WRULD Claims heard in Courts in England, Scotland and Wales

Hearing(s) - Warlow -v- Compass Group UK & Ireland Ltd

Date	Court	Claimant(s)	Task	Injury	Judgment for
22 Dec 2008	Swansea County	Warlow	Handling road traffic cones	Rupture of tendon	Defendant

While this case is of no particular consequence, other than to the parties involved, it is worthy of note for several reasons. At trial, the Claimant acted as a Litigant in Person and nearly succeeded in persuading the Court that the Defendant was responsible for the very unusual injury, a ruptured tendon in his right bicep, he sustained when lifting a traffic cone weighing about 10kg into the back of a pick-up truck, which many would consider to be an innocuous task.

The Claimant was employed by the Defendant as a Security Officer at the Texaco plant in Milford Haven. Soon after the start of his shift on the 7th August 2004, the Claimant was directed by his shift supervisor to collect three cones of the sort that are used to mark out road works. The Claimant had never previously been asked to move cones. The Claimant drove to collect the cones in a Toyota Hilux pick-up truck. This was an off-road vehicle with high suspension and four-wheel drive. The body of the truck, to the rear of the cab, was covered with a tarpaulin and had a tail-gate. If the tail-gate was lowered, the floor of the pick-up part of the vehicle was just below the Claimant's waist: the Claimant is about 6' 2" tall.

The Claimant drove the truck to the position where the cones were to be collected. There were three cones in all, each weighing a little under 10kg. The Claimant said he rolled back the tarpaulin cover about half-way along the pick-up part of the truck towards the cab. In the truck at that time were a spare wheel and tow rope which were positioned towards the rear of the truck close to the tail-gate. The Claimant said the cones were sitting on their base. He tilted the cone with his left hand, putting his right hand beneath the base and holding the top with his left. He then lifted the cone to about waist height. From that position he lifted the base of the cone with his right hand to a point at about his upper chest or shoulder level and extended his right arm in order to lower the base on to the truck beyond the wheel and on top of the tow rope. His evidence was that he leaned over the tail-gate and over the wheel in order to place the cone beyond the spare wheel, possibly on top of the tow rope. The Claimant said he did not lower the tail-gate of the truck before putting the cones into the vehicle because the tail-gate was damaged and could not be lowered. He said he used precisely the same manoeuvre to place the second cone into the truck, and when placing the third cone he experienced pain in his right upper arm above the elbow. He had in fact ruptured the tendon of his right bicep.

The two experienced Consultant Orthopaedic Surgeons who gave evidence agreed that the injury sustained by the Claimant was very unusual. Between them the medical experts had about sixty years of experience of orthopaedic injuries, but neither had seen more than two such injuries. In the opinion of both orthopaedic experts, the weight of the cone, at a little under 10kg, was not the sort of weight that might be expected to place force on the biceps muscle so as to rupture the tendon. The area of dispute between them related to the possibility that the Claimant, who was described as a fit young man, had some underlying predisposition to this injury. HH Judge Vosper QC rejected the contention that the Claimant had some underlying vulnerability and found that the Claimant did suffer his unusual injury in the course of the act of lifting the third cone into the pick-up truck as he had described. However, to succeed, the Claimant still had to prove that the Defendant's negligence or breach of statutory duty caused or materially contributed to his unusual injury.

In the opening paragraph of his Judgment, HH Judge Vosper QC states:

This is in some ways an unsatisfactory case. The claimant, who has appeared in person at the trial, though was represented by solicitors until about two weeks before the trial, has pleaded his case on breaches of the Manual Handling Operations Regulations 1992 and in negligence. He complains that he was not given proper manual handling instructions. He declines to make any complaint about the equipment with which he was provided, though in some ways it seems to me that he may in that respect be ignoring the main point in the case.

HH Judge Vosper QC returns to this theme later in the Judgment when he says:

....the defective tail-gate formed no part of the claimant's case at all until June of 2008 and still is not part of his pleaded case. Those points show that the defective tail-gate was not a factor in the claimant's mind as being causative of his injury. As I have said, the claimant is now representing himself but was represented by solicitors until about two weeks before the trial. Those solicitors have made no application to amend the pleadings, after June 2008 and before they ceased to act, to rely upon the defective tail-gate as a causative factor in the claimant's injury. I asked the claimant at the conclusion of the evidence whether he wanted to rely upon the defective tail-gate, with a view to finding out whether or not he wanted to amend his pleadings, but he said that he did not wish to rely upon the tail-gate and that his complaint was not of defective equipment but of a lack of training. So it seems to me that even if I find that the tail-gate was defective, I am not being asked to base a finding of liability against the defendants on that fact.

I find this a difficult and unsatisfactory situation and I wonder if, had the claimant been represented by counsel at trial, his counsel would have taken that stance. Possibly there would have been an application to amend the Particulars of Claim with, of course, as a likely consequence, an adjournment of the trial and costs implications for the claimant, but no such application has been made. I cannot act as the advocate for the claimant, I have to do what is just also for the defendants. As ...... counsel for the defendants points out the case the defendants are meeting does not involve an allegation based on a defective tail-gate.

HH Judge Vosper QC did in fact find that the tail-gate was damaged and could not be lowered, but then says:

I should stress, however, that that is a finding which I make on the evidence as it has been adduced in the course of this trial. I apprehend that had the defective tail-gate been a point upon which the claimant was relying as part of his case, then the defendants' investigation of that allegation would have involved further evidence than the evidence that I have heard in this trial. I also have to accept it seems to me, however, that the finding that the tail-gate was damaged does not of itself entitle the claimant to judgment against the defendants on the case which he is advancing. He must show that some lack of training caused or materially contributed to his injury.

Having considered the evidence relating to the case the Claimant was advancing, HH Judge Vosper QC found that there was no mechanical means of carrying out the job that the claimant was required to carry out and, therefore, no breach of Regulation 4(1)(a) of the Manual Handling Operations Regulations. However, he did find the Defendant in breach of Regulation 4(1)(b)(i) of the Manual Handling Operations Regulations in failing to undertake a detailed risk assessment of the manual handling the Claimant was required to undertake.

HH Judge Vosper QC then considered what the outcome of such an assessment, which would not have been directed solely to the act of lifting the cones but would have included it, would have been so far as lifting the cones was concerned. He concluded that lifting the cones in the way the Claimant lifted them, but with the tail-gate lowered, presented no significant risk of injury, in a legal sense, and that the assessment, if carried out, would have resulted in no more than an instruction to employees to ensure that they lowered the tail-gate before putting cones into the vehicle. However, the Claimant still had to prove that if that instruction had been issued it would have prevented his injury: that if he had received that instruction he would not have done what he did. HH Judge Vosper QC went on to find that on the Claimant's own evidence he failed to prove that any instruction would have caused him to do anything differently and thereby have avoided his injury.

HH Judge Vosper QC concluded his Judgment by saying:

It might have been that the claimant would have succeeded in showing that the vehicle was a piece of work equipment which had not been maintained in efficient working order but he does not seek to say that. Had he put his case in that way then no doubt the defendants would have adduced more evidence relating to this part of his claim. I am not making a finding that the case based upon a defective tail-gate would necessarily have succeeded, but on the claimant's case, as advanced before me, that he should have been given instructions which he was not given and that those instructions would have prevented his sustaining the injury which he did, I find that his case must fail. None of the particulars made out in the Particulars of Claim is proved to have been causative of the injury which he sustained. For those reasons, therefore, there must be judgment for the defendants.

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Last updated: 16/10/2009