The claimant was a home carer at the patient’s own home. The patient was very heavy and paralysed. The claimant and her colleague used a hoist to move him from his wheelchair into bed. They both put the hoist straps on the patient. The colleague then went to talk to the patient’s wife.
The claimant then continued with the manoeuvre while thinking that her colleague would return. She did not. The claimant had continued for 20 to 30 seconds and the patient was becoming distressed so the claimant decided to finish the job. She pushed the hoist over the carpet to position it over the bed as she reached the bed, the hoist’s legs caught on wires hanging down from the bed and she jarred her shoulder.
The hoist was judged suitable work equipment under PUWER 98. However, the defendant could have reduced the risk under Manual Handling Operations Regulations 1992 by reducing the distance between the wheelchair and the bed to minimise the distance the hoist had to be pushed. The claimant should also have been trained properly that two people were required at all times to move the hoist.
Judgement for the Claimant.
Rotheram CC, 5 September 2007
Time limit on defective products
In 1992, when the claimant was one year old, he was vaccinated. Afterwards he suffered brain damage. He claimed that the brain damage was caused by the vaccine. In 2000 he commenced an action against the first defendant (D1) because his solicitors believed that D1 were the manufacturers or producers of the vaccine. It was accepted that the second defendants (D2) thought this was a genuine mistake. The claimant applied to substitute D2 for D1 as defendant on the basis that D2 was the manufacturer.
The application was made in 2003 after the expiry of a 10-year period for enforcing rights conferred by Directive 85/374 on liability for defective products, under Limitation Act 1980 section 11A(3). The Judge allowed the application for the Limitation Act under section 35.
D2 argued that section 35 of the Act was not applicable where the time limit that had expired was the 10-year final cut off date under Article 11 of the Directive. Also D2 argued that, even though under a mistake at the time the action was commenced, the claimant had not been under a mistake about the identity of the party against whom he was intending to proceed at the time the limitation period expired and that, in the circumstances, the substitution of the new party after the expiry of the limitation period could not be regarded as “necessary” for the purposes of section 35(5).
The Court of Appeal held that section 35 of the Act was capable of applying where the 10-year period in the directive had expired. Where the new party was to be substituted for a party whose name had been given in a claim in the original action by mistake for the new parties name, substitution was to be regarded as necessary for the determination of the original action.
O’Byrne -v- Aventis Pasteur SA (2007) EWCA Civ 9.93.