Claimant’s appeal against dismissal of his claim fails; Court of Appeal finds that claimant was solely responsible for accident arising out of a fall.
At the time of the accident Kuehne employed Mr Ammah in the despatch department where his job was to get items off shelves. On 11 November 2003 he was required to collect a pamphlet from a box just out of his reach. He jumped to try to reach it, without success. He then noticed a plastic box and stood on this. He was reaching for the pamphlet when the box moved under him and he fell, breaking his ankle. He contended that Kuehne should not have told him to use the boxes in this way. Kuehne admitted that the use of the box was unsafe but said that Mr Ammah had failed to follow available and approved methods of accessing upper shelves.
Held: Kuehne had complied with its duty of care to ensure a safe system of work in relation to access to the upper shelves. Not only was suitable equipment available in the form of a man-riser, forklift truck or steps, but employees were also instructed to use that equipment and not to stand on boxes for the purpose. The risk associated with standing on a box had not been identified but had been adequately guarded against by the instructions given. In standing on a box, Mr Ammah took a risk for which only he was to blame.
Comment: This case is a useful reminder that employers’ liability claims can be successfully defended. The Defendant was able to show that a safe system of work was in place. Although there was some debate about the instructions given to employees it was held that employees had been properly instructed.
In this case the Defendant was able to avoid any liability for the accident. However, even if a full defence may not be achieved, defendants and their insurers should ensure that allegations of contributory negligence are raised, which can result in significant reductions. For example in Egan v Central Manchester and Manchester Children's University Hospitals NHS Trust (see below) a finding of 50% contributory negligence was achieved.