Where the Claimant was found to have been injured by a failure to clear mud, liability was split between the main contractor and ground works sub-contractor (Swain v Geoffrey Osborne Ltd).

Swain v Geoffrey Osborne Ltd and PJ Brown LTD
[2010] EWHC 1108 (QB)

A subcontractor on a building site was mainly responsible for personal injuries sustained by a lorry driver who slipped near to the site due to a lack of an adequate system being in place to ensure that the area was kept clear of mud. However, the main contractor also had to bear some responsibility for not ensuring that such a system was put in place and implemented. The driver was 25 per cent contributorily negligent as he should have taken more care when walking on the muddy surface.

The court was required to determine whether the first defendant contractor (G) and the second defendant subcontractor (P) were liable for personal injuries sustained by the claimant lorry driver (S) in an accident near to a building site.

Background

The Claimant was injured when visiting a construction site. D1 was the main contractor for the works being carried out on the site and D2 the ground works sub-contractor. During the initial work on site involving decontamination or "remediation" work, a washing machine been used to wash the wheels of lorries before they left the site, but it was removed 5 weeks before the accident. The remediation was completed and D2 assumed full responsibility for ground-works that continued on the site. The Claimant drove an articulated lorry to the site but, he said, he was unable to manoeuvre through the entrance so he decided to get out to look at the lorry's position. His case was that he stepped down on to a footway opposite the entrance, walked a couple of paces and then slipped due to the muddy, slippery surface, sustaining a serious ankle injury.

D1 and D2 alleged that (1) he had in fact injured himself jumping down from his cab and (2) the pavement was not in a hazardous condition. The Defendants relied on entries in medical records which referred to jumping from the cab and expert evidence that the injury was not compatible with a mere slip. They also called evidence to say that the pavement was not slippery.

Primary liability

The Judge found that the Claimant had fallen as he alleged. Though there were inconsistent entries in the records, the contemporaneous ambulance record did refer to stepping down and taking two steps. Photographs showing the Claimant’s position were more consistent with his version of events and the expert evidence on causation was not conclusive. The Claimant admitted he may have said he "jumped" down but the Judge accepted he had not meant it literally.

It was clear to the Judge that the photographs taken immediately post accident demonstrated a potentially slippery surface, comprising a watery substance with earth or mud in it. It was a wet day and there was clearly a sheen caused by a wet surface, the sheen being smudged by obvious thin muddy deposits. He did not accept the evidence of the local authority Development Control Officer, who had inspected the site and surrounds on the morning of the accident and found them to be clean, who said that the photos showed "no more than liquid water that is coloured or muddy".

It followed that the Claimant had established that he slipped on a surface that gave rise to an unreasonable risk of slipping, caused by a failure of the system in place adequately to ensure that the footway was kept clear of mud. The primary cause was a failure to ensure that wheels were washed before any lorry left the site and then, secondarily, a failure to check the situation effectively thereafter. The Defendants were thus liable but the Claimant had to share some blame. He was obliged to take particular care in walking around the open cab door given the surface onto which he had alighted and should have taken it a little more slowly. He was found 25% contributorily negligent.

Apportionment between Defendants

D2 had day to day responsibility for the operations on site, although D1 had an overarching supervisory responsibility. D1 had substantially discharged its responsibility by contracting with the D2, a reputable contractor known to D1, to undertake the implementation of safety measures. However, the finding that the steps taken to prevent mud getting onto the road and the footway were inadequate on the day in question was probably a reflection of the fact that less attention was paid to the need to do so after the remediation period had ended. Because of its continuing supervisory role, D1 must bear some measure of responsibility for not ensuring that the D2 put in place and implemented a satisfactory system. The Judge was not, in fact, required to apportion liability but would have placed the greater blame with D2.

The Judge took the view that the photographs showed a hazardous surface and was not persuaded to the otherwise by contrary witness evidence, even from an independent source such as the local authority officer. The Defendants clearly thought that the photographs were not damning. It is a shame they cannot be annexed to the judgment so we can all form a view!

The case demonstrates again that, where the Judge forms a favourable view of the Claimant under cross-examination, he is likely to succeed even where there is a quantity of inconsistent, if not contradictory, evidence. On the up side, notwithstanding the findings of fact as regards the hazardous nature of the surface, the Judge accepted that the accident could have been avoided had the Claimant taken greater care so made a finding of contributory negligence. Where there is clear evidence of a hazardous surface, the case can be quoted as support for a deduction for contributory negligence.