In the recent case of Johnson v National Platforms Limited (County Court in Sunderland), the Claimant brought a claim for damages against his employer, National Platforms Limited in respect of injuries sustained in a workplace accident.

On the day of the accident the Claimant, an experienced platform operator, along with two others were within a cage on the platform working at a height of approximately 20 metres. As the Claimant began to rotate the cage, there was a loud bang and the cage dropped to one side. It was later determined that this had happened due to the failure of the rotator bolt in the cage rotator assembly.

In the proceedings the Claimant alleged breach of a number of regulations, namely:

• the Management of Health and Safety at Work Regulations 1999;
• the Personal Protective Equipment at Work Regulations 1992;
• the Lifting Operations and Lifting Equipment Regulations 1998;
• the Provision and Use of Work Equipment Regulations 1998; and
• the Work at Height Regulations 2005.

A breach of the Employers Liability (Defective Equipment) Act 1969 (the 1969 Act) was also alleged. Unusually, no oral evidence was called by either party.

The Judge (Deputy District Judge DG Morgan MBE) rapidly disposed of the alleged breaches of the Regulations which, as the judge put it, “were not pursued [by the Claimant] with any great gusto”. The reason was a simple one: s.69 of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) operates in such a way that for accidents occurring on or after 1 October 2013 a breach of health and safety regulations made under the Health & Safety at Work Act 1974 (which these regulations were) does not give rise to any civil liability.

The real question for the court was whether the 1969 Act applied and whether there was “fault” on the part of the Defendant. Section 1(1) of the 1969 Act provides:

1. Where after the commencement of this Act
   1. An employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of his employer’s business; and
   2. The defect is attributable wholly or partly to the fault of a third party (whether identified or not)’

The injury shall be deemed to be also attributable to negligence on the part of the employer

Section 1(3) of the 1969 Act defines ‘fault’ as follows:

‘fault’ means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to damages in Scotland

The Defendant’s case was that there was no evidence as to what the defect in the bolt was attributable to and there was no evidence that anyone (including the manufacturer) was guilty of ‘fault’ as defined by the 1969 Act. The Claimant’s position was that if “fault” had been established on a prima facie basis then it was for the Defendant to rebut that position.

The judge rejected that argument stating that “It is for the Claimant to satisfy the court that there is fault and the test that is to be applied is the standard test in civil proceedings i.e. upon the balance of probability taking into account all of the evidence before the court and submissions made on behalf of all parties”.

It was an agreed matter that there was “excessive corrosion” to the bolt which had led to it sheering, allowing the lock nut to work its way out of the cage rotator assembly. The court, from the evidence provided to it by experts, accident investigators and manufacturers found that “the principal cause of the corrosion of the rotator bolt was that there was a chemical reaction between the two metals used for the bolt and the bushing causing the bolt to sheer and giving rise to the rotator assembly failing”.

In moving on to consider the issue of liability the judge posed, and answered, two questions:

•  In answer to the question ‘Should that have happened under normal circumstances?’ the answer is unequivocally ‘No’.
•  Why did it happen? Again it is abundantly clear to me that the specification of a chrome bolt to fit into a stainless steel bushing must have been at the time of manufacture whether by Ruthmann or by a third party engaged by them to design the machine – it matters not because section 1 (1)(b) provides.......... ’The defect is attributable wholly or partly to the fault of a third party (whether identified or not).’

The judge therefore found that the use/specification of metals that were likely to corrode by Ruthmann (the manufacturer) or others was a ‘fault’ for the purposes of section 1(3) of the 1969 Act and on the basis of those findings the Defendant was caught by the provisions of section 1(1) of the 1969 Act and consequently liable to the Claimant.

Whilst this is a first instance decision, and is not binding on the parties, the case does nevertheless provide a timely reminder to Defendant’s that notwithstanding the provisions of S69 ERRA 2013, there is still, in certain circumstances, an opportunity for the Claimant to succeed in establishing strict liability against an employer. It should be noted that the 1969 Act does not in itself impose statutory duties (which would be captured by the provisions of S69 ERRA 2013), but instead provides a framework to enable an employer to be deemed to be negligent for the actions of another, where certain conditions are met. Practitioners should therefore be alive to the presence of the Act and undertake appropriate investigations to understand whether or not a defect in an item of work equipment could be deemed to be the “fault” of a third party, which would then impose negligence upon the employer. In such circumstances practitioners should also investigate the opportunities available to seek an indemnity or contribution from that third party where appropriate.