Case Study – Accident at work

Andrew Hesketh from our Trade Union/Personal Injury department was able to successfully conclude a claim for one of our Union clients recently, in spite of an opinion from an expert engineer who was of the view that the Defendant company, the client's employer, should not be held liable for the accident.

The Claimant was a member of Unite the Union and worked for the Defendant company as a Press Setter. He was injured whilst changing a tool on a hydraulic press situated in the Defendant's factory premises.

The tool in question was in two parts, comprising of an upper and a lower part, with pressure plates sat on top of each of these parts. After fixing the tooling in place he was then required to lift the upper part of the tool within the machine as part of the setting process. But, when the upper part of the tool was lifted, the pressure plate from the lower part of the tooling stuck to the upper pressure plate, due to the presence of thin, sticky oil that had been placed on the surface of each.

However, after the upper tooling had been lifted only a short distance the lower pressure plate came loose and fell on to the Claimant's hand causing a nasty injury to his thumb in particular.

Liability for this accident was denied by the Defendant's insurers as they argued that they could not have foreseen that the oil would cause the pressure plates to stick together and, therefore, could not have foreseen that such an accident would occur. This was disputed by the Claimant and so an expert engineer was instructed by both parties to comment upon the issue following a site inspection.

The engineer produced a report in which he supported the Defendant company, stating that unless there had been any previous, similar incidents (for which there was no evidence) he did not see how the Defendant could have foreseen such an accident or assess the level of risk arising from such an accident.

The Defendants were therefore of the view that this evidence meant that the claim could go no further and that they could not be held liable for the injuries sustained by the Claimant.

However, a detailed review of the claim and the relevant Health & Safety legislation in this area led us to form the opinion that, regardless of the engineer's conclusions, the claim should still succeed.

Regulation 12 (1) of the Provision and Use of Work Equipment Regulations 1998 states that "every employer shall take measures to ensure that the exposure of the person using work equipment to any risk to his health or safety from any hazard specified in paragraph (3) is either prevented, or, where that is not reasonably practicable, adequately controlled."

Paragraph 3 goes on to describe one of the hazards referred to above as, "any article or substance falling or being ejected from work equipment".

We were therefore of the view that this regulation posed an absolute duty on the Defendant in this case, which could not be avoided by arguments of foreseeability.

The engineer had stated within his report that the accident could have been prevented by the fitting of a set of sliding brackets, pins or chains, and so we were of the view that this was a measure that could have "adequately controlled" the potential risk, and that Regulation (1) should therefore apply - meaning that the claim could still succeed regardless of the engineer's final conclusions regarding foreseeability.

Court proceedings were therefore issued and EAD were eventually proved to be correct, with the claim eventually being concluded in favour of the Claimant.