England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
Recorder G McDermott QC
EWCA CIV 249

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/04/2016

Lord Justice Sales:

1. This is an appeal from the judgment of Recorder Gerard McDermott QC, sitting in the Liverpool County Court, in which he dismissed a claim for damages for personal injuries suffered by the appellant, brought against his employer, the respondent. The claim arises out of an accident at work on 26 November 2010 in which the appellant was driving a fork-lift truck and fell from it in circumstances where it then passed over his right leg, causing serious injury to that leg. The appellant was aged 30 at the time of the accident. In addition to his injury, he has suffered substantial loss of earnings. The Recorder's judgment was given at the trial on liability.
2. The appellant was employed as a driver of heavy goods vehicles. In April 2010 his duties were enlarged so that he was also engaged to operate fork lift trucks. That month he received training over a number of days in the operation of fork lift trucks. The practical component of his training course exclusively involved use of an electric fork lift truck. The fork lift truck he was using at the time of the accident was a gas powered Clark C25 fork lift truck, which has a different arrangement of accelerator and brake pedals and is more powerful for lifting operations, although it is slower. The appellant complains that the training he received was inadequate.
3. Also, the appellant was not wearing a seatbelt at the time of the accident. Although he had been told during his training that he should wear a seatbelt, he says that in fact the respondent did not take proper steps to ensure that employees did wear seatbelts when operating fork lift trucks. The respondent left it to employees to decide whether to wear a seatbelt or not and in practice condoned the non-wearing of seatbelts.
4. On 26 November 2010 the appellant arrived for work at the respondent's yard at about 7 am. He had to load his own HGV with pallets and selected the C25 fork lift truck and commenced doing this. He had only driven that type of fork lift truck once or twice before.
5. At about 7.30 am another employee, Brendan Douglas, asked the appellant to move another vehicle so that he could get his own HGV out of the yard. The appellant therefore had to park the fork lift truck in order to do that. In the course of manoeuvring to park the fork lift truck the appellant fell from it and it ran over his leg, causing injury to that leg. The circumstances in which the accident happened were in issue at the trial.
6. At different stages in the proceedings the appellant gave accounts of what happened which varied in material respects. In broad terms, the appellant's account was that his left foot had slipped off one of brake pedals as he drove at a modest speed during the manoeuvre, and from there had slipped down onto a lower footplate at the side of the fork lift truck (a part of the truck he described as "the foot well") with the result that he became unbalanced and fell to the ground. The fork lift truck was executing a turn, or he pulled on the steering wheel as he fell, and it ran over his leg.
7. The appellant's original version of events was that he was driving at only 3 mph when the accident occurred. A reconstruction of the incident using a C5 truck travelling at that speed showed that it was not possible that the accident had happened if the speed at which the truck was being driven was so low, and the appellant accepted this. In a supplementary statement he accepted that he must in fact have been travelling too fast in the circumstances, although he also said that it was no faster than the speed at which he would normally have travelled. In his oral evidence under cross-examination, he maintained that he "was on a slight turn and was slowing down" and was travelling at only about 5 to 6 mph when the accident occurred (see para. [12(q)] of the judgment). The respondent's case was that he had been going faster than that and that the accident was his own fault because of the excessive speed he had driven at and the tight turn he attempted.
8. The judge did not find the appellant to be a credible witness about the incident. In part this was because of the changes in significant details of his account, in part because he found the appellant to be rather evasive and lacking in candour in answering questions under cross-examination and in part because of evidence that at the time of the incident the appellant had been sitting firmly in the seat of the fork lift truck, so the judge assessed that it was unlikely that he could have become unbalanced to the point of falling out of the vehicle if events had transpired as he claimed: [72]-[73].
9. Although Mr Douglas gave evidence to support the broad account given by the appellant, the judge did not find his evidence persuasive, in particular because he had not had a good view of the incident as he was seated in the cab of his HGV on the far side from where the accident occurred and in view of the differences between his account and that of the appellant in relation to significant details. The judge considered that Mr Douglas's evidence involved an element of reconstruction: [73]-[74].
10. The judge stated his conclusion on the evidence at [72] as follows:

"I have considered the Claimant's evidence very carefully, both his written statements and his evidence before me; likewise the evidence of Mr Douglas. I have come to the conclusion that it is very difficult to see how the action of his foot slipping would cause it to go into what he described as the foot well. I also have some difficulty in accepting that he came out of the vehicle because of the lack of balance that arose from that. As Mr Axon [counsel for the respondent] said at one stage, his hands were on the steering wheel and his body was planted firmly on the seat. I also bear in mind that when a reconstruction took place it proved impossible to replicate the way in which the accident happened. I regret to say that on a balance of probabilities the Claimant has not satisfied me that I can accept his account of the way in which the accident occurred. In coming to that view I have considered all the evidence I have heard and been directed to."

11. Mr Feeny for the appellant suggested that the judge's reference here to the reconstruction of the accident showed a misunderstanding of the appellant's case, because by the time of the trial the appellant had accepted that his speed in the truck must have been greater than the 3 mph at which the reconstruction had been conducted, following what the appellant had said in his original account of the accident. However, I do not consider that this reference indicates any error on the part of the judge. He was entitled to have regard to the results of the reconstruction in assessing the plausibility of appellant's account at trial based on his assertion that he had been travelling only slightly faster than the 3 mph speed used in the reconstruction. The judge was also entitled to take the reconstruction into account as an important part of the background material which led him to conclude that the appellant was not a credible witness.
12. Although the judge did not make any positive finding as to the mechanism of the accident, there was another real possibility in the frame. The appellant had obtained a medical report for the purposes of his claim, and the reporting doctor had noted in the report: "… it seems that the vehicle spun and tipped, causing [the appellant] to fall from the vehicle. The truck then ran over his right leg." On the face of it, this information derived from the appellant, who was cross-examined about it. He was also cross-examined about an account given by a former employee of the respondent, who was not however called as a witness and whose statement was not adduced as hearsay evidence, and was asked whether he had driven too fast so as to tip the fork lift truck while turning, as the real cause of the accident. A further anonymous "RIDDOR" report compiled after the accident and provided to the appellant in January 2011 also suggested that the appellant had thought the fork lift truck was going to tip over and had therefore jumped from it. The judge did not find the appellant's answers to the questioning on these points satisfactory: [19]-[26]. He also considered that parts of the appellant's evidence about the accident indicated that he had been driving at excessive speed and with a significant turn: [10(b)], [73(g)(iii)] and [78]. On the material before the judge, therefore, there was a real possibility that the true way in which the accident happened was that the appellant had performed a sharp turning manoeuvre at excessive speed, causing the truck to tip so that he fell or jumped from it (as the respondent suggested in its Defence) or perhaps creating sufficient sideways or lateral force on his body so that the impetus propelled him out of the truck (as the neutral expert in the case, Mr Rennie, thought was the probable explanation of the incident).
13. On the appeal, Mr Feeny submitted that whatever else was in issue, it was clear that the appellant had mishandled the truck and lost control of it, thereby causing the accident. He had only received basic training in using a fork lift truck (the first stage of training referred to in guidance issued by the Health & Safety Executive), but not the second and third stages recommended by them (specific job training and familiarisation training). Mishandling and loss of control were the kind of event that could be expected to occur in the absence of proper training. In those circumstances the court could and should infer that the loss of control, and therefore the accident, was due to inadequate training.
14. There was no pleading by the appellant in reply to the Defence or in response to the expert report that because of deficiencies in the training he received he had not known how the pedals of the C5 truck worked or had not appreciated how fast the C5 truck could move or how strongly it might accelerate so that he was taken by surprise by how it performed, and he gave no evidence at trial in support of such a case. On the contrary, although the appellant accepted at trial that he must have been going rather faster than he had said in his first account (see e.g. [12(j)]) and Mr Feeny accepted on behalf of the appellant that he had been going at an excessive speed ([62]), confirming the appellant's acceptance as set out in his supplementary statement that his speed had been excessive in the circumstances ([10(b)]), the appellant's oral evidence at the hearing remained that he had not been driving quickly ([12(h)]), and was only on a slight turn and was slowing down when the accident occurred, travelling only at about 5 to 6 mph ([12(q)]).
15. As Mr Axon emphasised, this is not a case in which the appellant says he has no recollection of the circumstances of the accident. The judge did not believe his account, and the judge's assessment that the appellant's account was untrue was capable of reinforcing the impression that he had been driving considerably faster than he was prepared to admit. As noted above, when this version of events was put to the appellant, the judge found his answers unsatisfactory: [19]-[26].
16. Another possible mechanism for the accident was canvassed with the appellant in evidence, namely that he might have applied the parking brake while executing a right hand turn. That might have suggested a way in which the appellant came to lurch forward to his left. However, the appellant denied this and agreed that if that is what happened it would have been a silly thing to do and not in accord with his training: [[12(p)].
17. On the judge's assessment of the evidence overall, the appellant had failed to prove on the balance of probabilities that the accident occurred as a result of his foot slipping as he claimed it had. The difference between the mechanism of the accident claimed by the appellant and the other alternatives in the frame was important in terms of whether the appellant was going to be able to prove that some defect in his training by the respondent had caused the accident. For example, when tested at the end of his training course he was asked the question "What would be the likely cause of a rollover?" and answered, "excessive steering, excessive speed [etc]": see [41(d)]. Thus if the true cause of the accident was that he had turned the fork lift truck while travelling at excessive speed so that it nearly tipped over, and he had then jumped or fallen, it would have been difficult for him to show that any relevant defect in the training he received had caused that to happen. It might also have been difficult to show that any breach of duty with respect to laxity in enforcing the wearing of seat belts had causative effect if it was the appellant's own voluntary action to jump from the fork lift truck because it was tipping; at all events, the questions arising would then have been materially different.
18. At para. [75] the judge said: "since [the appellant] has not satisfied me that the accident occurred in the way suggested by him it follows that the claim cannot succeed." Mr Feeny submits that in this respect the judge considered the case on too narrow a basis; he should have looked at the matter more widely to see whether, even if not every detail of the appellant's account was correct, the basic picture presented by the evidence overall was sufficient to make out his case on liability.
19. The judge also held that even if he had been persuaded by the appellant's account of the accident the appellant would still have failed in his claim. The appellant had been trained, and although he had not been trained specifically on the C5 truck, even on the appellant's account of the accident it could not be shown to have arisen by reason of any deficiency in the training he had received; the training "was not inadequate" and "the cause of the accident was his foot slipping off the brake pedal when he was travelling at excessive speed" so that he was the author of his own misfortune: [77]-[78].
20. In relation to seatbelts, the judge found that the appellant knew that seatbelts should be worn (and this had been part of his training); there were notices on the fork lift truck and around the respondent's warehouse reinforcing that message; there was a warning buzzer on the fork lift truck to remind him to wear one; and other employees generally wore seatbelts: [79]. However, he also found that the use of seatbelts was not as rigorously enforced as suggested by Mr Ashton, the managing director of the respondent, who had said that disciplinary action had been taken against 2 or 3 people over a 12 month period for failing to use them: [55]-[57] and [80]. However, although he did not accept that particular part of Mr Ashton's evidence, the judge did not regard this as determinative of the case: [57]. The judge also said that had the account put forward by the appellant been accepted, he would have found a degree of contributory negligence, but in the circumstances it was unnecessary to quantify this.
21. Mr Feeny submits that the judge erred in his approach to placing the onus of proof on the appellant. He relies on Holt v Holroyd Meek Ltd [2002] EWCA Civ 1004, where Potter LJ said this at [13]:

"The extent to which a judge can, or should, take the course of finding for a claimant whose story has changed or whose account the judge does not wholly accept is something of an old chestnut in personal injury cases. If a claimant advances a set of circumstances or a mechanism for his accident which the judge is satisfied is false or at any rate totally unreliable, then that is one thing. The judge should not then, because of his view that he does in fact know how the accident occurred which, although differing from the claimant's account, is nonetheless consistent with liability, give judgment on the basis of a finding to that effect. On the other hand, it frequently happens that a judge is satisfied that the circumstances recounted by the claimant are broadly correct and that the accident happened much as he described, albeit the claimant may have embroidered or sought to improve his case, or may be mistaken about some aspect of it. If the judge is satisfied that, stripped of the detail or circumstance which he rejects, the essential facts are nonetheless clear, that they are not at odds with the general thrust of the claimant's case and that they are such that the ingredients of liability are established, then he is at liberty, and indeed is, in my view, obliged, to give judgment accordingly. It is clear to me that this is plainly a case of the latter kind."

22. Mr Feeny contends that the present case falls within the latter type of case identified by Potter LJ, so that although the judge was unpersuaded by details of the appellant's account he should nonetheless have accepted that it was broadly correct and that essential facts as appeared from the evidence were consistent with the general thrust of the appellant's case and were such as to show that the essential ingredients of liability were established, namely that the appellant mishandled the truck and lost control as a consequence of his having had no specific job or familiarisation training as recommended by the Health and Safety Executive.
23. I do not accept this. The judge was entitled on the evidence before him to hold that the appellant had failed to show on the balance of probabilities that the mechanism of the accident was as he claimed it to be, i.e. that his foot had slipped on a brake on a vehicle on which (as he claimed) he had had insufficient training. That left as a real possibility that the mechanism of the accident was that the appellant had fallen or jumped from the fork lift truck because he had tipped it while turning sharply at excessive speed, something which his training had warned him against. Other mechanisms were also possible. The judge was therefore entitled to say that in the circumstances of this case the appellant's claim must fail because he had failed to prove on the balance of probabilities that it was the former mechanism (or something very like it, subject to some variation in immaterial details) which caused the accident, rather than some other mechanism such as the tipping of the truck or excessive impetus created by a tight turning movement at greatly excessive speed. Such another mechanism would have been materially different in terms of causative linkage between training and accident, because it was possible that it had been caused by driver error, unnecessary risk-taking or misjudgement which had nothing to do with the training received.
24. Mr Axon for the respondent sought at one stage to suggest that the judge treated the present case as falling within the first category of case identified by Potter LJ. I do not think that is right either. Potter LJ's statement does not purport to cover exhaustively every kind of case which can arise. The judge did not have to reach any final positive view regarding the mechanism of the accident. It was open to him simply to assess whether the appellant had succeeded in proving on the balance of probabilities that the mechanism which he proposed (or something similar, which stemmed from a relevant defect in the training he had received) was the true mechanism, and to conclude that this had not been proved: compare Rhesa Shipping v Edmunds (The Popi M) [1985] 1 WLR 948, HL, at 951 and 956. On a proper reading of the judgment, this was the approach of the judge and his conclusion was that the appellant had failed to prove his case. In my view the judge was entitled to come to this conclusion on the evidence before him.
25. I also consider that the judge gave proper and sufficient alternative reasons at [77]-[78] why there was no relevant inadequacy in the training provided by the respondent and no good causative link between the training provided and the accident. The substance of the judge's decision at [78] was that, even if the appellant's own account of the accident was accepted as correct (namely that he was travelling at an excessive speed and his foot slipped off the brake pedal), the training had not been inadequate in any respect which was material so far as the operative cause of the accident was concerned. In effect, it was just a very unlucky event. Again, I think that this was a finding which the judge could properly make on the evidence.
26. Mr Feeny also criticises the judgment regarding the issue whether there was a breach of duty in relation to the wearing of seat belts which caused the injury. I think it is fair to say that the judgment could have been expressed more clearly on this point. Mr Feeny says that the judge failed to address this issue, which was an important aspect of the appellant's case. The fact that the judge refers at para. [80] to an aspect of the evidence for the respondent that he did not accept and at para. [81] to the seatbelt issue in the context of contributory negligence, which would only be a relevant issue if there had been a breach of duty, might be taken to suggest that either the judge thought that there had been a breach of duty by the respondent or that he had overlooked that he should make findings in that regard.
27. However, in my view the better reading of the judgment is that the judge fully appreciated that this was part of the appellant's case and was giving reasons why he did not accept that there had been any breach of duty by the respondent. The judge introduces this part of the judgment at [75] by saying that he will give additional reasons why the appellant's case should be rejected; it cannot be inferred that he overlooked this aspect of the appellant's case, since he addresses the seatbelt issue in the context of liability before making observations about contributory negligence; at [79] he gives reasons which in my view explain why there was no breach of duty by the respondent with respect to the requirement for employees to wear seatbelts, since the judge indicates how the respondent took positive steps to reinforce the message that seatbelts should indeed be worn; at [80] he simply recalls an aspect of the evidence of Mr Ashton which he did not accept, regarding disciplinary action against a number of employees, but that does not undermine the reasons he had already given in the previous paragraph why there was no breach of duty (and the judge had described the deficiencies in this part of Mr Ashton's evidence as not determinative of the case: see [57]); and at [81] I read the reference to contributory negligence as simply included for the sake of completeness, as a reminder that this issue would arise if the judgment were overturned on appeal, rather than as implicitly indicating that he accepted that there had been a breach of duty established.
28. Since the judge found as a fact that employees generally did wear seatbelts, I consider that he was entitled to find that the steps set out at [79] to reinforce the message that they should be worn were reasonable in the circumstances and that there was no breach of duty. On the judge's findings, the respondent did not in practice condone the non-use of seatbelts where they were provided, as they were on C5 trucks.
29. On a proper reading of the judgment, therefore, the judge found that there was no breach of duty with respect to the requirement to wear a seat belt. In my view, that is an assessment which the judge was entitled to reach on the material before him.
30. For these reasons, I would dismiss this appeal.

Lady Justice King DBE:

31. I agree.

Lord Justice Moore-Bick

32. I also agree.