Jakto Transport Ltd. v Derek Hall

A fact-finder must assess credibility after surveying all relevant evidence, including expert evidence capable of providing an important factual context. It is wrong first to reach a view solely from lay evidence and then ask whether the expert evidence requires it to change.

Where an appeal exposes that error, an appellate court may re-evaluate written expert evidence while giving proper weight to the trial judge’s assessment of witnesses seen and heard. Under regulation 5 of the Provision and Use of Work Equipment Regulations 1998, an employer is strictly liable once a worker proves, on the balance of probabilities, that injury was caused by a defect in work equipment.

The respondent, an experienced HGV driver, was injured while tightening wheel nuts with a torque wrench supplied by his employer. He alleged that the wrench made a sudden abnormal movement because of a hidden defect. The employer contended that the wrench had operated normally and that the accident resulted from operator error.

At Sheffield County Court, the judge accepted the respondent’s account, found an unexplained defect in the wrench and held the employer liable under regulation 5 of the Provision and Use of Work Equipment Regulations 1998. Damages of £67,500 were agreed. The employer appealed, principally contending that the judge had assessed credibility before considering the jointly instructed engineer’s evidence.

Appeal dismissed. The court unanimously upheld the finding that the respondent had proved that a defect in the torque wrench caused his accident.

1. Smith LJ held that the trial judge had adopted the wrong method. He made provisional findings from the lay evidence before considering the engineering evidence. A fact-finder must consider expert evidence relevant to how an accident could have occurred when assessing the credibility and reliability of the witnesses. The principle stated in [2005] EWCA Civ 367 applied despite the different factual setting.

2. The error did not require a retrial. The expert evidence was entirely written, so the Court of Appeal could reassess it while giving due weight to the trial judge’s favourable impression of the respondent’s honesty.

3. On that reassessment, the engineer’s evidence left two possible but unlikely explanations: a temporary ratchet defect, potentially caused by dust or grit, or operator error. The absence of any history of accidents caused by operator error, the trial judge’s accepted finding that the handle had been left in an abnormal downward position, and the respondent’s contemporaneous attribution of the incident to slippage supported the defect explanation.

4. The respondent therefore discharged the burden of proving a defect on the balance of probabilities. The occurrence of an accident alone did not establish breach, but the proved defect engaged the employer’s absolute maintenance duty under regulation 5 of the Provision and Use of Work Equipment Regulations 1998.

5. Carnwath LJ agreed with Smith LJ’s conclusion. Pill LJ expressed serious doubts and stated that he would have found for the employer if deciding only from the papers, but he was not prepared to overturn the trial judge’s credibility-based finding. He also agreed that the appeal should be dismissed.

• Court of Appeal (Civil Division): Appeal dismissed; the County Court’s finding of liability was upheld: [2005] EWCA Civ 1327.
• Sheffield County Court: His Honour Judge Robinson found the employer liable for injury caused by a hidden defect in a torque wrench. Damages were subsequently agreed at £67,500.