PI Brief Update

Lloyd v Arriva Southern Counties Limited - Marcus Weatherby, Pattinson Brewer

06/07/13. This recent liability only decision concerned a young cleaner/driver who was employed by the Defendant bus company who was injured when alighting from a bus that she had been on for the purpose of cleaning it .

The bus itself had been parked up in the engineering bay area . This was normal but meant that the bus was parked in the vicinity of 7 engineering pits where engineering work would be carried out to buses (either for engineering or MOT purposes.)

The Claimant stepped down from the bus and as she did felt a metal spike pierce her work boot and penetrate her foot. Initially she thought nothing of it and brushed it off.

Unfortunately however the wound became infected resulting in her developing necrotising fasciitis in her left foot and ankle. Over the next 24 hours the infection developed to the extent that her foot needed to be extensively debrided to rid her of the infection. Ultimately the condition has led to below knee amputation of the leg.

A split liability trial took place to determine 4 issues:-

1.) Whether the metal spike had entered the Claimant's foot as she described

2.) Whether this was as a result of the breach of duty of the Defendants (either statutory or common law)

3.) Whether the injury resulted in the infection the Claimant subsequently suffered from

4.) Contributory negligence

Breach of duty was pleaded on the basis of :

a.) Breach of common law duty

b.) Breach of Workplace Health Safety and Welfare regulations : Regulation 9 (1) : Cleanliness and Waste Materials : The need to keep the workplace sufficiently clean

Regulation 9(3) : The need to prevent so far as reasonably practicable waste materials accumulating in a workplace except in suitable receptacles

Regulation 17(1) : The need to organise the workplace in such a way that pedestrians and vehicles can circulate in a safe manner.

c.) Breach of the Personal Protective Equipment at work Regulations This was effectively abandoned as no defect was present in the Claimant's boots

d.) Breach of Regulation 3 of the Management of Health and Safety at Work Regulations (Risk assessment and need to identify measures to comply with statute)

The Defendants admitted an infection had occurred but not how it had occurred to which the put the Claimant to strict proof. They stated that it was significant that the Claimant did not report the injury at the time and that when she finally did there were inconsistencies . In any event they stated that her safety boots were entirely adequate and the incident and indeed the risk creating it were not foreseeable. Contributory negligence was alleged.

Witness evidence was heard from the Claimant herself and her co worker who confirmed that she recalled the Claimant shouting out .

The yardman responsible for cleaning the depot and gave evidence to the effect that the engineering area was not generally a priority and was not well cleaned. There were 2 means by which it could have been cleaned

- either the fitters themselves or the yardsman. The yardsman however had been on holiday on the relevant weekend.

When cleaning was left to the fitters the policy was to clean 'as necessary'.

The court also heard from the engineering manager and a worker to the effect that the engineering area was generally well cleaned. Significantly no evidence was adduced as to state of the floor on the day in question however.

The Judge accepted the Claimant's factual version of events . The Claimant had adduced expert evidence from a microbiologist to the effect that the infection was on balance caused by the metal splinter and this was not seriously contested.

In terms of breach the judgement found that :

a.) The failure to carry out a MHSW Regs risk assessment was made out . There was no methodology for cleaning and no detailed instructions to employees and therefore no blueprint for action .

b.) In terms of the WHSW regs There had been a breach of Reg 9(1) in that the area was not sufficiently clean . These regs had to be interpreted in terms of health and safety . There was a breach of 9 (3) . 'Accumulation' had to begin with one item

There was a breach of 17(1) - There was no Defence of reasonable practicability here and because the Claimant was using the throughway to the lavatories and storeroom there was a clear breach.

In addition there was a breach of common law . The injury here was foreseeable because it was a walkway adjacent to an engineering pit that was continuously used on a seven day a week basis . It was foreseeable that waste materials might be left around the edge of the pit.

No deduction was made for contributory negligence.

This is the first known reported case in which a breach of reg 9 of the Workplace Health Safety and Welfare regs has founded civil liability for personal injury .

Marcus Weatherby
Pattinson Brewer

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