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Injury Claims: ‘Tell the defendant the case against them’

The case of Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB) involved a gentleman who was injured at work when he fell from the back of his employer’s lorry whilst making a delivery of goods.

The tailgate of the lorry had been lowered to the ground to deliver the goods. The Claimant, Mr Walsh, had remained in the back of lorry and suffered a serious head injury as a result of the falling from the back of the lorry to the ground, which was a fall of around 1 metre.

Mr Walsh started Court proceedings against his employer, who denied liability (i.e., blame for the accident). Nobody witnessed Mr Walsh fall from the lorry. It was decided by the Court that liability should be determined at a preliminary hearing.

His Honour Judge Simpkiss, sitting at Dartford County Court, heard the evidence from both parties in October 2018.  HHJ Simpkiss handed down his decision in March 2019, which was to dismiss Mr Walsh’s claim against his employer. HHJ Simpkiss was of the opinion that Mr Walsh’s employer could not have taken any further steps to avoid this type of accident happening.

Appeal Lodged

An appeal was lodged by Mr Walsh at the High Court in an attempt to overturn the decision to dismiss his case.

The appeal was considered by Mr Justice Martin Spencer in January 2020, who overturned the decision of HHJ Simpkiss and found Mr Walsh’s employer to be to blame for the accident. Justice Spencer did, however, consider that the Claimant had contributed to the accident taking place and assessed contributory negligence at 50%.

What makes this case interesting from a legal prospective are the comments made by HHJ Simpkiss and Justice Spencer regarding the need to inform the Defendant of the case that is to be put against them.

In the Particulars of Claim, which is the Court document where the person bringing the claim should set out his/her claim, Mr Walsh’s representative put the following reasons why they considered his employer to be at fault for the accident:

  • To ensure that the delivery operation was properly planned, supervised and carried out in a manner that was reasonably practicably safe
  • To conduct a suitable and sufficient risk assessment
  • To take suitable and sufficient measures to prevent any person falling a distance liable to cause injury and in particular to ensure that the tail lift was always raised when Mr Walsh was moving within the lorry and to provide equipment such as a harness
  • To ensure that the lorry was constructed or adapted so as to be suitable
  • To train Mr Walsh adequately in safe method to be adopted in unloading pallets
  • To ensure the Mr Walsh specifically understood the method to be adopted and the risk associated with the method he did adopt

However, when questioning a representative of Mr Walsh’s employer at that the liability trial, Mr Walsh’s representatives also suggested further ways the accident could have been avoided:

  • By the painting yellow hatched marks on the floor of lorry for the last half metre to alert people to the fact they were close to the edge
  • The wearing of Hard Hats

Both HHJ Simpkiss and Justice Spencer were at pains to point out that if the Claimant only produces at trial, a list of steps which might have been taken to avoid the accident, then it is impracticable, unreasonable and unfair for the Defendant to be criticised for not having evidence in relation to them.

Lessons Learnt

The lesson to be learned from this case is to ensure that you include in your Particulars of Claim, all of the reasons why you consider the Defendant to be to blame for causing the accident. This is so that the Defendant has the necessary opportunity to address each of the reasons why the person bringing the claim thinks they are at fault for the accident.

Posted on Jan 30th, 2020 by Lyons Davidson

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