A worker has appealed against the dismissal of his claim for damages for personal injury.
The claim was brought against his employer following an accident the employee suffered at work, and highlights how important it is that an organisation’s risk assessments adequately identify the risks from the task in hand.
The employee had fallen off the back of a box van or lorry whilst making deliveries. He had lowered the tail lift on the vehicle and shortly afterwards he had stepped backwards, or lost his footing and had fallen approximately one metre to the ground, causing him to strike his head and sustain serious head injuries. A Work Activity Assessment Form (WAF2), had identified working at height and operation of the tail lift as hazards, both of which were associated with a potential problem or harm of fall injuries. They were placed in a high-risk band.
The employee asserted that their employer had breached the Work at Height Regulations SI 2005/735, in particular regulation 4 on organisation and planning of work at height and regulation 6 on the avoidance of risks from work at height. He alleged that measures should have been in place to ensure that the tail lift was always raised if a worker was in the back of the lorry.
The judge found there to be no breaches of these Regulations, and that it would not have been reasonably practicable to raise the tail lift when the back of the lorry was occupied.
The employee submitted that the judge wrongly treated the test of reasonable practicability as involving a simple balancing exercise, rather than one in which a measure was only not reasonably practicable if there was gross disproportion between the quantum of risk and the sacrifice involved in taking that measure.
At appeal, it was discussed that the Work Activity Assessment Form identified the risk of fall injuries from working at height and operation of the tail lift, but it had wrongly assumed there was a safe system of work document in place for the loading of vehicles. The assessment had also identified a "toolbox talk" for safe working with delivery vehicles, yet that was also not in place. This was only implemented after the accident. The risk ought to have been addressed by the employer pre-accident, and failure to do so constituted a breach of the Work at Height Regulations SI 2005/735.
It was also considered whether the previous judge addressed the concept of "reasonable practicality". They concluded that the judge misdirected himself in relation to the test to be applied and wrongly decided that the measure was not reasonably practicable. The risk had been considered by the employer as high and the measure was implemented after the accident. It was also discussed how the claimant had lowered the tail lift and was therefore aware that there was a drop from the back of the vehicle.
The judge allowed the appeal and stated: "I accordingly allow the appeal and give judgment for the Claimant subject to a deduction of 50% for his own contributory negligence".
