In a recent High Court decision concerning an accident at work, the claimant, Gary Chisholm, has succeeded in establishing liability for an accident in which he was involved whilst working for D & R Hankins (Manea) Limited for injuries he sustained on 11th February 2016 whilst operating a tipper truck. A trial on liability took place at the High Court ([2018] EWHC 3407 (QB)) and judgment was delivered 10th December 2018. Compensation is to be assessed at a later date as the trial was only concerned with the issue of liability. Mr Chisholm was found to be partly to blame for the accident and his compensation will be reduced by 25% to take in to account his contributory negligence.

The accident occurred when Mr Chisholm was cleaning out the trailer of his tipper truck after delivering a load of wheat. He had parked his truck in a layby at the side of a road, exited the cab and started raising the trailer. He went to the back of the trailer to open the tailboard so that any remnants within the trailer could fall out. Unfortunately he did not realise that by raising the trailer it had come into contact with a high voltage overhead power line (OHPL). He was electrocuted.

The defendant’s said that their operatives were forbidden to use the tipping function for the cleaning of the trailer and that if this system had been adopted by Mr Chisholm then the accident would not have happened. However in practice Mr Chisholm and a number of other operatives said that they commonly cleaned the trailer by using the tipping function. The defendant’s had not carried out a risk assessment associated with cleaning out trailers in this way whilst parked on the highway. The Judge held that it was an activity that gave rise to risk and it was reasonably foreseeable that drivers would tip their vehicles to assist with the cleaning process. There had been an assessment of the risks associated with tipping, but not specifically for cleaning out trailers whilst parked on the highway. There is a general commonly law obligation that in order to undertake a reliable risk assessment the assessor is obliged to seek out knowledge of risks which are not themselves obvious. The Judge decided that there had not been a sufficient assessment of the risks and the need to instruct drivers to maintain an exclusion zone from overhead power lines when tipping. This was a breach of duty and there was an unsafe system of work. There would have been a safe system if drivers had been instructed not to tip their vehicles when cleaning and if this instruction had been enforced. However this was not done, at least in relation to Mr Chisholm. These breaches were the cause of the accident.

Mr Chisholm was held to be partly to blame. He knew he needed to check for obstructions, including OHPL’s, when tipping. If he had checked he would have seen the OHPL’s and would have chosen a different place to park or would have manoeuvred his truck so that it was well clear of the OHPL’s. As far as Mr Chisholm’s blameworthiness was concerned his failure was a momentary lack of concentration. It was at the end of a 12 hour working day.  The defendant’s however had every opportunity over a period of years to risk assess and ensure a safe system of work and were therefore more blameworthy. Mr Chisholm’s compensation is to reduced by 25% to reflect his contributory negligence in not checking that the area was safe before tipping the trailer.