Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 3	Ref:	COG8397
Judgment: approved by the Court for handing down
(subject to editorial corrections)*	Delivered:	17/02/12


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________

BETWEEN:

STEPHEN HYNDMAN

Plaintiff/Appellant;

-and- WILLIAM BROWN

First Name Defendant/Respondent;

-and- COLIN BRADLEY LIMITED

Second named Defendant/Respondent.

________ Before: Higgins LJ, Girvan LJ and Coghlin LJ ________

COGHLIN LJ (delivering the judgment of the court)

[1] This is an appeal from a decision of Hart J delivered on 6 September 2010 at the conclusion of which the learned trial judge entered judgment for the plaintiff/appellant ("the appellant") against the first named defendant/respondent ("the first respondent") for damages amounting to £71,124.70 and gave judgment for the second named defendant/respondent ("the second respondent") against the appellant. The original appeal was against the learned trial judge's award of damages and his finding that the second respondent was not liable to the plaintiff. However, prior to the hearing, the parties indicated that an agreement had been reached with respect to the quantum of damages and the appeal proceeded before this court in relation solely to the liability of the second named respondent. The appellant was represented by Mr O'Donoghue QC and Mr Rory Donaghy while Mr Dermot Fee QC and Mr McHugh appeared for the first respondent and Mr Paul Boyle represented the second respondent. The court is grateful to all counsel for the benefit that it has derived from their carefully prepared and well-focused oral and written submissions.

Background facts

[2] The appellant is now 28 years old and he was approximately 20 when he sustained personal injuries in the course of harvesting potatoes in Cumbria on 3 September 2003. At that time the appellant was employed as a seasonal worker by the first respondent, an agricultural contractor from Magherafelt. At the material time the first respondent employed some 15 individuals both full-time and part-time who were variously employed in the Republic of Ireland, Northern Ireland and in Cumbria.

[3] The second respondent is a company controlled by Colin Bradley who grew potatoes on a very large scale around Blackpool, in Cumbria and in the adjoining area of the Scottish borders. For the purposes of this judgment the second named defendant will be referred to as Mr Bradley. In 2003 Mr Bradley contracted with the first respondent to harvest potatoes for him from some 650 to 700 acres. The appellant was one of the first named respondent's employees engaged in this work and his job was to drive a tractor and trailer beside a self-propelled mechanical potato harvester. The tractor, trailer and self-propelled harvester were the property of the first respondent. Prior to the accident the first respondent's self-propelled harvester had broken down and the first respondent had borrowed a mechanical harvester and tractor from Mr Bradley. Mr Bradley's harvester was not self-propelled and drew its power by means of a Power Take Off (PTO) from the engine of the tractor by which it was drawn. On the day of the accident the appellant was driving a tractor and trailer alongside the tractor towing Mr Bradley's harvester. As the potatoes were lifted from the ground by the harvester they were mechanically loaded onto the trailer drawn by the appellant's tractor. When that trailer was full the appellant's task was to drive each load to mechanical grading machines which were positioned at the centre of a group of fields in which the men were working. The tractor drawing the harvester was driven by another of the first respondent's employees, Mr McVeigh and, in addition to the appellant, a Mr Robley was assisting in the operation. Mr Robley had been employed by the first named defendant for one or two days prior to the accident.

[4] The field being harvested was stony and from time to time the harvester became blocked with stones. Each time that a blockage occurred it was necessary to stop the harvesting operation in order to allow the stones to be cleared from the machine. It seems that each time such a blockage occurred Mr McVeigh would initially try to dislodge the stones by flicking the PTO on and off. If that did not clear the blockage someone had to climb onto the harvester after the PTO had been disengaged, remove the guards over the moving parts and try to loosen the offending item. Having cleared the blockage, that person would then replace the guard, dismount, move away from the danger zone and signal to Mr McVeigh by giving a "thumbs up" sign indicating thereby that it was safe to re-engage the PTO. Throughout this entire manoeuvre the tractor engine was idling but not turned off. It seems that the accident occurred when the PTO was re-engaged at a time when the appellant was still endeavouring to dislodge an obstruction, his trousers were caught and his foot then dragged into the machinery. The appellant denied that he had been trying to free the obstruction by kicking it but the learned trial judge preferred the evidence of Mr Robley who said that the appellant had been "heeling" with his foot to make a hole for a spade to be used to remove the stones. The trial judge also found that the engine of the tractor should have been turned off and not left to idle before the appellant set about removing the obstruction. That was a well-known precaution referred to as the "safe stop" procedure and the learned trial judge was satisfied that the accident had occurred because Mr McVeigh had not taken proper steps to satisfy himself that the appellant was no longer in a position of danger before flicking the PTO on and off. The learned trial judge was inclined to accept Mr Robley's suggested explanation that Mr McVeigh may have failed to see the appellant working at the blockage as a consequence of his vision being impaired by the sun setting behind the harvester.

The first instance decision

[5] Hart J found the first respondent vicariously liable for the negligence of Mr McVeigh because the precaution of turning off the engine was such an elementary, simple, obvious and well-understood precaution that to fail to observe it clearly constituted negligence upon his part. He also held that the appellant had established a breach of the Provision and Use of Work Equipment Regulations 1998 ("PUWER") on the part of the first respondent who had control of the harvester which was a machine that was clearly "work equipment" within the meaning of Regulation 2(1). The learned trial judge considered that the appellant had been guilty of contributory negligence and that reduction of the award of damages by 20% was appropriate in the circumstances.

[6] The appellant also framed his claim against the second respondent in negligence and breach of statutory duty. Relying upon the decision in Caparo Supplies Industries Plc v Dickman (1990) 2 AC 605 the learned trial judge rejected the claim in negligence being satisfied that the appellant had not established a sufficient relationship of proximity between himself and the second respondent and that it was not fair, just or reasonable to impose a duty of care upon the second respondent in the circumstances.

[7] The appellant's case against the second respondent in respect of breach of statutory duty was founded upon the allegation that the second respondent had control of the harvester at the time of the injury in accordance with Regulation 3(3)(b) of PUWER and, consequently, owed duties to provide information/instructions and training to the appellant in accordance, respectively, with Regulations 8 and 9.

[8] In his carefully considered judgment the learned trial judge referred to a number of authorities in the course of which Regulation 3(3)(b) of PUWER had been considered and noted that the Regulation only applied to the extent of the defendant's control. He then proceeded to deal with the extent of the second respondent's control in the following terms:

"[45] Mr Bradley lent the complex equipment comprising the towed harvester and the tractor which provided the power, equipment which was known to jam from time to time in the course of normal operations to Mr Brown, and it was handed over to his employees who had been operating an equally complex and even more expensive self-propelled harvester for the same purpose of harvesting potatoes. Mr Bradley understandably believed that he could entrust his equipment to Mr Brown –

(a) because Mr Brown had proved himself to be a very competent contractor and someone who employed competent drivers, earlier that season and in the previous season; and

(b) in the previous year Mr Brown himself had actually used this particular machine. I am satisfied that Mr Bradley lent the equipment to Mr Brown because he wanted Mr Brown to be in a position to fulfil Mr Brown's contract to him so that Mr Bradley in turn could fulfil his contracts with his suppliers.

[46] Once the equipment was handed over Mr Bradley did not exercise any control over the manner in which the machine was to be operated by Mr Brown's employees. Mr Bradley anticipated that if any small repairs were needed on site Mr Brown's employees would be sufficiently experienced and competent to carry out what one might refer to as running repairs in those circumstances. If more expensive work was required which would require a local agent to come out and work on the machine then Mr Bradley anticipated that he would arrange for this to be done and bear the cost. Because it was anticipated that the loan would be a short-term one no question of payment for the use of the equipment by Mr Brown arose at that time. This was a gratuitous loan to a competent contractor of similar equipment to that which he was using to fulfil his contract to Mr Bradley, and Mr Bradley made this gratuitous loan so that his own business would not be interrupted.

[47] Mr Bradley undoubtedly retained some control over the equipment because this was only to be a short-term loan. If I had to consider only whether Mr Bradley 'had any control' then I consider that Mr Bradley would fall within the ambit of Regulation (3). But what was 'the extent of his control'? He did not have any control over the way the equipment was to be operated once Mr McVeigh and the other workmen took it over. Mr Bradley's manager confined his operations at that point to identifying the fields, varieties and quantities of potatoes to be harvested on any given day in order that Mr Bradley might fulfil his contractual obligations to his customers. How Mr Brown's employees were to operate the machine and harvest the potatoes was entirely for Mr McVeigh to decide as an experienced operator of such equipment. In the nature of potato harvesting blockages of harvesters were bound to occur, and if they did occur it was for the operators to clear the blockage. I am satisfied that no one, whether Mr Bradley, Mr Brown or Mr Brown's employees, or anyone else, expected Mr Bradley to instruct Mr Brown's employees as to how they were to operate the harvester. No doubt it would be different if they were untried or inexperienced, or if Mr Bradley did not know that they were experienced and competent people who could be expected to use the machinery properly. If that were to be the case then one could expect him to enquire about their training in health and safety matters and provide instruction material as required by Regulations 8 and 9. He did not provide any such instructions or any such material and unless he is within the ambit of Regulation 3(3) he is not required to do so."

[9] In the circumstances Hart J concluded that the second respondent did not have sufficient factual control of the potato harvester and tractor at the time of the injury to Mr Hyndman to come within the scope of Regulation 3.

The statutory framework

[10] PUWER 1998 transposed into UK Law Council Directive 89/655EC. However the Regulations go further than the provisions of the Directive and, as the explanatory note to the Regulations states:

"4. Save in the case of Regulation 34 (reports) these Regulations, as the 1992 Regulations, place duties on employers. They also place those duties (not required by the Directive) on others, who now include (regulation 3(3) to (5)) certain persons having control of work equipment, of persons at work who use or supervise or manage its use or of the way it is used, to the extent of their control."

[11] Since the accident occurred in Cumbria it is PUWER 1998 which applied and the following provisions are relevant:

"Regulation 3

(3) the requirements imposed by these Regulations on an employer shall also apply –

(a) to a self-employed person, in respect of work equipment he uses at work;

(b) subject to paragraph (5), to a person who has control to any extent of –

(i) work equipment;

(ii) a person at work who uses or supervises or manages the use of work equipment; or

(iii) the way in which work equipment is used at work, and to the extent of his control.

(4) Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).

(5) The requirements imposed by these Regulations shall not apply to a person in respect of work equipment supplied by him by way of sale, agreement for sale or hire, purchase agreement.

Information and instructions

8-(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.

(2) Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has available to him adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.

(3) Without prejudice to the generality of paragraphs (1) or (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on –

(a) the conditions in which and the methods by which the work equipment may be used;

(b) foreseeable and normal situations and the action to be taken if such a situation were to occur; and

(c) any conclusions to be drawn from experience in using the work equipment.

(4) Information and instructions required by this Regulation shall be readily comprehensible to those concerned.

Training

9-(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.

(2) Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."

The parties' submissions

[12] In an attractively constructed and presented argument Mr O'Donoghue QC referred to the finding by the learned trial judge at paragraph [47] of his judgment that:

"Mr Bradley undoubtedly retained some control over the equipment because this was only to be a short term loan."

However, Mr O'Donoghue argued that Hart J had concentrated upon the degree of control that could be exercised by the second respondent after (our emphasis) the harvester had been transferred to the first respondent whereas he should have focussed upon the degree of control exercised by the former at the point of handing over the machine. He submitted that, for the purposes of Regulation 3(3)(b)(iii), the second respondent had control of the harvester at the point of handover insofar as, at that point, he had a duty to satisfy himself that any employees of the first respondent who would be required to operate or use the machine at work would be restricted to those who had been properly and effectively instructed and trained in accordance with Regulations 8 and 9. Mr O'Donoghue relied upon the fact that Mr Bradley simply appeared to have "assumed" that all of the first respondent's employees required to work or use the machine had been so instructed and trained on the basis of his previous relationship with the first named respondent. He argued that Mr Bradley should have made a specific inquiry as to whether that was to be the case before handing over the harvester and that he should not have handed it over without receiving an appropriate assurance from the first named respondent. Mr O'Donoghue was supported in his submissions by Mr Fee on behalf of the first named respondent.

[13] On behalf of the second named respondent Mr Boyle submitted that the learned trial judge had been correct in focusing upon the degree of control exercised by the parties at the time of the accident. At that time the second respondent would have retained the ownership of the harvester and would have been able to reclaim possession if it was necessary in order to, for example, carry out essential maintenance and/or repairs. The second respondent could also direct the particular fields that were to be harvested and the priority in which that should take place. However, Mr Boyle emphasised that, at the time of the accident, the second respondent did not and could not exercise any control over the identity of the servants or agents of the first respondent who were using the machine or restrict such use to only those in respect of whom the second respondent was satisfied had been properly instructed and claimed.

Discussion

[14] A number of authorities were cited by the parties in relation to the concepts of "control" and, "to the extent of his control" incorporated in Article 3(b)(iii). In Spencer-Franks v Kellogg, Brown and Root Limited and Others [2009] 1 All ER 269 a mechanical technician employed by the first defendant had been supplied to work on an oil platform operated by the second defendant. Whilst working on the platform he had been asked to inspect and repair a closer on the door of the central control room. In the course of carrying out this operation the plaintiff was injured when the linkage arm of the closer struck him in the face. At paragraph [45] of his judgment Lord Rodger observed:

"[45] The second defenders are the platform operators. If they had employees on the platform, then, by virtue of Regulation 3(2), the relevant requirements of Parts II to IV would apply to the work equipment which their employees used. But, in addition, by virtue of Regulation 3(3) the relevant requirements would be imposed on the second defenders in respect of any work equipment of which they had control, to any extent, but only to the extent of their control. So, if they were control of the control door, then, by virtue of Regulation 3(3)(b), the relevant requirements of Part II would be imposed on them in respect of the door and its closure, irrespective of whether any employee of theirs ever used it. Therefore, in terms of Regulation 4, work equipment which the second defender's controlled would have to be suitable in any respect which it was reasonably foreseeable would affect the health of 'any person', including the pursuer, even though he was employed by someone else."

However, Lord Rodger went on to note that the House had not heard any detailed submissions on how Regulations 3(2) and (3) worked since there was a contract between the defenders containing an indemnity clause in favour of the second defenders.

[15] The legislation was further considered by the House of Lords in Smith v Northamptonshire County Council [2009] 4 All ER 557 a case in which the plaintiff, an employee of the defendant local authority, had been injured when she stumbled on the defective edge of a ramp which she had been using in order to collect a disabled person from her home in order to take her to a day centre. The ramp had been installed some ten years previously by the National Health Service. The Court of Appeal held that each case turned on its facts and that the most significant features were that the ramp had not been installed by the employees of the authority, that the authority had no ability to maintain it, and that it was part of the disabled person's premises. The case primarily concerned the correct construction of the words "…provided for use or used by an employee…at work" contained in Regulation 3(2), a regulation which, unlike Regulation 3, does not contain any explicit reference to control. The majority of their Lordships reached the conclusion, which has attracted fairly extensive criticism, that Regulation 3(2) should be interpreted purposively by adopting the test of whether the equipment had been incorporated into and adopted as part of the employer's business or other undertaking. However, at paragraph [29], Lord Hope, who, with Baroness Hale, dissented, made the following remarks in relation to the concept of control employed in Regulation 3:

"[29] The situations referred to in Regulation 3(3)(b) indicate what 'control' should be taken to mean in this context. They are all situations where the person has provided or authorised the work equipment for use at work. Control of its use to any extent will do, the person being liable – as the concluding words of the sub-paragraph indicated – to the extent of his control. He does not have to ensure that the maintenance log is kept up-to-date, for example, if this is under the control of someone else. But he does have to fulfil obligations that are under his control, such as ensuring that the equipment which he authorises for use by the person at work is suitable for the purpose for which it is to be used and that it is in good repair. Understood in this way, Regulation 3(2) will serve the purposes indicated by the Equipment Directive without exposing employers to strict liability in situations where they not in a position in a position to exercise control to any extent of the equipment that is used at work by the employee."

To some extent those remarks may be regarded as obiter since the discussion of the concept of "control" contained in Smith's case related to control by the plaintiff's employer and not a "quasi-employer".

[16] In Ball v Street [2005] EWCA Civ 76 a farmer suffered injury involving the loss of sight in one eye when he was attempting to adjust a hay bob machine owned by the defendant who farmed nearby and whose services he had hired for reward, including the use of the machine. At the time of the accident the defendant had been engaged in social activities and had permitted the plaintiff to use the hay bob for the purpose of continuing the contract. The Court of Appeal upheld the finding of the trial judge that the Regulations had been applicable to the situation existing between the parties and at paragraph 69 Longmore LJ said:

"69. It seems to me, as it seems to My Lord, that Mr Street continued to have control of the hay-turner even while he was away from Mr Ball's farm. It was his machine and he could, if he wished, have asked Mr Ball not to use it or, indeed, have taken it away from the farm. It was merely convenient that the hay-turner should remain in the barn on that day (just as it was convenient that it should remain there during the night when it was not being used at all). But Mr Street's control continued to exist at all times. If one asks for what purpose that control must exist, the answer is that it exists (inter alia) for the purpose of maintaining the hay-turner in the state in which it was required to be maintained as much as for any other purpose. Only Mr Street could be expected to maintain it in whatever condition it was appropriate that be maintained."

[17] The requirement to consider the purpose for which control was exercised was taken up again by the Court of Appeal in Mason v Satelcom Limited an Another [2008] EWCA Civ 494. In that case the claimant was employed by the first defendant company as a field service engineer and, in the course of a contract with the second defendant local authority, he attended at the server room of an information centre in order to repair some computer equipment. It was necessary for an employee of the authority to unlock the door of the server room in order to permit the claimant access and, once access had been obtained, the claimant used a ladder that he found therein in order to reach the cabinet in which the computer equipment was contained. The ladder was too short to provide proper and safe access and the claimant fell sustaining serious personal injuries. There was no evidence as to who owned the ladder but it was common case that the second defendant could have forbidden its use or removed it from the premises at any time. It was accepted that the claimant's employer was a specialist contractor who had full control of how and when the work was to be completed in the server room. In the course of delivering the judgment of the court Longmore LJ said:

"[13] In my judgment one has to ascertain in relation to a non-employer, whether there was a purpose for which he has such control as he has. The evidence deployed before the judge did not enable him to make any findings about the ownership of the ladder; it might have belonged to East but could equally have belonged to Redbridge or have been brought on to the premises by an unknown workman. It was no doubt this among other things that led him to conclude (paragraph 63) that East had control of it in the sense that they could have either removed the ladder to another part of the building or elsewhere or placed a notice of some kind upon it. I agree with the judge that they did have control to that extent, but that was the limit of their control and it does not follow as the judge seems to have thought (paragraphs 64 and 74) that the Equipment Regulations then apply; that is because the Regulations only apply 'to the extent of' East's control. It is this concept of the 'extent of control' that makes it necessary to ascertain whether there was a purpose for which the control was exercised. If East had owned the ladder it might be possible to say (as the court was able to say in Ball v Street [2005] EWCA Civ 76 para. [69] that control existed (inter alia) for the purpose of maintaining the ladder in the state in which it needed to be in order to be an effective ladder. But in the absence of a finding that East owned the ladder, it is difficult to say what the purpose of East's control was beyond the purpose of ensuring that it did not get in anyone's way.

[14] It is important in this context to be aware that the Equipment Regulations impose a large number of obligations both on those who are employers in law and on persons having control of equipment to the extent of that control. Those obligations include the obligations of suitability and maintenance in Regulations 4 and 5 as set out above, but extend considerably further to obligations of inspection, imparting health and safety information and instructions and training for those who will use the work equipment in Regulations 6, 8 and 9 respectively. It would border on the absurd to say that East had all these obligations as well as obligations in relation to the suitability of their equipment in respect of a ladder which just happened to be on their premises; yet the logic of Mr Little's argument applies to those other Regulations just as much as to Regulation 4. He submitted that health and safety so dominated our national life that the Regulations were, indeed, intended to go that far but I, for my part, cannot accept that submission.

[15] If it is right that one should try to discover the purpose for which East had such control of this ladder as they had, one can at least say negatively that it was not for the purpose of inspecting this ladder or training users (who were not their employees) in relation to its use, nor for the purpose of imparting information and instructions in relation to it. Likewise it was not for the purpose of ensuring that the ladder was constructed or adapted (within Regulation 4(1)) so as to be suitable for the purpose for which it was used. East could not know or reasonably anticipate that Mr Mason would use a perfectly ordinary ladder for a purpose for which it was never designed."

[18] In Mason Ward LJ agreed that it was necessary to consider the purpose of the Regulations and at paragraphs [51] and [52] he stated:

"[51] In my judgment one must look at the wider purpose of these Regulations. In essence they are directed at the true employer/employee relationship where the employer has control over the work equipment itself, over the workers who are to use it, and over the way it is to be used. The quasi employer's responsibility should be seen in the same way. In other words if the equipment itself poses a threat to the health and safety of those who use it, those who control the equipment can expect to be responsible for the safe working of the equipment. That is the purpose to be served by 3(3)(b)(i). ….. If someone outside a strict employer/employee relationship nonetheless somehow has control over whomsoever may use the equipment or over the way the equipment is used, he too can expect to protect and health and safety of the worker: 3(3)(b)(ii) and (iii) cover that mischief.

[52] Whilst I am not convinced that one can read words into the each of the Regulations 4 to 33, it is in my judgment permissible to read words into Regulation 3(3)(b) to enable the construction to be given which will make sense to those in the trade or business or other undertaken (the class covered by 3(4)) and still give sufficient protection to the workers for safety is of concern to us. I believe one can achieve this by adding after 'and to the extent of his control' the words 'insofar as the particular matters hereinafter set out relate to and are within his control'. In that way one can focus on the scope of his control for the particular purpose for which he has to exercise that control."

[19] Any consideration of the extent or scope of control exercisable by a quasi-employee for the purpose of the relevant duty imposed by the Regulations is likely to be highly fact specific. In this case, as the learned trial judge recognised, Mr Bradley retained a degree of control of the condition of the machinery but no question arose as to the suitability of the harvester for the purpose for which it was being used and the plaintiff's injuries were not caused by or related to any defect or failure to maintain the machinery. The plaintiff's claim under the Regulations of 1998 was founded upon Regulation 8, the duty to provide adequate health and safety information and appropriate written instructions to all persons using work equipment, and Regulation 9, the duty to ensure that all persons using work equipment receive adequate training for purposes of health and safety. However Mr Bradley had no control over the identity of the employees selected to operate the harvester on a day to day basis or the extent of their instruction or training.

[20] Once the second defendant had handed over the harvester to Mr Brown the learned trial judge found that he did not continue to exercise any control over the manner in which the machine was to be operated by Mr Brown's employees and we have referred to the relevant passage of his judgment, contained in paragraph [47], earlier in this judgment. In the context of such an indisputable finding it is not surprising that the plaintiff's advisors concentrated upon the control exercised by the second named defendant at the point of handing over the machinery to Mr Brown rather than at the time of the accident.

[21] The principal allegations of negligence made by the plaintiff against the second defendant were that Mr Bradley had failed to provide safety instructions in the form of a handbook and had also failed to ensure that the plaintiff was effectively instructed about the need for proper safety precautions. The learned trial judge concluded that there was not a sufficient relationship of proximity between the plaintiff and Mr Bradley as required by the decision in Caparo Supplies Industries Plc v Dickman [1990] 2 AC 605. As noted earlier the trial judge made factual findings that Mr Bradley was justified in believing that Mr Brown was an experienced contractor and that his employees were highly competent and conscientious on the basis of his experience with Mr Brown and his employees in the current and previous seasons. He had no doubt that if Mr Bradley had not been of that view he would never have lent this extremely valuable item of equipment to the first named defendant to be used by his employees. At paragraph [22] of his judgment the trial judge also expressed the view that it was not fair, just or reasonable to impose a duty of care upon Mr Bradley in the circumstances, again, within the context of the Caparo decision. He described the first named defendant as a very experienced and competent agricultural contractor and continued:

"Until his self-propelled potato harvester broke down his employees had been working for a considerable period of time with a machine using an essentially identical mechanism to harvest potatoes. The only difference being that Mr Brown's machine was self-propelled, and therefore even more expensive and complex than Mr Bradley's towed machine. There was therefore no reason for Mr Bradley to believe that he or his employees needed to give any instructions as to the dangers of working with this machinery to Mr Brown's employees and Mr Bradley lent the machine to Mr Brown. It would be different Mr Bradley did not know whether Mr Brown's employees were familiar with potato harvesters, or if he had doubts as to their competence in using such machinery, but neither was the case."

[22] The learned trial judge took into account similar factors when considering the plaintiff's claims against Mr Bradley in respect of alleged breaches of Regulations 8 and 9. He specifically stated that he had found Mr Bradley to be an impressively frank and straightforward witness who tried to present his position in an honest and straightforward fashion, an approach that he contrasted with the evidence of Mr Brown which he did not consider to be "entirely reliable." He expressed the belief that Mr Brown had tailored parts of his evidence to try to shift the responsibility for what had happened on to Mr Bradley because, he, Mr Brown, did not have current employer's liability insurance at the time of the accident. There was no evidence that might have alerted Mr Bradley to any shortcoming or inadequacy in the training or instruction of Mr Brown's employees with regard to the operation and use of the equipment.

[23] The learned trial judge does appear to have found, at paragraph [46] of his judgment, that the transfer of the harvester and tractor by Mr Bradley constituted a "gratuitous loan" and, upon that basis, he seems to have distinguished the decision in Ball v Street – see paragraph [40] of the judgment. However, he also found that such a loan had been made by Mr Bradley "….so that his own business would not be interrupted." At paragraph [47] he recognised that Mr Bradley undoubtedly retained some control over the equipment because "….this was only a short term loan."

[24] Whether or not Mr Bradley would ultimately have contemplated charging for the relatively short period of the initial loan, it seems clear to us that the equipment was provided in the course of a commercial relationship between Mr Brown and Mr Bradley in furtherance of their mutual desire to progress the contract as effectively as possible. Thus, in our view it was provided in the course of carrying on a business within the meaning of Regulation 3(4). The machinery, while complicated, was suitable for the purpose for which it was intended to be used, properly maintained, in good working order and free of mechanical defect. The learned trial judge found, on the evidence, that at the time of transfer, Mr Bradley, on the basis of previous direct experience and observation, knew Mr Brown to be a very competent contractor who employed a highly skilled staff. There was no evidence whatever that, at that time, Mr Bradley was or should have been aware of any failure by Mr Brown to properly instruct and warn the plaintiff or that he could have in any way foreseen the unusual and dangerous manner in which the machinery was to be used by Mr McVeigh and the plaintiff. In the circumstances we are satisfied that the learned trial judge was entirely justified in the decision that he reached with respect to the liability of the second named defendant and, accordingly, that aspect of this appeal must be dismissed.

[25] In view of the terms now agreed between the parties we allow the appeal in respect of damages by consent and substitute the figure of £90,085.19, to include agreed interest, for that arrived at by the learned trial judge.