A farmer lent his neighbour some equipment when he was away for the weekend. As the neighbour adjusted the machinery prior to use, a spring fractured and a piece flew into his eye.
The Judge at first instance found the Provision and Use of Work Equipment Regulations (PUWER) 1998 did apply to this loan but the accident was a one-off, not reasonably foreseeable, and did not relate to any failure to maintain the machine for identified risks, so the claimant lost.
The Court of Appeal ruled on the two key questions:
Did PUWER apply to such a loan?
Yes – the farmer had control of the equipment under paragraphs 3(3) (b) and 3(4) of the regulations in that he had control of the equipment “to any extent” in connection with his business. This was not a sale where an exemption to liability would apply (Reg 3(5)) or a pure neighbourly loan where no business element to the transaction could be said to exist.
Was there a breach of Regulation 5(1) of the PUWER?
Yes – the Court of Appeal asserted strongly the principle of strict liability under Reg 5 for a defect and it was not to be watered down to a concept of “identified risks” as in Fytche -v- Wincanton Logistics (distinguished) or foreseeability. The machine had failed, was not efficient and that had caused the accident.
Judgement for the Claimant.
Ball -v- Street
Comment: this is a firm restatement of the point of strict liability under PUWER and a refusal to follow the semantics of cases like Fytche to defeat claims:
“The imposition of an absolute duty by the Regulations was designed to render the task of an injured workman easier by simply requiring him to prove that the...machine failed to work efficiently or was not in good repair and that such failure caused the accident” … “it is important to give a proper construction to regulations implemented mainly for the benefit of employees” (LJ Longmore)
This case and Skinner -v- Scottish Ambulance Services, 8 July 2004 (Law Bulletin September 2004, Scottish section) (on the issue of the irrelevance of cost in considering safety) are powerful pro-claimant decisions in equipment cases.
Loss of chance of a more favourable outcome not to be introduced into personal injury claims
A doctor negligently failed to diagnose his patient’s cancer. It was detected a year later. Expert evidence stated that the misdiagnosis had reduced his chance of survival (living more than 10 years) from 42 per cent to 25 per cent.
The House of Lords held the patient could not show on balance of probabilities (51 per cent) that he had suffered injury, such as a year’s extra spread of the cancer before therapy, or to his prospects of survival, so no claim for causation of injury could stand.
Comment: this does not change the law for loss of chance claims for future events; e.g chance of promotion, solicitor’s negligence claims, but states that past facts, such as the consequence of negligent treatment and its outcome, must be decided on the balance of probabilities.
Gregg -v-Scott. House of Lords 27 January 2005.