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No Slip-ups as Serious Injury Claim is Successfully Defended at Trial

Medico Legal

Clyde & Co are pleased to report the successful defence of a claim after a site supervisor sustained a serious arm injury following an alleged accident at work.

Background

The accident occurred when the Claimant, then a site supervisor employed by the Defendant, was entering his porta-cabin office at a site depot. The Claimant alleged he slipped on a raised weather strip which formed a threshold at the entrance of the cabin.

The Claimant sustained a severe injury to his right distal radius. Unfortunately, he went on to develop chronic regional pain syndrome (CRPS). Carpal tunnel decompression surgery proved unsuccessful and left the Claimant with problems with wound healing and ongoing symptoms of pain.

The Claimant underwent further surgery abroad which brought about a significant improvement in his condition.

Proceedings

The Claimant bought a claim against his former employers on the basis that the accident was caused by the Defendant's breach of duty. The claim was valued in excess of £150,000. The case involved two liability engineering experts giving oral evidence at a 2 day trial.

The Claimant pleaded his case pursuant to the Occupiers' Liability Act 1957 and/or in negligence. He alleged that the Defendant failed to: i

nstall a rubber non-slip inlay within the weather strip threshold; or apply non-slip paint/grip tape to the threshold.

The Claimant's expert also stated that various British Standards applied to the weather strip/threshold of the porta-cabin, and that these had not been complied with by the Defendant.

In response, our Defence was that: There was ambiguity surrounding the accident and whether the Claimant in fact tripped, rather than slipped, as the medical records recorded a tripping incident.

The Claimant had presumably been in and out of the cabin on many occasions before the accident without difficulty. Furthermore there were no other accidents at this site and they have had no report of a similar accident.

The Court of Appeal decisions in Marks & Spencer v Palmer [2001] EWCA Civ 1528 and Taylor v Wincanton Group Ltd [B3/2009/0991] suggest that the Courts should be slow to characterise every day features of steps/entranceways as actionable breaches of duty. Both cases stressed the need for realism when considering hazards of this kind that occur widely.

If the Claimant was able to establish the breaches of duty alleged, causation was not proven. It was difficult to see how non-slip paint or grip tape would have avoided the accident on the balance of probabilities.

We submitted that in order for the Court to make such a finding it would require:

u evidence as to the slip resistance of the surface that the Claimant encountered

u the particular type of non-slip paint/grip tape that should have been applied.

The Claimant's expert did not carry out any objective tests in relation to the first issue and made no specific recommendations in relation to the second issue.

In response to the British Standards cited by the Claimant's expert, we responded that these provide guidance for those who design stairs, ladders and walkways. The Defendant did not design the portacabin in question and in any event, the accident oc curred at a door threshold, not on a step.

We were confident in the strength of our defence and proceeded to a final hearing.

Outcome

The case was heard at a 2 day trial at Brighton County Court and the Claimant's case was dismissed in its entirety.

What can we learn?

The case gives comfort to employers and/or occupiers of land who have porta-cabins on site throughout England and Wales, and provides guidance going forward as to how the Courts will deal with such a claim. The emphasis we placed on previous cases stressing the need for practicality when con sidering everyday hazards supported our position.

This is a good example of a case in which design becomes a key feature in respect of whether various British Standards apply to the design of stairs, ladders and walkways. The Claimant's efforts to place fault at the door of the Defendant for the design of the porta-cabin were unsuccessful.

We engaged our expert engineers early in the claim to allow us to ensure that the Defence of the claim was as strong as possible. These efforts were rewarded in the successful dismissal of the claim.

The claim was handled by Paul Smith, Legal Director, of Clyde & Co LLP, Casualty, London. Matthew Boyle of Crown Office Chambers provided representation at Court.

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