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Clyde & Co successfully defend HGV personal injury accident claim

  • 28 April 2020 28 April 2020
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co have successfully defended a claim in which it was alleged our client was responsible for serious injuries suffered by an articulated lorry driver during his employment. The driver sustained injuries after an articulated lorry and trailer unit rolled over him as he was attempting to couple them.

Clyde & Co successfully defend HGV personal injury accident claim

Harris v (1) Bartrums Haulage and Storage Ltd (2) Paul Andre Rombough t/a Par European [2020] EWHC 900 (QB)

Our client, a haulage and storage company, was found not liable for the accident and the Claimant’s injuries. Whilst a failure by our client to provide a suitable induction and risk assessment was identified by the Court, it was considered not to be causative. The Court emphasised that “if there was a breach of duty, the Claimant is still required to show that the breach was a cause of the injury.”

The Claimant’s claim was dismissed.

Background

The Claimant, a trained and very experienced professional driver, sustained serious injuries following an accident at work on 24 February 2015 when a tractor and trailer unit rolled over him. Neither the brakes of the tractor nor the trailer were applied at the time.

Clyde & Co acted for the First Defendant (D1), the haulage and storage company, employers of the Claimant.  The Claimant had worked for the Defendant in an agency capacity for a number of months, and had become an employee approximately two weeks pre-accident.

The Claimant also pursued a claim against the Second Defendant (D2), a self-employed individual who had deposited the loaded trailer in a yard.

The Claimant’s task on the date of the accident was to drive the tractor unit to the yard and collect the loaded trailer. Whilst the Claimant was undertaking this task, he was seriously injured. The immediate cause was a failure to apply the handbrake in the tractor unit compounded by the fact the brake in the trailer unit was not applied at the time of the accident.

The Claimant alleged D1 failed to provide:

  • Adequate training and supervision. It was alleged the induction process was inadequate as well as training in the safe coupling/uncoupling of tractor and trailer units process;

  • Risk assessments and a safe place of work by failing to risk assess the accident locus formally; and

  • A safe system of work and equipment generally, as well as further preventative measures such as chocks, automatic parking brakes and alarm systems.

The allegation against D2 was failure to engage the trailer parking brake once deposited at the yard.

The issue of liability was determined as a preliminary issue.

Accident

In identifying the circumstances by which the accident came about, the Court considered how the brakes may have come to be disengaged. It was noted that the tractor unit had a parking brake, which emitted a red light when engaged. When disengaged the light goes off, but if the driver opens the cab door, a warning alarm sounds and a message appears on the display panel reading "Apply parking brake". When the tractor is coupled with a trailer the tractor's parking brake also operates the brakes on the trailer via an air supply called a 'red suzie'.

The trailer also had service brakes, operated when the red suzie was connected, as well as a parking brake system applied by pulling out a red knob underneath the trailer.

The Court found that:

  • The parking brake on the trailer had been left on by D2; “the fact that the brake was clearly disapplied when the accident occurred does not mean the Second Defendant left it in that state.”

  • The Claimant was wrong to suggest there had been an audible alarm when he left the cab on the first occasion. On the second occasion he left the cab, the circumstances would have produced a series of warnings and alarms indicating he had disengaged the brake on the tractor.

  • The trailer parking brake was then disengaged by the Claimant. The Court acknowledged this was something the Claimant would “not normally do”, but his doing so was more likely than the other possibilities, specifically D2 had done so (already rejected) or an unidentified unhelpful stranger whom the Claimant recalled speaking to prior to the accident.

Judgment

The Court considered the allegations of negligence against D1 and acknowledged the Claimant had “by reason of his training and experience… a full understanding of the need to apply the brakes of the tractor and trailer.” The Court's view was that D1 was entitled to have regard to "knowledge of the Claimant’s abilities.”

On the issue of the Claimant’s induction, the Court disagreed with the practice of obtaining the Claimant’s signature declaring he had read the handbook, when he “manifestly could not have done so at that point.” However, a more thorough process would not have resulted in the Claimant applying safety measures differently.

The Claimant’s training was adequate, and nothing on this particular job required special training. Applying “the tractor handbrake before disapplying the parking brake trailer... is so obvious it hardly needs repeating.”

It was accepted there was “no formal, written risk assessment” of the yard carried out before the accident, but there was a general risk assessment in place for coupling and uncoupling tractors and trailers. Simply because an additional risk assessment might have been possible does not mean it was required if the “existing measures are in themselves reasonably believed to be adequate.” The lack of risk assessment was not causative of the accident.

As to the alleged lack of safe system of work, the additional precautions proposed by the Claimant were considered not to be without their own risk nor indeed standard. The Court ultimately reiterated the “simple proposition” that the risks of this particular yard were mitigated by the system of brakes and warnings already in place.

The Court accepted there were breaches of duty in relation to the Claimant's induction and risk assessment but neither breach was causative. As a result, the Claimant's case was dismissed.

The Judge was also satisfied with D2's evidence and found on the balance of probabilities he engaged the trailer parking brake before he left the yard. As such D2 was not negligent.

What can we learn?

  • Whilst D1 had provided the Claimant with an employee handbook, the company obtained the Claimant's signature confirming he had read it, when he had not yet done so. The Court criticised this approach stating it was "not sufficient" and "the attitude of the First Defendant towards induction, and risk assessment left a lot to be desired". Despite liability not attaching to D1, the judgment should serve to remind employers of the importance of suitable inductions for new employees and appropriate risk assessments.

  • The Claimant sought to rely upon the case of Kennedy v Cordia and Goldscheider v Royal Opera House to emphasise that risk assessments undertaken after the event "might not prove negligence but they made it difficult to say that all reasonably practical steps had previously been taken." Whilst the Judge accepted the law derived from these authorities, he emphasised that it was for the Court to "decide what precautions a reasonably prudent employer should have deployed to keep the Claimant safe during his work."

  • The selection of an appropriate expert was very important. The Claimant instructed a safety consultant expert with no specific expertise in the haulage industry. The judge described his approach as “somewhat general” and he did not find his evidence "particularly helpful or, where expressly critical of the First Defendant, persuasive." On the other hand, the instruction of chartered mechanical engineers by both Defendants was positively highlighted; noting the answering of questions “in a measured manner,” and descriptions which were of “particular assistance” to the Court.

Authors: Kate Duffy, Partner, and Rebecca Kenrick, Senior Associate

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