Jersey Unreported Judgments

[2006]JRC082A

royal court

(Samedi Division)

8^th June 2006

 

Claim by the Plaintiff for negligence and/or breach of duty of the First Defendant.

Advocate O. A. Blakeley for the Plaintiff.

Advocates D. J. Benest and L. K. A. Richardson for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

judgment

Commissioner:

1.        The plaintiff ("Mr Chartier") in this action was at the material times a postman in the employ of the first defendant ("Jersey Post")   He commenced his duties on 1^st November 1999 and he alleges in his Order of Justice that he suffered from two accidents - one on 6^th March 2001 and another (the more serious of the two) on 10^th May 2001.  On both of these occasions he suffered injury and alleges negligence and/or breach of duty by his employer in both accidents and negligence and/or breach of duty by the second defendant - HSBC International Limited ("HSBC") who are involved only in the second accident.  His back problem was, according to the Order of Justice, exacerbated by an incident in September 2000 when he injured his back lifting a bag which was heavier than it appeared and which he collected as a postman from Invesco Limited in Britannia Place.  He pleads that he continued after that to suffer pain in his lower back until he came to collect a loaded trunk at HSBC on 10^th May 2001.

2.        The accident on 6^th March 2001 can be dealt with first and it is not necessary, in our view, to detail the background that is essentially necessary in dealing with the accident on 10^th May 2001.  The pleadings set out quite clearly the sequence of events for only Mr Chartier was there when the accident took place.  What the Order of Justice says is this - (we should perhaps point out that the incident may have occurred on 7^th or 8^th March but this does not affect our conclusions as it undeniably happened).

"On 6 March 2001 the Plaintiff was instructed by the First Defendant to carry out duties as a postal worker on a collection round at St Ouens using van number 88.  In the course of the round, and whilst exercising all due care for his safety, a gust of wind caught the rear door of the van and blew it shut onto the Plaintiff striking him in the middle of his back at about rib height on his left hand side.  The inside door handle of the door had been missing for some time, leaving the handle ratchet exposed.  The exposed part of the ratchet was approximately one inch long.  The exposed ratchet struck the Plaintiff as aforesaid so hard that the mechanism broke.  The matter was reported to management and an accident report submitted."

3.        We have to ask ourselves whether, on the balance of probabilities, the inside door handle had broken, leaving an exposed ratchet approximately one inch long and whether the injury to Mr Chartier was partly caused by the allegedly exposed ratchet.

4.        Each of the parties employed an expert on health and safety and risk management.  They met in Surrey on 18^th February 2005.

5.        The first three questions and their answers did not concern Mr Mark Foley, the expert retained by HSBC and, of course, he did not contribute to that part of the discussion.  It is useful to set out the three questions and the answers to them -

"The Van Door incident of March 2001

Q1:     Assuming, for the purposes of this question only, that the Plaintiff's case as to the state of the handle is correct, can you agree whether such would fail to meet best practice and hence place Jersey Post in breach of its duty of care?

A1:      Both experts agree that it could constitute a failure to meet best practice;  they do not feel qualified to say whether that constitutes a breach of the legal duties.

Q2:     Are there any factors which would militate against such a conclusion, such as the length of time for which the handle had been in such a state;  any system of inspection and maintenance?

A2:      Regarding the time for which the handle may have been missing: we would expect a prudent operator to (a) identify the defect during a routine inspection such as should be carried out by each new driver taking over the vehicle, or at the start of the day, and (b) should initiate action to replace the missing part (which might take some time, dependent on the supply position) and meanwhile cover the projection with some form of padding.  So long as there was no impairment of the closure function of the door, there would then be no need to take the van out of service.

Regarding the system of inspection and maintenance: formal mechanical and electrical inspections at long mileage intervals (e.g. 6000 miles) would not have addressed this issue.  The daily checks by drivers would be the only form of inspection that would be capable of picking up this type of fault (similar, for example, to the occurrence of failed bulbs and soft tyres).

The experts did not identify any other factors militating against their conclusion in A1.

Q3.     Assuming again, for the purposes of this question, that the Plaintiff's case as to the state of the handle is correct, please discuss whether the condition of the door handle would have made any difference to the outcome.

A3.      The two experts agreed the opinion expressed at 6.8 and 6.10 in the Report of Dr Cox, which state:

"6.8     The original cause of the impact of the door upon Mr Chartier was the sudden gust of wind swinging the door.  The force of wind on a large area such as a van door can be considerable and it is entirely credible that the door could have the hurt the Plaintiff when it hit him.  The extent of injury to him would have depended on the shape of the part that first made contact and the location of the impact on his body.  If the door had been in perfect condition, this impact might have been spread over a slightly larger area, because the handle would most likely have been flatter and less protrusive than the ratchet.  However, the total 'impulse' (a mechanical engineering term descriptive of the magnitude of a momentary push or 'shove' imparted) would have been exactly the same, albeit spread over a larger area."

"6.10   I have therefore concluded that the alleged failure to deal with the defective handle could have worsened the effects of the impact, based on the evidence available to me, but would not have prevented its occurrence and, if medical evidence suggests that the fracture was not at the point of contact, may not have had any significant effect on the injury at all".

6.        From the evidence that we heard, it does not appear that there is any method of securing the door once it has been opened.  We have no idea why at St Ouen in a strong wind it was necessary to open the door fully and to leave it open.  Mr Chartier pleads in his Order of Justice that the "inside door handle had been missing for some time leaving the handle ratchet exposed". In his affidavit, Mr Chartier says several things -

"The door hit me so hard that the mechanism broke".

He also said inter alia -

"I should make it clear that it was only after my accident that I became aware that the van was defective".

7.        Mr Andrew Jehan is the senior operations manager of Jersey Post and has worked at Jersey Post for 23½ years.  If, as he said, a log book is provided which records every trip made in each vehicle, no postman noted the defect which apparently had been there "for some time". The accident report (which is dated 7^th March 2001) shows that the accident occurred at 13.10 hrs at the car park at St Ouen Sub Post Office.  All that Mr Chartier reported in his accident report was this -

"As I was placing mail bags into my OMV the wind caught the door which in turn hit my back".

In his report Mr Jehan clearly notes that he has "had van checked to ensure door is in good working order" and where there is a "Yes" and "No" box in answer to the question "Was any equipment and/or vehicle alleged to be faulty", Mr Jehan has ticked the "No" box.  In his affidavit, Mr Jehan says this -

"I confirm that if any works had been required to the vehicle, specifically replacement of a handle, the maintenance team would have raised a works order and the details of the work would be recorded on vehicle's log".

8.        Jersey Post could not discover that any work had been carried out on the handle after the accident occurred.  When asked if the accident report were accurate, Mr Chartier said, somewhat disarmingly, that it "might be". Mr Chartier, from his evidence in Court, appears to be saying that his opinion that "the whole mechanism" of the door had to be changed (a factor which is emphatically denied by Mr Jehan) was based on what was related to him by a mechanic who has now retired. We did not, of course, hear from that retired mechanic and we have to weigh Mr Chartier's evidence against the documentary evidence and the evidence of Mr Jehan with, of course, the agreed opinion of two medical experts.  The matter is not without difficulty but, on the balance of probabilities, Mr Chartier has failed to satisfy us that the accident at St Ouen was anything other than an Act of God and we cannot find that the door was damaged prior to the accident as is suggested in the Order of Justice.  As Mr Chartier said in evidence -

"I didn't know at the time the mechanism had gone.  I was told later on the mechanism had gone".

9.        We now move to a far more troublesome and complex point - the accident of 10^th May 2001.  This will require us to examine in far more detail the background and the numerous reports that we have considered.

The facts

10.      Mr Chartier had been working as a postman for eighteen months and he started work on10th May 2001 at about 6.0 a.m. At 9.20 a.m. he was asked by his collection manager, Mr Christopher Benest (one of two - the other was Mr Christopher Fox) to carry out a collection duty which he had not done before.  There were, apparently, staff shortages on the day in question. Because Mr Chartier had not carried out this collection before, he had to speak to another postman who explained the round to him and he took notes.  He was anxious (not having performed this duty before) and he felt "pressurised" because of the time restraints.  He was, according to the service agreement entered into between HSBC and Pro-Mail (a division of Jersey Post), half an hour late when he arrived at the bank at Snow Hill.  He says that this was his last collection of the round.  He walked to the reception area and he says that he rang a bell but no one responded.  He noted that there was a cardboard box with mail for collection on top of a metal trunk. He checked that the cardboard box was for collection, noted that it was and took to the van.  He then returned for the metal box.  He said that he did not test the weight of the box but he did what perhaps any inexperienced person might do, he bent over, took the handle at each end of the box, and attempted to lift it.  He did not squat down completely.  He felt a pain in his lower back so he dropped the box and stood up.  He did not try to obtain any assistance either by ringing the bell again or by using his mobile phone,  but he squatted down, (in the correct position), picked up the box, carried it to his van down a flight of steps and put it in the van.  He was in "severe pain" when he dropped the box and in "extreme pain" when he got it into the van.  Sadly, HSBC were only informed that the accident had occurred on 17^th October 2002 (some seventeen months later) by which time all the relevant CCTV records had been destroyed.  Mr Chartier drove the trunk in his van to the Pro-Mail offices at Beaumont and reported the incident to a Mr Hugh Le Boutillier (who was not called).  It is stated that the box was weighed at that time.  It was weighed, according to Mr Chartier, at 34 kilograms or 75 pounds.

11.      Let us for a moment consider the duties that lay - if they lay at all - on each of Jersey Post and HSBC. 

12.      We heard from Mr Anthony Burke, who joined Jersey Post at the same time as Mr Chartier (on 1^st November 1999).  He attended, as Mr Chartier attended, the induction training given by Mr Brian Turner.  Mr Burke is still employed by Jersey Post.  Mr Burke swore his affidavit on 6^th April 2006 and, as he very frankly stated, his memory was somewhat vague as he tried to recall events that happened some 6½ years ago.  He was shown a print-out which apparently shows the "delegates" for the manual handling course.  There are seven.  One of them is Mr Chartier.  None of the other five were called (they may not have been identifiable) but Mr Burke's name is also on the list.  Mr Burke said this in his affidavit (which, like all the affidavits, was tendered as his evidence-in-chief).

"From what I recall, the induction process consisted of:

(i)        A short talk and demonstration from a Customs Officer which covered areas such as being aware of illegal substances being sent through the post and some of the steps taken by the Customs to detect such substance;

(ii)       Various items of training concerning the various services offered by Jersey Post to its customers.  This included items such as registered and recorded deliveries, parcel deliveries and the like;

(iii)      There were a number of short films which we watched and this included aspects of health and safety, dangers in the work place, postal deliveries and the various machines used by the postal service and how Jersey Post used different transportation for post;

(iv)      There were also a number of tours around postal headquarters including tours of the shop floor and a brief introduction to some of the machinery used at Jersey Post.

Specific Training

I remember undergoing some training given by Brian Turner.  From my recollection this training was very short indeed.  In fact, the only thing that I can remember was Brian Turner demonstrating lifting techniques and the importance of bending the knees when lifting items.  I should emphasize that this only constituted a very small part of the training with Brian Turner. The other training included items such as filling in accident report forms other forms used in Jersey Post and general procedures for employee administration such as applying for holidays, how the pension system worked, security at the Post Office, overtime policies and procedures, compulsory overtime, the use of uniform and rules regarding the same, the problems encountered by postal workers on deliveries such as encountering dogs, use of transport provided by Jersey Post such as cycles and motorised vehicles.  I would describe the training as being a very broad introduction to most aspects that a new employee would need to know.  As far as I recall the training was very limited indeed; I can hardly recall its content.

During the training with Brian Turner I remember hand-outs being given during the training, but I cannot recall the content of those documents.  I do not believe that I still have those documents.

I also remember Brian Turner covering certain areas regarding permissible weights for postmen to carry.  As far as I remember, this was limited to postmen's pouches and I do not recall any limits being referred to regarding parcels.  I should also point out that the training given concerned only deliveries and not collections.  The only real practicable training that I had to take part in was the filling-in of a "dummy" accident report form.  If I recall it correctly, it involved a simulated incident of a postman falling off a bicycle.

I thought that the training given was quite good but, having said that, I only remember it vaguely which calls into question how effective it was.  I can also confirm that since commencing my employment with Jersey Post I have received no further training or refresher courses."

13.      Mr Burke was shown the print-out of the "delegates" for the manual handling course.  Of course Mr Burke, with the print-out of 14^th February 2000 before him, was asked emphatically if he now remembered attending the course.  What he said was "I don't (remember).  I honestly don't.  I mean I know the names on the list.  I do know the names because some of them were starters .... The guys I started with".  His affidavit says much the same thing.

"I do not remember receiving any manual handling training from David Grimes throughout the whole of my employment with Jersey Post.  If I am wrong and he did give such training, then it certainly didn't register with me".

14.      Mr Burke did, however, recall the induction process and one of the things (he says the "only" thing) that he remembers is Mr Turner demonstrating lifting techniques and the importance of bending the knees when lifting items.  He recalled "hand-outs" being given to him.  Mr Burke recalled his early days as a collector when he used to collect what he described as "always excessively heavy" bags from a firm in Britannia Place, Bath Street.  There would be three or four mail bags and he would drag them across the floor, down a flight of 10 or 12 stairs and sometimes along the length of Britannia Place to the van, where he had to lift the bag into the vehicle, which was done with some difficulty.  Strangely, he did not complain and, fortunately, he did not injure his back.  He did not use a Post Office trolley bag which Mr Turner said was in many vans, but not the smaller ones.  There is no doubt that both Mr Burke and Mr Chartier attended the induction course run by Mr Turner.  It was this course, certainly, that was attended by Mr Chartier.  Mr Turner gave delivery training to Mr Chartier and then what was called "delivery officer training" with him from 0900 to 1600 from Tuesday 2^nd to Friday 5^th November, 1999.  He also received training on 1^st November.  What did that induction training entail?  Mr Turner told us that the training included a welcome talk and an introductory session where the members of the group spoke a little about themselves.  There were visits to various departments and what Mr Turner called "hands on participation". An example of that would be recruits going to the airport and unloading mail bags under supervision.  Mr Turner would ask recruits to show him any mailbag which was considered to be too heavy and this would be checked on the scale.  A pack of documents was given to each trainee and there was a discussion.  There is a section on accident reports (which Mr Turner properly regarded as very important).  It includes these words -

"......a pulled back may give you trouble some time later in life".

There is information about lifting bags of mail.  There is a passage which reads -

"Test the weight of each bag before attempting to move it".

The attendees were shown a video prepared by Royal Mail and called "Why risk it".  The video covers a mass of information but there are some very graphic examples of correct (and incorrect) lifting techniques.  Mr Chartier has completed a "student questionnaire" on the operation training evaluation.  He says that he liked "all training", that the hand-outs were "about right" and that he thought the practical exercises were "very good".  His overall assessment of the training was "excellent".  It may be that all that information for new recruits was somewhat overwhelming.  It may be for that reason that a separate course on manual handling was given by Mr Grimes.  It is at this point that the Jurats have had to resolve a complete conflict of evidence.  The question that the Court has to resolve is this - Did Mr Chartier attend the manual handling course training given by Mr David Grimes during the week long induction course?

15.      Mr Grimes is currently the Health and Safety Property Manager of Jersey Post and in 1999 he was the Facilities Co-ordinator.  He has worked for the States of Jersey Police as a purchasing and supplies officer and was for a time in the British Army, rising to the rank of sergeant and gave weapon training.  He was, for a year, part of the Northern Ireland Training Advisories.  He was shown the reconstituted print-out.  The print-out is dated 14^th February 2000 and, of course, the induction course was some three months earlier.  Whatever is made of that, Mr Grimes said in his witness statement made on 7^th September 2005 that he recalled "that Jacques Chartier was on one of my courses with four others".  He qualified this by saying that, on reflection, he might have four recruits in the morning and five in the afternoon.  Mr Grimes accepted that it was he who took the identity photographs of the new employees (Mr Burke remembers having his photograph taken by Mr Grimes - he can even recall exactly the spot where it was taken).  He also accepted that he must have met the new employees (including Mr Chartier) in order to take their photographs which were, of course, essential for their employment.  Is Mr Grimes (who we have no doubt is an honest witness) mistaken in what he has recalled?

16.      We remain concerned.  On 31^st January 2001, there is a confidential "counselling record".  Mr Chartier had completed his probationary period successfully and was confirmed as a postal worker.  The record is signed by Mr Andy Jehan and amongst other things, it says "It was identified that Jacques has still to attend a manual handling session and have "formal" collection training".

17.      Mr Brian Turner, the training manager of Jersey Post, had worked for the company for 30 years when he retired in 2003.  He was shown several messages sent from the Communication Workers Union about the maximum weights of mail sacks.  By example, there was an internal e-mail which reads -

"I've just spoken to Owen from Mourant, du Feu & Jeune who has complained that the bags delivered to them in the morning are too full.

He says that this morning it took two people to lift each one!

Surely if JP customers are not supposed to load bags over 10 kgs in weight for each collection they can expect the same in return on delivery".

18.      While Mr Turner was adamant that there was a weight restriction operating in the postal service for bags and pouches he was not prepared to say the same for trunks.  Mr Turner had never seen an "occupational accident/incident report form" which had been prepared by Robert Gordon Risk Management Services, who are clearly employed by the States to investigate accidents.

19.      There is one matter that may be of some importance.  Mr Turner told us that he recalled, in the induction week, "Mr Chartier mentioning that the lifting issues were important. He had had an accident with a previous employer in which he had hurt his back.  I recall this because he told the group he was suing that employer over the incident".  That is a clear recollection and we shall, of course, deal with it later.

20.      There are some other factors that have helped the learned Jurats to come to their conclusion.

21.      On 17^th April 2002, there was a meeting between Mr Chartier, Mr Mick Hamon (who was accompanying Mr Chartier as his Union representative), Mr Ian Perrier and Miss Sandra Hayes.  Miss Hayes is the human resources manager, a position she has held since 4^th March 2002.  Miss Hayes (who had only been in the post for just over one month) said that she had seen the forms signed by Mr Chartier concerning the week long induction course and it was her understanding that that training was undertaken by Brian Turner and David Grimes at the time that Mr Chartier undertook his training.  She wrote to Mr Chartier on 29^th May 2002 and, amongst other things, said -

"With regard to Manual Handling Training, our records show that you attended Postal Worker Training between 1-5th November 1999 which included a five hour Health and Safety module".

Mr Chartier replied to this point on 20^th June 2001 -

"As I mentioned at the meeting on 17^th April, I was told by management (in September 2000) that I would be attending a manual handling course held by David Grimes.  During a meeting with Andy Jehan and Chris Benest during the first week of January 2001, Andy Jehan noted that I still had not receiving my training and asked Chris Benest to arrange training.  I still had not received this training when I had my accident (10 May 2001)".

22.      Mr Chartier explained in his evidence under cross-examination by Advocate Benest that he had not done this round before.  When he took trunks (as he done) from Pro-Mail at Beaumont to the Rue des Prés Trading Estate, they were invariably empty.  He said this (and we know that he was under pressure to complete the collections) -

"The trunk was locked, Sir, it didn't have any sign on it saying it was heavy Sir, so I attempted to lift it.  I have never had the manual handling training, Sir, so I did as, what I thought was the best thing to do at the time".

23.      There were times when Mr Chartier became somewhat disingenuous in his answers -

Question:  "You know as a general proposition that objects might be heavier than they appear?"

Answer: "I don't know that, Sir, I've never been trained".

Mr Chartier told the Court that he bent over, grabbed it by the handles and lifted it up.  If Mr Chartier did receive training from Mr Grimes it seems reasonably clear to us that this was not during the induction course but it was on 14^th February 2000.

24.      Mr Chartier was adamant that he had not been shown (perhaps "instructed" is a better word) how to test the weight of a mail box. 

25.      The Order of Justice states -

"The Plaintiff tested the box, but it was locked". 

It goes on to say -

"The Plaintiff was under pressure to complete his duty and not expecting the trunk to be overweight bent over to pick up the trunk".

He said again that he was not trained in manual handling, by which he means that he was not so trained by Mr Grimes.  What Mr Grimes said in his affidavit was this -

"I confirm that I provide training to new recruits on manual handling during the week-long induction course". 

Mr Grimes later added these words (having received and noted the print-out with the seven names on it) -

"At the material time, however, my element of such training was given at a different time.  Now produced to me and marked "Exhibit DGO" are documents showing that Mr Chartier attended the Manual Handling Course which I ran on 14^th February 2000.  These documents come from an old Jersey Post Human Resources data base and have been provided to me by Sandra Hayes, the Human Resources Manager.  They confirm my recollection of Jacques' attendance on the course as recounted by me in the original witness statement which forms the basis of this affidavit.  This course took the form of a one hour training session held in the parcels department of Jersey Post at the Rue des Prés Headquarters".

26.      When the question was put to him by Advocate Blakeley that his recollection was really based on the computer print-out, Mr Grimes said this -

"No, in my mind the documents really are proof of what's taken place.  I'm recalling Mr Chartier during the training from physically seeing him there.  Not because of records, not because of whoever did what, I can clearly recall Mr Chartier being at the training, doing the training session and that is what I am recalling".

27.      If Mr Chartier did receive manual handling training on 14^th February 2000, he had been employed at Jersey Post for three months, but on 31^st January 2001 (over a year after he started) there is the counselling record written by Mr Jehan.  It says -

"It was identified that Jacques has still to attend a manual handling session and have "formal" collection training".

28.      Mr Grimes, (who came across as a perfectly honest witness) said that, in Mr Jehan's position, he would have been concerned to learn that a postman had still not received manual training but certainly at no time was he approached by Mr Jehan on this matter.  Again, on 13^th July 2001 (after the accident with the heavy box) there is a letter written to the Personnel Department at Jersey Post by Dr Graham-Cumming, a specialist occupational physician with BMI Health Services to whom Mr Chartier had been referred.  He wrote in part of his letter -

"He also told me that he (sic) not received any manual handling training.  This is a cause for concern in a postal worker".

Mr Grimes agreed with Advocate Blakeley that no one from the Personnel Department spoke to him about that letter.

29.      Mr Grimes demonstrated to us, most vividly, how he showed his trainees how to test the weight of a box by tilting it.  There is no doubt from what he told us that he would have made certain that everyone of those being instructed could see him carry out this exercise.  It was interesting to hear Mr Grimes say that he was testing the box not only to see whether it was too heavy, but also to see if it was very light.  Back injury could occur in both instances.  We have no doubt at all that Mr Grimes' course covered all the possible dangers that a postman could face in lifting or attempting to lift an unknown weight.  Both representatives of BMI and of the HIS had attended the course and approved it.

30.      However although the Court has no doubt that Mr Grimes believes he is telling the truth they have come to the conclusion that it is most likely that Mr Chartier did not attend the manual training course because of the clear evidence in the counselling record written by Mr Jehan on 31^st January 2001 which states "It was identified that Jacques has still to attend a manual handling session and have "formal" collection training".   Moreover even if we are wrong on that point and Mr Chartier had in fact forgotten attendance at the training it was nevertheless established with his manager that he did not feel adequately trained in that area and that should have been addressed at the time.  Mr Chartier had no reason to be dishonest about the lack of training - he was happy in his job at the time.

31.      There are, however, many sides to this story -

(i)        Mr Chartier's affidavit (his evidence-in-chief) says -

"Before I joined Jersey Post I had no problems at all with my back".

In cross-examination by Advocate Benest, he was asked about his previous employment and specifically "So you never had to lift anything like a pig, say?" To which he replied in the negative.  His medical records belie that for on 27^th April 1995 there is an entry (Mr Chartier was working at a butcher's business as a book-keeper) - "Staff problems.  3 days ago carrying a pig - back in agony".

(ii)       He had also had a problem in the employ of Jersey Post.  It must be recalled that when he was transferred to collections, he took over from a colleague and took over his role as the Union representative for collections.  Mr Chartier is adamant (as the Union representative) that despite what he had been told about sub-dividing a too heavy load, his "colleagues and the Union had stated that if any item was too heavy he should leave it."  In September 2000, he was at Invesco in Britannia Place (the same business as was referred to in evidence by Mr Burke).  He referred to the matter in this way -

"In September 2000 I attended at Invesco in Britannia Place.  On collecting the mail I noticed what I took to be a relatively empty mail bag.  However, on lifting the mail bag it turned out to be heavier than I had thought and I strained my lower back".

He reported the matter, but no Manager's Report was submitted.  He went on to say -

"Although I strained my back, I was not off work but the base and the middle of my back were sore and I carried on having a twinge in my back up to the date of my main accident in May 2001".

(iii)      Mr Chartier says that when he arrived to collect the box from HSBC he rang the bell on the counter.  This is not a battery operated bell and was, in the words of Mr Larkin (the Facilities Manager of HSBC) "clearly audible in the back office". Any one of the staff on duty would, according to Mr Larkin, attend the reception area immediately. The office and the reception area were adjacent.  Mr Larkin had never received a complaint about the bell itself nor about a member of staff failing to attend.  Again, according to Mr Larkin, when a female employee of Jersey Post attended to collect the box, they would regularly ring the bell and obtain assistance.  It should perhaps be pointed out that Mr Larkin prepared a rough diagram of the area in question.  It was inconceivable to him that the "back office" with its complement of seven staff, would ever be left unmanned and especially up to 12 noon, when the office would be particularly busy with the sorting of incoming mail. The sketch does show the box near the entrance door, but Mr Chartier was adamant that it was beside the counter, near the bell and Mr Larkin was able to say that the box was "usually" left by the door for collection.  If a female employee of Jersey Post attended, then, according to Mr Larkin, they would invariably ring the bell and Mr Larkin or one of his five staff would attend, sometimes using a sack trolley, which was always used to transport the trunk from the Statements Department to the reception area. Mr Larkin made this a requirement.  We do not know why no one came into the reception area.  It may be that Mr Chartier was mistaken about ringing the bell;  it may be that someone came while he was taking the cardboard box to the van;  we just do not know and there is no evidence of any kind to assist us.  This is understandable in the light of the very long delay before HSBC was informed that the accident had taken place.

(iv)      It is perhaps surprising that Mr Chartier told us that he tried to open the box.  He wanted to look inside to see if it was mail because he had not carried out this collection before.  One has to ask why, not being able to open the box as it was locked, he did not ring the bell again.  He did not know what the box contained.  He bent inappropriately and lifted the box.  He felt pain and dropped the box.  He then squatted down, using the strength from his legs to lift the box.  He remembered, having been shown by Mr Turner on the induction course, how to squat down before lifting a heavy object.  His explanation to Advocate Wilson was that he used the proper technique shown to him by Mr Turner (not by Mr Grimes) because he then knew that the box was too heavy.  Mr Chartier asserts repeatedly that had the box not exceeded "the agreed weight" of 11 kilograms, he would not have suffered injury.  Of that, this Court remains doubtful.  There is no doubt that the box was very heavy.  In his reply to HSBC's request for further and better particulars (made pursuant to an order of the Royal Court of 8^th September 2004), Mr Chartier pleaded that "it is not alleged that a specific weight limit was exceeded". Mr Chartier also admits in his pleading that "he had been given manual handling training" but "he denies that this was appropriate".  Specifically, he pleads that he was "given no training on how to assess the weight of trunks and/or parcels to collect".  Jersey Post, in its pleading, admits that the trunk weighed 34 kilograms.

32.      The psychiatrists gave a very guarded view on the prognosis of Mr Chartier's mental health.  Both agreed that he had had problems with depression in the past but, of course, there have been two very major events after his accident on 10^th May 2001.  On 26^th July 2002, Mr Chartier pleaded guilty to the possession of a controlled drug (cannabis) with intent to supply and on 4^th October 2002, he was convicted by the Royal Court.  The total amount of cannabis involved was just over one kilo, with a street value of between £5,936 and £6,095.  The Royal Court, although the Crown moved for imprisonment for twelve months, was able to regard the case as exceptional.  He was ordered to serve 150 hours of Community Service with 1 year probation.  The Court was advised that, notwithstanding Mr Chartier's back injury, he was capable of undertaking certain types of Community Service work.  He clearly completed that work to the satisfaction of the Court.  He was in an office on an average for 3 hours a day once a week doing mail shots for charities.  The Attorney General asked for, and was granted, a confiscation order of £4,590.50p.

33.      On 4^th April 2003, the property of Mr Chartier was declared "en désastre".  The désastre was principally brought about due to his inability to meet mortgage repayments.  Although claims totalled £330,783.84p, the sale of Mr Chartier's town property allowed all creditors to be paid in full.

34.      What of his injury?  There is a gulf between the orthopaedic experts.  We have to say immediately that we were impressed by all three experts.  Mr Richard R H Coombs is a consultant orthopaedic surgeon and a senior lecturer on orthopaedics at the Imperial College of Medicine at the Charing Cross Hospital.  Mr Coombs, whose antecedents are formidable by any standards, told us that "You see what you know".  He was called by Mr Chartier, whereas Mr Robert Maurice-Williams (the senior consultant neurosurgeon at the Royal Free Hospital and at the Neurosurgical Unit of the Wellington Hospital) was called by Jersey Post and Professor Shearer (the Emeritus Professor of orthopaedic surgery at the Wessex Nuffield Hospital in Hampshire) was called by HSBC.  All the experts examined Mr Chartier and all the experts examined the MRI scan performed on 16^th April 2002.  There is a difference in the expert opinion. Mr Coombs is adamant that Mr Chartier's back pain is in part due to torn annular fibres which may cause very severe pain.  As Mr Coombs explained to us, the material in the centre of the disc is inflammatory in origin and if it leaks out (through the tear) this material may cause biochemical irritation of the nerve roots.  Although, for Mr Coombs, the MRI scan confirms what he termed a "normal appearance of the upper lumbar discs".  He was able to say, on the balance of probabilities, (his words but our underlining) that there are significant changes at L5/S1 disc level.  Because the cross section images (which he showed to us) confirm some slight bulging at the L5/S1 level, this would, in his expert opinion, be compatible with torn annular fibres.

35.      There is no doubt that Mr Chartier, when he was examined by Mr Coombs, was some 2 stone overweight.  He had some difficulty in mounting the couch, but his straight leg raising only allowed his leg to raise 30 degrees in each leg.  This is an exercise where it is difficult to fake pain because the patient is not entirely aware of the purpose of the exercise.

36.      The experts are diametrically opposed.  Professor Shearer does not accept that there has been any significant change to the L5/S1 disc.  Professor Shearer takes the view that Mr Chartier's long term problems are psychological rather than physical.  In the joint report between Mr Coombs and Professor Shearer, there is this passage -

"Whilst Professor Shearer does not believe that the L5/S1 disc is contributing significantly to this patient's symptoms, he cannot categorically deny that possibility, although if it is contributing, then that distribution is minor compared to the overall level of disability and symptoms which he describes".

Neither Professor Shearer nor Mr Maurice-Williams agrees with Mr Coombs' diagnosis of an annular tear.  Having studied the MRI scan, Mr Maurice-Williams said this -

"The MRI scan carried out in April 2002, that is to say approximately a year after the latest index incident reveals no more than modest degenerative change confined to the L5/S1 disc and a minimum disc bulge.  The appearances are unremarkable for a man of Mr Chartier's age and build, do not provide any satisfactory explanation as to why there should be limitation of straight leg raising or severe ongoing disabling symptoms.  However, the appearances could account for a certain amount of back pain.  They do not reveal anything which would warrant any form of surgical intervention.

It is also of note than when he was seen by the pain specialist in mid 2003 Dr Ilangovan thought that there was clearly a considerable psychological component to his symptoms and referred him for assessment by a clinical psychologist.  Facet joint injections were unremarkable and it appears that Mr Chartier may have declined further treatment."

37.      Mr Maurice-Williams felt that the back pain should have cleared up in a few weeks and in any event, both the defendants' experts agree that Mr Chartier should have been able to return to some form of sedentary work within 3 to 6 months of the May 2001 accident.

38.      Mr Coombs was emphatic that he was not wrong in his annular tear diagnosis.  He went on to say that the other experts were not as experienced as he was.  The problem is a very serious one.  Neither Mr Farid Kineife (staff grade in orthopaedic surgery at the General Hospital), nor Mr Naidu (an associate specialist surgeon in orthopaedics and trauma at Re-Action in Bon Air Lane), nor Mr Clifford (a consultant orthopaedic and trauma surgeon at the General Hospital) nor Dr A P Nisbet, the radiologist who carried out the MRI scan at the General Hospital found anything consistent with torn annular fibres.  Of course none of these gave evidence before us.

39.      We can leave this troubled matter for a moment while we consider the law.  We have already decided that the first accident (where the door swung on to Mr Chartier's back) does not show any negligence on the part of Jersey Post. 

40.      We must therefore deal only with the accident that occurred on 10^th May 2001.  Counsel has asked us to find only on liability in the first instance.

41.      Mr Chartier has to satisfy the Court on a balance of probability that but for HSBC's negligent conduct, he would not have suffered his injury.

42.      It is important to recall that Jersey Post and HSBC had a contract for the collection and delivery of the bank's customers' statements.  There was also a service agreement between HSBC and Pro-Mail (a division of Jersey Post), which was to take effect from 19^th June 2000.  Copies of both agreements are in the bundle.  They are unsigned and undated.

43.      In Louis v E Troy Ltd et ors [1970] JJ 137, the then Deputy Bailiff stated (and we agree the statement) that the three essentials of actionable negligence are -

(i)        A legal duty to take care

(ii)       Negligent conduct in breach of that duty

(iii)      Injury or damage caused by that negligence to the complainant.

In the terms of the contract, Jersey Post was obliged to "employ competent and properly skilled personnel and maintain a proper system of work in the provision of the services and in the performance of its obligations under this agreement."

44.      We have to recall that Mr Chartier had never carried out this particular collection duty before.  It is clear from the evidence that Jersey Post had not carried out an adequate risk assessment because nothing had been done with HSBC even to allow "heavy" labels to be placed on the trunk.  It may well be that Jersey Post should have stipulated the maximum weight in each box without the "heavy" label being applied.  They did not.  Because the trunks carried only paper, several smaller trunks (not capable of carrying 24 kilograms or anything near that weight), might have been provided.  They were not.  When Mr Christopher Fox instructed Mr Chartier to carry out the duty, he might have said (despite being under pressure) "Do not forget to test the weight of the sealed box". He did not.  There are, of course, no pleaded or argued breaches of any statutory duty and the argument of Mr Chartier falls only within the common law duty of care.

45.      There were three experts retained by the parties.  Mr Jonathon Coyde for Mr Chartier, Dr Tony Cox for Jersey Post and Mr Mark Foley for HSBC.  Each of the experts took a view.  On one point all three were agreed.  A generic risk assessment should have been in place for the work activity of "picking up packages from customers' premises and this should have identified significant manual handling risks and corresponding safeguards; this should have been carried out by a competent person on behalf of the employers.  If, as the Jurats have found, Mr Chartier was not fully trained in manual handling, then it was incumbent on the employer (Jersey Post) at least to warn him that the locked box might be heavy.  It is clear that Jersey Post owed Mr Chartier a duty of care but Mr Chartier should have tested the weight of the box before attempting to lift it and he should have sought assistance if, having tested the box, he found it to be heavy.  He had a mobile phone and he had already rung the bell. 

46.      Mr Chartier was aware, (from the Invesco incident) that a seemingly light bag could be heavy.  There had been no problem of any kind concerning the weight of the trunk since the contract was entered into in June 2000 between Jersey Post and HSBC.  In his affidavit, Mr Chartier says -

"I left the box at Pro-Mail, returned to Jersey Post and reported the matter to my line manager, Mr Benest.  Mr Benest said that he would phone HSBC as he informed me that there was an agreement between HSBC and Jersey Post that if a box is too heavy HSBC would contact Jersey Post and they would send two people to collect the item.  I understand from colleagues that Jersey Post have never in fact sent two persons to pick up any items from HSBC".

47.      So much of Mr Chartier's understanding is derived from hearsay evidence.  Not one of the witnesses called by Jersey Post (and particularly Mr Benest) had received complaints from a postman regarding collection of trunks from HSBC though Mr Benest did say that at the time of the quarterly collection, when the boxes were clearly heavier, then two people would go down.  Mr Benest did, however, say that Mr Chartier would be late if he arrived at HSBC at 11.30.  Mr Chartier says that there was no notice on the box, that on previous occasions, when he had handled trunks, they were not heavy and that he was in a rush to complete the round.

48.      We feel that the problem lies in the fact that Mr Chartier just did not think.  He rang the bell - presumably having looked inside the cardboard box to see that it contained statements - in order to find out what the locked trunk contained.  It does not surpass belief that he might have assumed that the cardboard box was an overflow from the metal trunk and perhaps tested the weight by lifting it by one of the handles (even if he had not been trained to do so) or rang the bell again, to ensure that the trunk did contain statements and that he was to take the trunk away.  If someone had come, he might have inquired into the weight of the box.

49.      Under the agreement, Jersey Post had an obligation -

"4.2     to employ competent and properly skilled personnel and maintain a proper system of work in the provision of the services and in the performance of its obligations under this agreement".

This was not a minimal contract.  There was an annual charge by Pro-Mail (for all its complex work) of £950,000 and in that service agreement "Jersey Post will provide all bags, bag labels and ties as are deemed necessary by Jersey Post."

50.      It is clear that Jersey Post did not carry out any adequate risk assessment. If it had, the risk of injury from over-laden trunks would have been recognized.  It was not.  Had Mr Chartier attended Mr Grimes' manual handling course (and the Jurats have decided on the balance of probabilities that he did not), had Jersey Post followed their usual procedures on a new round, had they not put Mr Chartier under pressure then our decision might not have been the same.

51.      As it is, Mr Chartier, with his medical history of depression, is not in the mould of the "man on the Connex bus".  He had a history of back trouble, he had a clear aversion to dogs and he had had experience of lifting heavy weights, both within the postal service and earlier.

52.      We are only asked to assess liability.  We cannot see that HSBC is answerable in law to Mr Chartier.  They did what was required under their contract.  The health and safety experts said that it was probably "best practice" for HSBC to have informed Jersey Post that the trunk was filled to capacity.  They did not weigh it.  They were not asked to - no maximum weight was imposed by Jersey Post. They had no labels provided to say that the trunk was heavy.  They did not and could not have known that Mr Chartier had never collected trunks from them before.  It does not seem to us to be reasonable (notwithstanding that there were administrative problems) for Mr Chartier to have been sent alone on a round of collection that he had never done before and which went well beyond the normal collection round of a postman.  Mr Chartier was under time constraints and his attitude was not helped, in our view, by a history of depression and what he described as "panic attacks". The psychological experts have agreed that the accident has contributed to Mr Chartier's state of mental health.

53.      Nevertheless, Mr Chartier must bear some responsibility for the accident of 10^th May and the Jurats would reduce any financial award (because of his contributory negligence) by 30%.

54.      It is appreciated that Mr Chartier will have difficulty in finding work in the future.  He cannot go back to Jersey Post but he is, on the medical evidence, capable of a certain amount of work.  Not only is he, in our view, capable of some work, but he will (as has been stated by all the experts) benefit psychologically if he starts work.

55.      Counsel have not asked us to assess the amount of compensation that should be paid.  They will come back if the matter cannot be resolved. 

Authorities

Louis v E Troy Ltd et ors [1970] JJ 137.