He commenced proceedings against the authority, asserting that it had either failed to keep the paved area of the workplace free from obstruction within reg 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992, and/or that it had provided him with an unsuitable trolley within reg 4 of the Provision and Use of Work Equipment Regulations 1998.

The judge concluded that the raised slab had constituted a safety hazard and that the defendant was in breach of the 1992 Regulations, and also the 1998 Regulations since the trolley had been unsuitable for work equipment. He could not make a precise finding about the height of the raised slab over that of a neighbouring slab, and he rejected evidence of an assistant insurance and risk manager of the defendant, regarding the height of the slab because he considered it inconsistent with the photographs. The judge found that the protrusion had been sufficient to bring the wheels of the trolley to a halt and cause the claimant's knee to come into contact with the trolley.

The defendant appealed against that decision.

Appeal

The defendant submitted that the raised paving slab of an inch or less could not constitute any risk to health and safety, and that the trolley had been unsuitable for its intended purpose. It further contended that what had occurred had been a freak or inexplicable accident.

The appeal was dismissed. The court held that whilst the evidence before the judge had been scanty, he had not been wrong to reach the conclusion he had. The accident had not been a freak accident. The judge had erred in finding that the trolley had been unsuitable equipment within the 1998 Regulations; however, that did not conclude the instant matter in the defendant's favour.

The judgment stated that the evidence was painfully thin. No one had taken irrefutable measurements of the distance of the protrusion of the relevant slab over the neighbouring slab. No one had done any controlled experiment with the trolley in order to see what had actually happened to cause the accident. It was not possible for the judge to make any precise finding about the height of the raised slab over that of its neighbour. The judgement stated that it was a lamentable basis on which to invite a judge to decide a case, and that the defendants really cannot now complain that the judge found for the claimant.

The attitude of the defendant was merely that other matters at the school had a higher maintenance priority than the paving stones. The court held that was entirely understandable but did not, of itself, afford any defence to a claim which alleged breach of the regulations. The court held that the fact remains that the Regulations exist and that to a large extent they replace the old common law of negligence. The Regulations therefore impose a higher standard of liability as employers than a mere negligence liability.

Evidence is important

The case highlights the importance of conducting a thorough investigation and collecting factual evidence. Had the defendant been in possession of factual evidence they would have been in a stronger position to be able to refute the Claimant’s claim. The Defendant had sought to undermine the Claimant’s credibility and show that the Claimant was exaggerating his injury. Although arguments such as these can, and do, play an important part of defending a claim, this case demonstrates that a claim can not be defendant solely on the basis of credibility and nothing can substitute collecting hard factual evidence.

Money, money, money

The case also illustrates that public bodies will be unable to rely on arguments about resources as a defence to claim. The judge made it clear that although it was understandable that public bodies may have matters which have a higher priority, the Regulations must always be complied with so far as is reasonably practicable. Resource issues can not be, and will not be, accepted by the courts, as a reason for non-compliance with the Regulations.

Mari Osborne can be contacted by telephone on 029 2038 5923 or by email.