A recent judgment in an appeal hearing in the High Court considers the liability issues where the Claimant does not know how an accident happened because he sustained a serious head injury. In the matter of Lee Walsh v CP Hart & Sons Ltd, The High Court (on 13 January 2020) decided an appeal in favour of the Claimant, Mr Walsh, who had appealed against a previous decision in the County Court dismissing his claim.

The facts are that on 8 April 2013 Mr Walsh sustained serious head injuries when he fell from the back of a box van whilst delivering goods on behalf of his employer. He is not aware how the accident happened and there were no witnesses to the accident.

Mr Walsh was employed as a driver’s mate and on the day of the accident he was delivering bathroom equipment to a site in London. The delivery driver had parked in a loading bay and Mr Walsh went to the rear of the van to lower the tail lift so that the equipment could be unloaded. The driver and Mr Walsh loaded a pallet onto the tail lift by using a pallet pump truck which is carried inside the lorry. The pallet was lowered to the ground and taken onto the site by the driver. Mr Walsh remained inside the van near the rear door. There was then a loud bang and Mr Walsh was found lying on the ground having fallen out of the back of the van. He hit his head on the ground and suffered a serious head injury and has no recollection of what or how the accident happened.

In order to determine what had likely happened and how the accident was caused the County Court Judge heard evidence about the work systems in place and the work taking place prior to the accident as well as evidence from people who were in the vicinity, but had not actually witnessed the accident. He decided from the evidence available that Mr Walsh either stepped back from inside the van or otherwise lost his footing and fell out the back of the van and onto the ground striking his head whilst the tail lift was in the lowered position. On these facts the Judge decided that the Defendant Company were not in breach of their duty of care that they owed the Claimant because Mr Walsh had had sufficient work place training and was aware of the risks in carrying out the work he was undertaking. The Company had carried out risk assessments. Mr Walsh had not identified steps he says the Company should have taken to reduce or eliminate the risk, or that the risk assessments were unsatisfactory. He had not provided evidence to explain how any measures would have reduced the risk. The claim was dismissed and Mr Walsh appealed to the High Court.

At the appeal the High Court Judge considered the relevant Regulations which had been pleaded by the Claimant in support of his claim. These included The Work at Height Regulations 2005 which provided that (section 6(3)) where work is carried out at height the employer shall take suitable and sufficient measures to prevent, so far as reasonable practicable, any person falling a distance liable to cause personal injury; and (section 6(5)) that if the risk of falling cannot be eliminated then the employer shall so far as reasonably practicable provide sufficient work equipment to minimise the distance and consequences of a fall.

The High Court Judge reviewed the evidence available at the original trial. He looked at the risk assessments and considered that risk assessment in place before the accident was inadequate, it did not identify the risk of falling from the van bed whereas a proper assessment of the risk should have identified it as high. (A post accident risk assessment had identified this as a high risk given the potential severity of the injuries to Mr Walsh). Following on from this it then had to be considered whether the safety measures in place at the time were “reasonably practicable“. In this case it would not have been an unreasonably practicable measure by the Company to direct its employees to ensure that the tail gate was up whilst they working in the back of the van (the tail lift was down when Mr Walsh had his accident). Taking this into account the accident could have been avoided and The High Court considered that there had a breach of duty by the Defendant Company.

The Claimant Mr Walsh should therefore succeed in his appeal. The level of compensation was reduced by 50% because Mr Walsh’s actions contributed towards the cause of the accident and the Judge decided that there should be some deduction to reflect his contributory negligence.