ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE PLATTS (Sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE RIMER
THE HONOURABLE MR JUSTICE WARREN
| DONALD BERRY (A PROTECTED PARTY PROCEEDING BY HIS LITIGATION FRIEND AND WIFE CAROL BERRY)
|- and -
|ASHTEAD PLANT HIRE CO. LIMITED & ORS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Christopher Melton QC (instructed by Fentons Solicitors LLP) for the Respondent
Hearing dates: 12th October 2011
Crown Copyright ©
Lord Justice Longmore:
"(1) The court may only make an order for an interim payment where any of the following conditions are satisfied -
(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;
(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;
(d) [relevant only to claims for the possession of land];
(e) in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied –
(i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and
(ii) all the defendants are either –
(a) a defendant that is insured in respect of the claim;
(b) a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or
(c) a defendant that is a public body."
"in such a manner as not to give rise, so far as is reasonably practicable, to danger"
and that no person was to engage in any work activity near any line conductor (other than one suitably covered in insulating material) so as to give rise to danger. He accordingly asked who was responsible for those breaches.
i) that it is quite possible that neither it nor Star Autos will be found liable. The responsibility for the accident is said to be, on any view, primarily that of Kendal Calling. At the time of the accident Mr Berry was not in the presence of either his employer or Ashtead and therefore they could not exercise any effective control over either Mr Berry or the situation on site; and
ii) that, even if it were shown that either Star Autos or Ashtead must be liable, the rule only applies if all the defendants are insured which was not the case since Kendal Calling (although not a defendant to the interim payment application) was, and is a defendant to the action and is uninsured.
It is convenient to deal with these points in reverse order.
Construction of CPR 25.7(1)(e)
"(1) If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied –
a) that the defendant against whom the order is sought (in this paragraph referred to as "the respondent") has admitted liability for the plaintiff's damages, or
b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or
c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them,
the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counter-claim on which the respondent may be entitled to rely.
(2) No order shall be made under paragraph (1), in an action for personal injuries if it appears to the Court that the defendant is not a person falling within one of the following categories, namely –
a) a person who is insured in respect of the plaintiff's claim or whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer concerned under the Motor Insurers' Bureau agreement:
b) a public authority; or
c) a person whose means and resources are such as to enable him to make the interim payment."
Here it is clear that the requirement of insurance applies to the person against whom the application for interim payment is being made. This has now been relaxed so as to require insurance to exist only in the case of alternate liability but it is difficult to believe that the framers of the rule, while relaxing that requirement, intended to refuse relief if it was the case that a defendant, who was not being asked to make an interim payment at all, happened to be uninsured.
Judgment against either Star Autos or Ashtead?
1) Common law negligence
2) Failure to provide a safe place and system of work
"The fact that the place of work is not under the control of the employer is only one factor in deciding whether the obligation to provide a safe place of work has been discharged. Although generally an employer owes no duty to employees as to the safety of the premises occupied by another, it will have to provide a system of work suitable for those premises. For example, window cleaning firms are not bound to inspect the premises of those whose windows they clean before sending men to clean them, but they must be taken to know that window sashes may move unexpectedly and should give instructions and provide any necessary implements accordingly."
This is supported by both Smith v Austin Lifts  1 WLR 100, and Cook v Square D Ltd  ICR 262. In the first case Lord Denning said (page 117):-
"Notwithstanding what was said in Taylor v Sims & Sims (1942) 167 L.T. 414 it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work, see General Cleaning Contractors Ltd v Christmas  A.C. 180: and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course, on the circumstances, see Wilson v Tyneside Window Cleaning Co.  2 QB 110."
In the second case, Farquharson LJ said (pages 268-9):-
"It is clear that in determining an employer's responsibility one has to look at all the circumstances of the case, including the place where the work is to be done, the nature of the building on the site concerned (if there is a building), the experience of the employee who is so despatched to work at such a site, the nature of the work he is required to carry out, the degree of control that the employer can reasonably exercise in the circumstances, and the employer's own knowledge of the defective state of the premises, as referred to in that last passage of the speech of Lord Denning.
There is no doubt that it is an employer's duty to take all reasonable steps to ensure the safety of his employees in the course of their employment. That has been said again and again, including those cases which I have just cited. There is also no doubt that the duty cannot be delegated, but the authorities show that the considerations which I have just summarised must be taken into account when the employee is injured on premises in the occupation of a third party. As was pointed out in Wilson's case, it depends on what is reasonable in all the circumstances."
"Is there sufficient clearance between the Long Mounted Crane and overhead hazards?"
On that occasion a negative answer was given. Mr Melton submitted that there was no evidence that any such form was given (let alone filled in) in July 2010 and that, in the absence of such form, Mr Berry had a cast iron case.
3) The Electricity at Work Regulations 1989
"3. Persons on whom duties are imposed by these Regulations
1) Except where otherwise expressly provided in these Regulations, it shall be the duty of every –
a) employer and self-employed person to comply with the provisions of these Regulations in so far as they relate to matters which are within his control.
2) It shall be the duty of every employee while at work –
a) to co-operate with his employer so far as is necessary to enable any duty placed on that employer by the provisions of these Regulations to be complied with; and
b) to comply with the provisions of these Regulations in so far as they relate to matters which are within his control.
4. Systems, work activities and protective equipment
1) All systems shall at all times be of such construction as to prevent, so far as is reasonably practicable, danger.
2) As may be necessary to prevent danger, all systems shall be maintained so as to prevent, so far as is reasonable practicable, such danger.
3) Every work activity, including operation, use and maintenance of a system and work near a system, shall be carried out in such a manner as not to give rise, so far as is reasonably practicable, to danger. …
14. Work on or near live conductors
No person shall be engaged in any work activity on or so near any live conductor (other than one suitably covered with insulating material so as to prevent danger) that danger may arise unless –
a) it is unreasonable in all circumstances for it to be dead; and
b) it is reasonable in all circumstances for him to be at work on or near it while it is live; and
c) suitable precautions (including where necessary the provision of suitable protective equipment) are taken to prevent injury."
"in so far as they relate to matters which are within his" [namely the employer's] "control."
The live conductors envisaged in regulation 14 were not within either Star Autos' or Ashtead's control because they were on land occupied by Kendal Calling and had nothing to do with either of them in their capacity as employers. The lorry mounted crane could, no doubt, be said to be within the control of Mr Berry's employer whoever that might be. But there is no evidence that the electrical system was not constructed or maintained to prevent danger within regulation 4(1) or 4(2). It is no doubt for that reason that it is regulation 4(3) on which Mr Berry places most reliance.
Lord Justice Rimer:
Mr Justice Warren: