2000/113
15 pages
ROYAL COURT
(Samedi Division)
22nd June 2000
Before: M. C. St. J. Birt, Esq., Deputy Bailiff
and Jurats Le Ruez and Le Breton
Between Patrick George McGurk Plaintiff
And J. P. Mauger Limited Defendant
Negligence claim by employee against employer: liability.
Advocate Nuno Santos Costa for the plaintiff
Advocate P. de C. Mourant for the defendant
JUDGMENT
THE DEPUTY BAILIFF:
1. On 27th October, 1995, the plaintiff was struck in the left eye by some tying wire with which he was working. He sustained a serious injury to his eye. The question for this Court is whether that injury occurred as a result of the negligence of J.P.Mauger Limited, ("the defendant").
The evidence
2. The plaintiff was at the material time employed by Dwyer Reinforcements Limited ("Dwyers") as a steel fixer. He had worked for them for some five or six years. Dwyers was engaged as a sub-contractor by the defendant, to provide steel reinforcements for a new extension to the Animals' Shelter, St. Saviour's Road, St. Helier, for which the defendant was the main contractor.
3. In his evidence, the plaintiff said that he was a steel fixer of some fifteen years' experience. Together with a colleague, Ian Arkwright, he had been working on another site on the morning of Friday 27th October. He and Mr. Arkwright were then ordered by Mr. Dwyer, the proprietor of Dwyers, to go to the Animals' Shelter. They arrived there around lunch-time. Their task was to construct steel cages comprising a number of steel rods. These had to be tied together.
4. This is done by using steel tying wire. Tying wire is soft black annealed wire which comes in rolls, like a hose-pipe. It is soft and malleable. When cut, it drops to the ground. The technique is to take a length of tying wire and cut it from the main roll. The length is then used to provide a number of separate ties. This involves tying two rods together by looping tying wire around the joint of the two rods and twisting the tying wire several times. The two ends of the twisted tying wire are then snipped off. With soft annealed wire, these drop to the floor. The cutting is undertaken with cutting pliers known as "nips".
5. It is agreed by all parties that the defendant was to provide the tying wire for this job. On arrival, the plaintiff and Mr. Arkwright did not find a new coil of soft annealed tying wire. According to the plaintiff, they found what appeared to be a partially used roll of tying wire lying by the steel rods. It was rusty and the rust flaked off in their hands. It was all tangled up like a "bird's nest" on top. It looked as if it had been "bashed" on one side. This affected the whole roll on that side.
6. Initially, he thought that they started work after lunch, but in cross examination he accepted that they may have completed one cage before lunch. He and Mr. Arkwright discussed the unsatisfactory nature of the tying wire. At some unspecified stage, Mr. Arkwright described the wire as "shit" to the plaintiff. The plaintiff went off to park his car. On his return, Mr. Arkwright told the plaintiff that he had been to complain about the wire to Mr. Joe Cook, the site foreman employed by the defendant, and to ask for another roll. However, Mr. Cook had apparently told him to get on with it and had refused to replace the wire, despite the fact that it would apparently have taken only some ten minutes to go and buy a replacement roll.
7. The plaintiff then went to see Mr. Cook. He told him about the state of the wire. Mr. Cook was apparently not very pleased at the plaintiff's request, and told him in no uncertain terms to "F... off" and to get on with it. The plaintiff and Mr. Arkwright felt that they had no alternative but to proceed, as they would not have been paid if they had refused to work.
8. By the time of the accident, they had done some two to three cages out of about thirty which had to be done. The plaintiff recalled that the work had to be completed before Monday.
9. The plaintiff's system of working was as follows. He would unroll from the main roll some three coils into his left hand. He would then cut the wire and pass the end still attached to the main roll to Mr. Arkwright for him to take some wire. He would then "trail" the wire in his left hand. This involved dropping all the coils, save the end, which he held as he moved towards the trestle table on which the steel cages were situated. He would then wrap the wire round a joint, twist the wire with the nips and cut off the ends. He would then repeat the exercise with what was left of the wire.
10. With normal soft annealed tying wire, the wire will drop to the floor when it is trailed. Similarly, the ends snipped off after tying will drop to the ground. The plaintiff found the wire on this occasion difficult to use, regardless of whether it came from the "bashed" side of the roll (which covered about one quarter of the roll) or the other side. He and Mr. Arkwright attempted to straighten out some of the bashed wire. He described the wire as being tough and springy, as well as brittle. He had never previously had to use wire that tough or springy. Before the accident, he had cut some six to ten lengths off the main roll. He had not had any particular problem with that exercise, although it was tough and springy, and he had to use a lot of force to cut it. He found that, when he nipped the ends after tying, they were flying some 10 to 15 ft. because of the nature of the wire. Indeed, he found that he could not cut the twisted wire as usual, and was reduced to cutting one end and beating down the other end so that it was flush against the rod. There came a time when, whilst down on his right knee, he cut another length of wire from the roll, having taken three coils in his left hand. He cut the wire with his right hand. The diameter of the coils was some 2 to 3 ft. and he estimated that he had about 10 ft. of wire held in his left hand. He passed the end still attached to the coil to Mr. Arkwright with his right hand. He trailed the wire in his left hand by dropping it, save for the end, as he stood up to move to the cage on the trestle. As he did so, the coils wound round him and sprang up. The end of the wire hit him in the left eye from the left side of his face. He felt excruciating pain and managed to pull it out. He was taken to hospital.
11. It became clear that, when he spoke in evidence of the wire winding round him, the plaintiff did not mean that it passed round and behind him. He showed us what he meant, namely that the wire, which was in front and slightly to the left of him immediately below his left hand, wound and sprang in an anti-clockwise direction and then back towards his eye.
12. The plaintiff was shown a sample of tying wire picked up from the site some five weeks or so after the accident by a Health and Safety Officer. The plaintiff was adamant that that sample was of a completely different nature to the wire which he had to use on the day of the accident. The sample was conventional soft annealed wire.
13. It was put to the plaintiff that his version of events varied from that set out in the Order of Justice and in the Further and Better Particulars. Paragraph 5 of the Order of Justice said:
".....the plaintiff, whilst kneeling, gathered 3 coils of Wire in his left hand and cut the base of the coil with his wire cutters, which were held in his right hand. Immediately on cutting the coil, the plaintiff rose to pass the wire to Mr. Arkwright and as he did so, the cut end of the Wire sprang up and pierced the plaintiff's left eye."
14. The Further and Better Particulars said, at paragraph (c):-
"The plaintiff, whilst kneeling on his right knee as aforesaid, cut three loops of wire from the coil, stood up and passed them to Mr. Arkwright. He then kneeled down again on his right knee, separated three further loops from the coil, cut the wire and stood up, at which point the loose end of the wire curled up round his body and penetrated his eye."
15. As mentioned earlier, the plaintiff asserted that he had been consistent in what he meant by the use of the phrase "around his body". However, he accepted that, particularly in relation to the Further and Better Particulars, his evidence varied in certain respects from what was set out there, but he was emphatic that the accident had happened as he had described in evidence, and that the pleadings were in error insofar as they varied from this.
16. Mr. Ian Arkwright has been a steel fixer for some twelve to thirteen years. He too was employed by Dwyers in 1995. He subsequently left Jersey in 1998 and now works as a steel fixer in England. He confirmed that he and the plaintiff had worked on another site on the morning of 27th October before being told to go to the Animals' Shelter. He believed that they arrived at the Animals' Shelter site at about mid-day, approximately one hour before lunch. They found the roll of old rusty tying wire by the steel rods. They worked for approximately one hour before lunch, making about two cages in that time. On their arrival, the tying wire had a bird's nest on top. It was also bashed on one side; it looked as if someone had run over it. He removed the bird's nest from the top. He found the tying wire hard and brittle. He thought it must have come from another job. When it was snipped, the ends were flying off.
17. After lunch, he went to complain about the wire to Joe Cook, the site foreman. He said that the wire was in a mess. He complained because the wire was knotted, bashed in and rusty. He was concerned about it. Mr. Cook said that they could not have any more wire until they had used it up. Mr. Cook did not come to look at the wire. Following Mr. Cook's refusal, they carried on working, as they would not have been paid if they had stopped work. He confirmed that he had told the plaintiff that he was going to ask for more wire from Mr. Cook. He thought that the plaintiff had also gone to complain to Mr. Cook. He described the wire as unworkable. It was very hard work to use it and it tended to fly off anywhere. He had seen wire like that before, but had always asked for and received a replacement roll on previous occasions.
18. He said that immediately prior to the accident, he saw the plaintiff cut off some wire and hold some coils in his left hand. The plaintiff passed the end of the main roll to Mr. Arkwright. He was a little uncertain as to whether he turned away then or whether he saw the plaintiff begin to drop the coils from the left hand before he turned away. Either way, there was a cry from the plaintiff almost immediately, and Mr. Arkwright turned back to see the plaintiff on his knee with his hands to his eye. He then took the plaintiff to hospital.
19. It was put to Mr. Arkwright in cross examination that his version varied from a statement which he had made on 26th April 1996 which suggested that the incident occurred immediately after the plaintiff cut the wire and that Mr. Arkwright had seen the whole incident, including the striking of the plaintiff's eye by the coil of wire. Mr. Arkwright accepted the inconsistency, but said that he must have allowed to be put in the statement what he assumed had happened, because it was obvious to him that that was what had happened. He maintained his evidence as given in chief before the Court.
20. He confirmed that he had been told to come back to finish the job on the next day, Saturday 28th October. Mr. Dwyer and another employee of Dwyers, Mr. Des Travers, had worked with him. They had used the same tying wire as had been used the previous day. He was not happy about this, but felt that he had no alternative as, despite informing Mr. Dwyer, his boss was willing to use it. He said that the wire was still flying around on that day, but that they were all a bit more careful and alert and it did not cause him any problems.
21. The next witness was Mr. Raymond Middleton, a foreman of Dwyers. He was a steel fixer of some thirty years' experience. He too has left Jersey and now works in England. The Court heard that Mr. Dwyer regarded him as a man of very considerable competence and experience and he was Mr. Dwyer's second in command. He attended on site the previous afternoon, Thursday 26th October. He found the roll of tying wire lying by the steel rods. He noted that the wire was rusty. On feeling it, he ascertained that it was hard and stiff. He thought that the roll was slightly damaged, as if it had been caught in something. However, he did not see a bird's nest on its top. The sample collected subsequently by the Health and Safety Department was shown to him and he was quite clear that the wire which he saw on site that Thursday was not like the sample, which was soft and bendy.
22. Because of the unsatisfactory nature of the wire, he went to complain to Mr. Joe Cook, the site foreman. He could not recall exactly what he said to Mr. Cook, but he thought that he probably said that it was "terrible" wire and that it was not adequate because it was too hard and too rusty. Mr. Cook said that he would get another roll, but that, in the meantime, Mr. Middleton was to carry on. He found that the hardness caused difficulty with the tying. He could not double tie. He could cut the wire in the twist after tying, (unlike the plaintiff), but only with difficulty. He did not find any difficulty in cutting the wire off the roll. He left to go to England that evening, but assumed that a new roll would be provided for his colleagues, as Mr. Cook had agreed.
23. It is quite clear that Mr. Middleton did not complain on the grounds of safety. He said in evidence that it was an 'ease of use' issue. He said that, if he had had reservations on grounds of safety, he would have insisted on a new roll. He also said that, had Dwyers been responsible for the provision of the tying wire, he would not have used it. He would have gone to get a new roll. It could be obtained from a store at Five Oaks, some five minutes away by car, and would have cost only some £15 - £25. However, the provision of the roll on this occasion was the responsibility of the defendant. He had used hard wire like that before. He had known it fly off and hit fingers and eyes. That was why he usually refused to use it, but, as he put it, the job has to be done and there is no pay if you do not do the job. He wanted to progress the work and he was paid on an hourly basis.
24. In view of his experience, both counsel questioned him about the qualities of annealed tying wire which is harder than usual (i.e. wire that has not been properly annealed). He said that hard wire can fly off; it can be dangerous. He had used hard wire on many occasions. Bundles of tying wire varied considerably in their hardness. He had seen injuries from hard wire to noses, eyes, etc. The harder the wire the more likely it was to cause injury. Injuries could be used by pieces flying off, (perhaps up to 6 ft.) and also by springing and coiling or uncoiling. In connection with the latter, he said that hard wire had a mind of its own. It could bounce and turn on itself and could come round and hit one. In his experience, it was quite possible for it to come up above the hand and hit a person in the eye. An experienced steel-fixer would be aware that this might occur. It was put to him by Mr. Mourant that this was only true in respect of hard-drawn wire, but the witness did not accept this and said that it was true of harder types of annealed wire (i.e. wire that had not been properly annealed).
25. The defence began by calling Mr. John D'Abbot-Doyle, the contract manager of the defendant company in 1995, who was now the joint managing director. He was at the site briefly on the day of the accident, but had left by about 12.30 at the latest, in order to go to the airport. He had seen the plaintiff and Mr. Arkwright before he left, working on the steel cages.
26. He identified an order form dated 11th September 1995 whereby the defendant ordered 1 roll of tie wire from Jersey Steel Limited. A roll weighed 25 kilos and contained 1500 metres of wire. On the assumption that 150 millimetres were used per tie, about 10,000 ties could be produced from 1 roll. As well as being used for the steel cages, the tying wire would also have been used for the steelwork required for some 5 to 7 concrete stairs, built on the lower part of the site. This work had been carried out after 11th September, but before the steel cage work in question commenced and would explain why the roll of tying wire did not appear to the witnesses to be new. In Mr. d'Abbot-Doyle's opinion, part of it had been used for the work involved in the concrete stairs. He said that the defendant usually had several contracts going at any one time in respect of different sites. Any surplus material from one site was put into the company's stores and was therefore available for subsequent use at a different site.
27. He said that if a complaint were made by employees about materials, he would expect the site foreman to check on the materials. If the foreman was in any doubt, he had the authority to replace the materials in question. He would not expect a foreman to ignore a complaint and simply tell the employees to get on with it. He was asked about the procedures following an accident. He said that there was no accident report form at the time, although there was now. The foreman was simply expected to make an entry in the site diary. There were no written guidelines as to when to involve the Health and Safety Department. He did not know who had contacted that department on this occasion, or when. He was aware that it was not until some weeks later. He understood that an official from the department attended on site on 30th November and had picked up a piece of tying wire lying on the ground in the general area where the accident had occurred. This was the sample put to witnesses at the hearing. No steps had been taken to preserve the wire actually involved in the accident.
28. The next witness was Mr. Joe Cook, the site foreman employed by the defendant. He said that the roll of tying wire was stored in a shed, not left outside. He believed it to be a new roll. He did not recall that any of it had been used for the concrete steps on the lower part of the site. He could not be certain whether Mr. Middleton had come on site on the Thursday, although he was willing to accept Mr. Middleton's evidence that he had. However, he was adamant that Mr. Middleton had not complained about the tying wire and he, Mr. Cook, had not agreed to replace it. He felt that he would not have forgotten something like that. Similarly, he denied that the plaintiff and Mr. Arkwright had complained about the wire on the following day. He had heard about the accident from Mr. Arkwright, who had said that he was taking the plaintiff to hospital. No one realized at that stage how serious it would turn out to be. It was very important that the steel fixing should be completed on the Friday or Saturday, because concreting had been fixed for Monday, and it would be difficult to cancel it. He telephoned Mr. Dwyer on the Friday afternoon to tell him about the accident, and to arrange for the work to be completed before Monday. He might have attended on site on the Saturday, as he used to do sometimes. He thought he recalled seeing Dwyers finishing off the steel cage work.
29. He did not report the accident to the Health and Safety Department. There was no guidance issued by the defendant on how to deal with an accident, e.g. when to contact Health and Safety, the need to preserve evidence etc. It was left to common sense. He was expected to note any accident in the site diary and this he did the following Monday, by writing "Steel fixer taken to hospital with eye injury. 2.15 - 2.30. Wire went in eye after cutting." It did not occur to him to preserve the piece of wire in question. We have to say that the combined evidence of Mr. d'Abbot Doyle and Mr. Cook suggests that there was, in 1995, a woeful lack of procedural guidance by the defendant to its employees in connection with accidents at work.
30. Some time later, a Health and Safety official had come on to the site. Mr. Cook accepted that this was on 30th November. He took the official to the scene of the accident. The roll of tying wire was not there. The official picked up a small piece of tying wire lying on the ground, but Mr. Cook was not sure whether this was exactly where the trestles had been, although it was certainly nearby. Mr. Cook also confirmed that, after the concreting on the Monday, there was considerable further steel fixing work to be done shortly thereafter. He did not know how much further tying wire would be required for that work.
31. Mr. Dwyer is the proprietor of Dwyers. He has done steelwork for the defendant for many years and continues to do so. He described Mr. Middleton as a steel-fixer of vast experience. He said that the plaintiff was a good and reliable worker and that he had had no cause to complain about his work.
32. He was contacted on the day of the accident. He could not recall whether it was Mr. Cook or Mr. Arkwright who telephoned him. He attended on site. He arranged for the work to be completed on Saturday by Mr. Arkwright, Mr. Des Travers and himself. He knew that there was a pouring of concrete fixed for Monday, so that the steelwork had to be finished by then. So far as he was aware, they used the same tying wire on Saturday as had been used by the plaintiff and Mr. Arkwright on Friday. Although it was rusty, it was quite usable. He did not notice anything about the wire other than the rust and he could proceed with his tying work at normal speed. He did not agree with Mr. Middleton, Mr. Arkwright and the plaintiff that the wire was harder to use than normal. When he did the work on Saturday, he was not aware that any of them had complained about the condition of the wire but he was later informed by Mr. Middleton that he had complained.
33. Mr. Dwyer confirmed that further steel fixing work needed to be done after the concrete pouring on the Monday. There was some uncertainty on Mr. Dwyer's part as to how much tying wire would be required for that additional work. Mr. Dwyer said that, when he left the site on Saturday after completing the preparation of the steel cages, there was about a quarter of the roll of tying wire left. He went on to say that it would require just under half a roll for the further work which still had to be done after the concreting. In cross-examination, he said that what he meant was that half a roll would be required for all the steel fixing work which was needed at the site, i.e. the staircase, the steel caging and the work to be done after the concreting. He found it hard to believe the plaintiff's version of how the accident had happened. In his view, it could only have happened if the wire was caught and the plaintiff pulled at it in order to free it, with the result that it flicked up into his face. He said that he would have taken any complaint by the plaintiff and Mr. Arkwright seriously. He would have gone to inspect the wire about which they had complained and would have replaced it if he had agreed with them.
34. Mr. Stephen Dennis is the commercial director of RFA Limited, Sheffield. RFA is a wholesale supplier of tying wire, amongst other items. Mr. Dennis proved an invoice dated 12th June 1995 showing that RFA had supplied Jersey Steel Limited with 375 kilos of tying wire. Each roll was 25 kilos and contained 1500 metres of wire. The invoice was therefore in respect of 15 rolls of wire. He confirmed that a very small amount of tying wire was rejected and returned because it was too hard. The hardness or softness of tying wire could vary and RFA would invariably replace it if it was too hard.
35. Mr. David Smith is the commercial director of Jersey Steel Limited. Their sole supplier of tying wire was RFA. He confirmed the order from RFA. Jersey Steel ordered in bulk and would re-order once they were down to their last half dozen rolls or so. Although the rolls were not dated, Jersey Steel tried to stack them so that the older rolls would be used before the newer ones. He confirmed receipt of the order for 1 roll from the defendant on 11th September, for use at the Animals' Shelter site. He further produced an invoice dated 12th September in respect of that roll of tying wire. He had checked his records and no other roll of tying wire had been ordered by the defendant for the Animals' Shelter site. However, he had not checked his records in respect of the defendant generally and therefore could not say whether any rolls of tying wire had been delivered to the defendant in respect of other sites during the relevant period. He had not himself known of tying wire being returned by purchasers as being too hard.
Expert evidence
36. Each side called an expert to support its case. The plaintiff's expert was Mr. Glyn Evans, who is a chartered engineer and a member of the Institution of Mechanical Engineers. For 16 years, he worked in industry designing, fabricating and testing plant and equipment. As part of his formal studies, he considered the strengths of materials and was responsible for the stress and design analysis of steel structures. In 1970, he was employed by the Health and Safety Executive as HM Engineering Inspector. In 1975 he became HM Senior Engineering Inspector, dealing with a wide variety of safety matters, including the safety of materials. He was also the Mechanical Engineering Advisor to the UK National Industry Group for work in the construction industry. In 1988, he became HM Principal Engineering Inspector for Wales and the South-West. He was also the UK and HSE Mechanical Engineering Advisor to the UK National Industry Group considering steel (including wire) production and safety. Since 1995, he has carried on his own business as an independent accident investigator and consultant.
37. The defendant called Mr. Derek Bates, a director of DRB Materials Technology Limited. Mr. Bates is a chartered engineer, a member of the Institute of Metallurgists, a member of the Welding Institute, a member of the Institute of Corrosion and Science and a Fellow of the Royal Society of Arts. After spells with a number of companies, including British Oxygen and Esso in a variety of capacities, including as a metallurgist and corrosion engineer and UK Senior Engineer for Esso, he has, since 1979, acted for clients as an expert witness in matters falling within his expertise. He has been widely involved in material selection, failure investigation, corrosion control and many other matters for industries including petrochemical, oil, offshore oil-rigs, marine, electronics, aerospace, automotive and leisure.
38. The experts were agreed about many matters. Rust would have no effect on the softness or hardness of tying wire. Tying wire consisted of annealed wire. Annealed wire was normally soft and malleable, i.e. it had no "life" in it. It was black. It could be easily bent and cut. That is why it was suitable for tying wire. Annealing involves heating the wire in an annealing furnace to a particular temperature for sufficient time and then allowing the wire to cool at the appropriate rate. Mr. Evans accepted that the temperature required was that given by Mr. Bates (675oC), rather than that (350oC) given by Mr. Evans in his report. Both agreed that there is no British or international standard for the softness of tying wire, and that the annealing process can vary in its performance, so that, so-called annealed wire can vary in its softness. As Mr. Bates put it, the process of annealing is not very sophisticated and the wire on the outside can get more heat than the inside. It can happen that there is a variation in the hardness. They both agreed that the harder the wire, the more "springy" or "alive" it was, i.e. when taken out of its natural position it would spring back to that natural position. They both agreed that the accident could not have happened as the plaintiff said if the wire was of the same characteristics as the sample taken from the site by the Health and Safety Officer some five weeks after the accident, which sample was soft and malleable like normal tying wire. Such wire could not spring up or coil as the plaintiff described. Where they were not agreed was as to how the accident could have occurred on the assumption that the wire was much harder than the sample referred to above.
39. Mr. Evans was of the view that more than one 25 kilo roll of tying wire would be required for the stairs, the work on the steel cages and the work which had to be done after concreting. He accepted that he was not a metallurgist but said that he had very considerable practical experience of the behaviour of wire. He said that the problem with hard wire was its springiness. The harder it is, the springier it is. Hard wire will always wish to go back to its natural state. When allowed to, it will spring back to its natural state. So, for example, if the natural state of some hard wire is in coils of a certain size, wire which is put into smaller coils will, when released, spring back to coils of the original size. There is, in addition, the normal "pendulum" effect. In other words, wire taken out of its natural position will, when released, spring back to and beyond its natural position before eventually settling at the natural position. This was why it could reach the face, eye, etc. Without having the wire in question, it was not possible to be sure how the accident had happened, but, given the description of the wire as being "bashed" and "in a bird's nest", its natural state might have been quite irregular. Taking into account the possibility that the plaintiff had coiled the wire out of its natural state, either by reason of the size of the coils or because of the irregular nature of the wire, he felt the plaintiff's evidence to be credible, always assuming the wire to have been hard and springy. By this, he meant that it was possible for the wire to have behaved as the plaintiff described when he dropped the coils and for it to have sprung round and up and struck him in the eye as he alleged.
40. Mr. Bates disagreed. On his understanding of the plaintiff's evidence, the wire could not have behaved as the plaintiff alleged. It was a simple matter of the law of energy. In the absence of the input of additional energy, the wire could not rise up to hit the plaintiff in his eye, which was at a height above that at which it was being held in coils by the plaintiff. He accepted that if the wire were a long way from its natural state -e.g. very tight coils when its natural state was to be in large coils, - this could result in the input of the required energy and cause the wire to "fly". However, he did not understand the plaintiff to be saying that the coils in his left hand were in other than their natural state. Similarly, he thought that there was no evidence of the wire being so misshapen by being "bashed" or "in a bird's nest" that, when coiled in the plaintiff's left hand, it would spring back to its natural state with such energy that it could rise up to strike his eye. Mr. Bates accepted that hard wire could behave in such a manner if taken sufficiently out of its natural state, but said that this would be very abnormal. When pressed to explain how the accident might therefore have happened, he said that the most likely explanation was "tomfoolery" (i.e. the plaintiff fooling around or playing with the wire in such a way as to cause the injury), by the wire becoming caught and then suddenly coming free when taut and under tension as a result of being pulled by the plaintiff in order to free it, or by the wire being cut when under tension. He accepted that there was no evidence to support any of these theories and that an experienced steel fixer would be unlikely to cut wire under tension, as he would know the likely consequences.
41. Following the evidence of Mr. Bates to the effect that the accident could not scientifically have happened as the plaintiff alleged (which had not been put to the plaintiff when giving evidence) the plaintiff was recalled at the Court's insistence so that Mr. Mourant could put these points to him. The plaintiff remained adamant that the accident had happened as he had said and that he was not fooling around; the wire did not get caught, causing him to try and pull it free; and he did not cut it when it was under tension.
Findings of Fact
42. The first issue is as to the nature of the wire. Was it hard and springy, as the plaintiff alleges, or was it normal annealed tying wire like the sample? The defendant relied upon the evidence of Mr. Dwyer as to the nature of the wire which he used on the Saturday and the fact that Mr. Arkwright, as well as Mr. Dwyer, used the wire without problem on the Saturday. Mr. Mourant also relied upon the fact that only one roll of tying wire had been supplied by Jersey Steel Limited to the site. He therefore sought to draw the inference that the sample found on 30th November must have been from the same roll as was being used on 27th October.
43. The Court has no hesitation in accepting the evidence of the plaintiff, Mr. Arkwright and Mr. Middleton that the wire provided by the defendant on 27th October was hard and springy and was not soft and malleable like the sample produced to the Court. The evidence of the three witnesses was consistent on this. Although they worked together in 1995, they have all gone their separate ways since then and there is no reason to disbelieve them. On the contrary, having seen and heard them give evidence, the Court has no hesitation in accepting their evidence in preference to that of Mr. Dwyer concerning the hardness of the wire. We place no weight on the sample found on 30th November. There was a dispute between the witnesses as to whether more than one roll of tying wire would be required to carry out all the steelwork at the site. However, it is clear that the defendant might well have had tying wire in store from other sites. There is no way of being sure, but it is perfectly possible that tying wire from the stores was used to complete the job and that the sample picked up on 30th November came from some other roll. In any event, the position is far too uncertain to be able to say that, on balance, the sample came from the same roll as was used on 27th October. On the contrary, the probabilities lie the other way. The Court finds that the tying wire being used on 27th October was hard and springy as described by the plaintiff and his witnesses. It was difficult to use and was flying around when snipped after tying. The Court is satisfied that the quality of tying wire can vary for the reasons given in evidence and this was one of those batches which was hard and springy as opposed to being soft and malleable.
44. The Court also accepts the evidence of the plaintiff, Mr. Arkwright and Mr. Middleton that each of them complained to Mr. Joe Cook about the wire and asked for it to be replaced. We accept that Mr. Cook informed Mr. Middleton that he would replace it, but that Mr. Middleton was to press on in the meantime; and that Mr. Cook refused to replace it for Mr. Arkwright and the plaintiff. We see no inconsistency in this. All concerned knew that the task had to be completed before Monday, because of the concreting, and we have no doubt that, by Friday afternoon, Mr. Cook was of the view that there was no time to be lost. We find that he had simply forgotten to replace the roll following his conversation with Mr. Middleton. Mr. Cook denied that any of the three witnesses had complained, but the Court does not accept his evidence on this point. He was uncertain as to whether Mr. Middleton had even been on site on Thursday and he was not sure whether he (Mr. Cook) had visited the site on the Saturday. In the light of those uncertainties, we find it hard to accept that he could be so certain that no complaint had been made by any of the three steel fixers. Having seen and heard the witnesses, we have no hesitation in accepting the evidence of the plaintiff and his two witnesses on this aspect.
45. As to how the accident happened, the defendant relies upon the evidence of Mr. Bates to the effect that it could not have happened as the plaintiff suggests. The defendant also relies upon variations between what the plaintiff and Mr. Arkwright said in evidence and what was said in the pleadings and in the witness statement of Mr. Arkwright.
46. We have carefully considered these arguments and the other points made by Mr. Mourant in connection with the evidence. But we are satisfied that we should accept the plaintiff's evidence as to how the accident occurred. His version is supported, as far as it goes, by Mr. Arkwright. It is true that Mr. Arkwright did not see the causing of the injury itself, but he saw all that happened up to a few moments before the accident, (namely, when the plaintiff handed over the end of the roll to Mr. Arkwright while holding three coils in his left hand). We have the opinion of Mr. Evans that the plaintiff's evidence is credible in the sense that the wire could have behaved as the plaintiff states. We appreciate that Mr. Bates did not agree, but his opinion turned very much on his interpretation of the plaintiff's evidence. He accepted that, in certain circumstances, the wire could behave as is alleged. He just did not accept that those circumstances were present on this occasion. However, it is clear that, for some reason, the wire did go into the plaintiff's eye. The only explanation which Mr. Bates can offer is that there must have been tomfoolery, or the plaintiff must have tried to pull the wire free when it was caught, or must have cut it under tension. There is no evidence to support any of these possibilities. On the contrary, it is inconsistent not only with the evidence of the plaintiff, but also with the evidence of Mr. Arkwright. On the basis of the evidence given to us, we are satisfied that the accident happened as the plaintiff says it did.
47. However, as Mr. Mourant said, that does not get the plaintiff very far. Accidents happen. The defendant will only be liable if the incident happened because of a breach by the defendant of a duty of care which it owed to the plaintiff. It is to those issues that we now turn.
The law
48. Mr. Costa, on behalf of the plaintiff, sought to put his case in two ways. First, he relied upon a general duty of care on the part of the defendant to take reasonable care in the provision of materials (in this case, tying wire) for use by persons on the site where the defendant was the main contractor. Secondly, he argued that, although the plaintiff was an employee of Dwyers, he could be regarded, for the purposes of this case, as having been transferred temporarily to the employment of the defendant because the defendant was in charge of the site and had control over the plaintiff and other employees of Dwyers whilst on site.
49. Mr. Costa referred the Court to paragraph 10-88 of Charlesworth & Percy on negligence (9th edition), to Garrard v. Southey (1952) 1 All ER 597 and to Denham v. Midland Employers Mutual Assurance Limited (1955) 2 QB 437. Paragraph 10-88 of Charlesworth says this:-
"There needs to be drawn a distinction between the loan of a workman, that transfers the right of control to the temporary employer, and the making available of the benefit of his services alone, whereby the essential control is retained by the permanent employer. Hence, since the burden of proof of transfer is a heavy one to discharge, it can only be in the exceptional case that the right of control over a workman is effectively transferred away from the general to the temporary employer. Particularly will this be so where the employee has been lent together with some valuable equipment or piece of machinery to be operated by him. But the inference that control has been transferred may be more readily drawn where only the labour of an unskilled workman has been lent."
50. The Court heard no evidence to suggest that this burden has been met. Almost no questions were asked in order to show that the right of control over the plaintiff rested with the defendant or its staff. In the circumstances, the Court holds that there has been no transfer of employment of the plaintiff from Dwyers to the defendant and the case must therefore be considered on the basis of the general duty of care, rather than on the basis of an employer's duty of care to his employee.
51. Mr. Costa also sought to rely on the maxim res ipsa loquitur. He did this in unusual circumstances. He says that the Court should first consider the evidence of the plaintiff. If it accepts the evidence of the plaintiff, the maxim does not apply, because the Court will have ascertained how the accident occurred. He goes on to say that, if the Court accepts Mr. Bates' evidence to the effect that the plaintiff's version of events is impossible, the Court will then be left with no evidence as to how the accident occurred. In those circumstances, says Mr. Costa, the Court should apply the maxim on the basis that the accident could only have happened because of negligence on the part of the defendant.
52. In view of the Court's acceptance of the plaintiff's evidence, this point does not arise. But the Court is of the view that, if it had not accepted the evidence of the plaintiff, the maxim would not have been applicable in this case. As Mr. Bates pointed out, the accident could have happened because of tomfoolery, pulling the wire free when it was caught or cutting the wire under tension. These are examples of negligence on the part of the plaintiff. It cannot therefore be said that, in the absence of evidence, this accident could only have happened through the negligence of the defendant.
53. The defendant accepts that it owed the plaintiff a duty of care, in this case, a duty to exercise reasonable care in the provision of materials for use by the plaintiff. The questions for the Court are therefore:-
(i) was the defendant in breach of the duty by failing to exercise reasonable care;
(ii) is there a causal connection between the defendant's conduct and the damage; and
(iii) was it reasonable foreseeable that such conduct would have inflicted on the plaintiff the kind of damage of which he complains?
Application to the facts
54. It is convenient to address questions 1 and 2 together. The Court finds that the defendant failed to exercise reasonable care in the provision of the tying wire and that there was a causal connection between that breach of duty on the part of the defendant and the injury suffered by the plaintiff.
55. On three separate occasions, complaint was made by employees of Dwyers concerning the tying wire provided by the defendant. Following the complaint of Mr. Middleton, the defendant, through its site foreman, Mr. Cook, agreed to replace the wire. Yet the defendant failed to follow that through and no replacement wire was in fact provided. The complaints of the plaintiff and Mr. Arkwright were simply ignored. Mr. Cook did not even go to inspect the wire of which complaint was made. Even Mr. D'Abbot-Doyle, now the joint managing director of the defendant, accepted that, upon such a complaint being made, a foreman should go and look at the materials which are the subject of complaint, in order to see if the complaint is justified. The defendant failed to take these elementary steps, despite being alerted to the fact that there was a problem with the wire.
56. Mr. Mourant relied strongly on the fact that the complaints by the employees of Dwyers were not made on grounds of safety, but were in respect of the ease of use of the wire. He referred particularly to the evidence of Mr. Middleton, to the effect that, so far as he was concerned, it was not a safety issue. Mr. Mourant therefore argued that there was no breach or, alternatively, that there was no connection between the breach and the damage, because this was not the provision of unsafe material, but was simply the provision of material which was rather difficult to use.
57. The Court finds that the wire provided was potentially dangerous. We accept the evidence of Mr. Middleton that hard wire can be dangerous because of flying ends when cut, or because of its tendency to spring and coil. We remind ourselves of his comment that such wire has a mind of its own, and can come round and hit you anywhere. He was familiar with injuries caused by such wire to the nose and to the eye. This tendency is supported by the experts, who both agreed that the harder the wire, the springier it was and the springier it was, the more dangerous it was.
58. We accept that Mr. Middleton said that it was not a safety issue, and that if he had had reservations on the grounds of safety, he would have insisted on new wire. But employees will often take a very pragmatic approach to safety. They will not always appreciate a safety issue. Even if they do, there is often pressure to get on with the job and not make a fuss. Indeed, some employees take pride in so doing.
59. The test is not whether Mr. Middleton, as an employee of Dwyers, thought that the wire was safe. The test is whether a reasonable and prudent main contractor, having been alerted by complaint by three individuals about the nature of the wire it was providing, would have inspected and replaced the wire on the basis that, if the wire was hard, it was potentially dangerous. We have no doubt that a reasonable and prudent contractor would have so behaved. We also conclude that the failure to replace the wire caused the accident because it was the springy nature, combined perhaps with the damaged condition of the wire, which caused it to spring and coil as it did.
60. The final question is whether it was reasonably foreseeable that such negligent conduct of the defendant would lead to the kind of damage suffered on this occasion. In this respect, the Court was referred to Hughes v. Lord Advocate (1963) 1 All ER 705. In that case the House of Lords held that the fact that the danger actually materializing was not identical with the danger reasonably foreseeable did not necessarily result in liability not arising; the defendant could only escape liability if the damage could be regarded as differing in kind from what was foreseeable.
61. Having regard to the evidence referred to above of Mr. Middleton and of the respective experts called by the plaintiff and the defendant, we are satisfied that it was reasonably foreseeable that injury to any part of the body of a steel fixer which was struck by the wire could be caused by the springing and coiling of hard and springy tying wire.
62. Accordingly, we find for the plaintiff on the question of liability.
Authorities.
Charlesworth & Percy on negligence (9th Ed'n): paragraph 10-88 of
Garrard-v-Southey (1952) 1 All ER 597.
Denham-v-Midland Employers Mutual Assurance Limited (1955) 2 QB 437.
Hughes-v-Lord Advocate (1963) 1 All ER 705.
Ratcliffe-v-Plymouth & Torbay Health Authority & Anor (11th February, 1998) Butterworths Medico Legal Reports 42.
Widdowson-v-Newgate Meat Corporation & Ors (4th December, 1997) TLR.