Articles

3/4/2009 - ORCHARD v LEE [2009] EWCA Civ 295

 

The Court of Appeal held that a 13 year old schoolboy was not liable for injuries caused to a dinner lady, when he collided with her whilst playing tag in the school grounds. The boy was running backwards at the time of the collision. Serious facial injuries were suffered. There was no school rule against running in the area where the accident occurred. The Court of Appeal held that the boy’s behaviour was the conduct to be expected of a 13 year old boy playing tag. The Court held that no ordinarily prudent and reasonable 13 year old boy would reasonably have foreseen the risk of injury by virtue of the game being played. It did not amount to conduct in which he would reasonably foresee that there was likely to be injury beyond the normal bumps and bruises encountered in the school grounds.


8/4/2009 - WHIPPEY v JONES [2009] EWCA Civ 452

 

The Court of Appeal held that before deciding whether a dog owner had been negligent in unleashing a dog (which went on to injure a passer by), a court had to be satisfied that a reasonable person in the dog owner's position would contemplate that the injury caused by the dog was likely to follow from his acts or omissions.

 

In this case the owner of a Great Dane (an RSPCA inspector with specialist knowledge of the breed) unleashed the dog in parkland, which he knew was not often frequented by other people or indeed dogs. The owner lost sight of the dog. It appeared from behind a bush and connected with a runner’s shoulder. The runner fell down a bank and suffered a fractured ankle. The accepted evidence was that the owner would only let the dog off the lead when he was satisfied that nobody was in the vicinity and that, on the occasion in question, he had checked to see if anybody was around and, having been satisfied that there was not, had let him off. The dog was large and had a tendency to approach strangers and occasionally bark from a distance of 5-10 feet but, importantly in the Court’s consideration, he had no tendency to jump up at people. The Court of Appeal held that there was no reason why the owner, as a reasonable dog handler in the park should therefore have anticipated that if the dog was let off the lead it would bound up to a passer by, contact him and cause injury. Donoghue v Stevenson (1932), Bolton v Stone (1951) and Glasgow Corp v Muir (1943)applied.

 

 

 

The Court of Appeal has held that a piece of scrap metal that a lorry driver had used as a makeshift tool in the course of his employment was not "provided for use or used by [him] at work" as "work equipment" under Regulation 3(2) of the Provision and Use of Work Equipment Regulations. The employer had no knowledge of the use of the scrap metal and therefore gave no permission (express or implied) for its use. The Regulations did therefore not apply and the Claimant’s claim that his employer had failed to provide a suitable place to store his tool, did not succeed.

 

The Claimant suffered personal injuries when his tipper lorry overturned as he had been driving too fast. He claimed that he had been unable to move his right foot from the accelerator to the brake, as a piece of angle iron (approx 16 – 18 inches long) that he kept in the side pocket of the driver's door had caught in his trouser leg. The metal was L-shaped and projected upwards beyond the edge of the side pocket. C used it as a makeshift tool for various tasks. He claimed that he kept it in the pocket of the driver's door because there was nowhere else suitable in the lorry to store it.

[Please note that this approach of the Court of Appeal has been upheld by the House of Lords in Smith v Northants CC [2009] UKHL 27 - judgment handed down on 20 May 2009 after preparation of this bulletin; case comment on that decision will appear in a future bulletin.]

 

 

 

The Court of Appeal has held that where the risk associated with standing on a storage box to reach a high shelf had been identified by the employer and adequate instruction and warning had been given, an employee who stood on such a box and suffered an accident took a risk for which only he, and not his employer, was to blame.

 

The effect of the employer’s evidence was that staff, including the employee here, were instructed to use a "man-riser", portable steps or a forklift truck to gain access to the higher shelves and that they should not stand on a box. The employee himself accepted that he was told to use a man-riser if he could not reach a shelf. The Court of Appeal held that the employer had complied with its duty of care to ensure a safe system of work in relation to access to the upper shelves. Not only was suitable equipment available, but employees were instructed to use that equipment and not to stand on boxes for the purpose. The risk associated with standing on a box had been identified but had been adequately guarded against by the instruction given. Employees might occasionally have stood on boxes, but it was not a common practice and it was not condoned. In standing on a box, the employee took a risk for which only he was to blame. There was no basis for holding the employer liable for the injury which the employee sustained.

Richard Cole