Brazier v Dolphin Fairway Ltd.

Permission to appeal may be granted where there is a real prospect of success because the trial judge may have applied the wrong evidential threshold in a negligence claim. Detailed factual or expert evidence is not invariably required to assess foreseeable risk. Evidence that an employee was required to bring a substantial wooden pallet down from a height may itself make the risk of injury sufficiently apparent to raise an arguable error of principle. The Court of Appeal did not determine liability, but held that the proposed challenge should proceed.

The claimant brought a negligence claim against his former employer for a hernia allegedly sustained while lifting a wooden pallet at work. The Liverpool County Court dismissed the claim, holding that there was insufficient evidence of negligence, including no evidence of the pallet’s weight or of the forces and strains involved.

The claimant, acting in person, applied to the Court of Appeal for permission to appeal. The central issue was whether the trial judge had erred in principle by requiring detailed or expert evidence before deciding whether the system of work created a foreseeable risk of injury.

1. Permission granted. Lord Justice Jacob held that the proposed appeal had a real prospect of success.
2. The trial judge may have erred in principle by treating detailed evidence of the pallet’s weight, and expert engineering evidence about the forces and strains involved, as necessary before the safety of the system of work could be assessed.
3. There is a point in a negligence case at which detailed or expert evidence is unnecessary. On the evidence available, an employee had been required to bring a 6-feet by 6-feet wooden pallet down from a stack approximately 6 feet high. The pallet had to be strong enough for considerable loads and use with a fork-lift truck. It was therefore arguable that the system of work itself exposed the employee to a foreseeable risk of injury.
4. Other applications concerning the conduct of the claimant’s solicitors were refused. Any complaint about the manner in which the claim had been conducted was not a matter attributable to the defendant.
5. The appeal was directed to be heard before a two-judge court and listed for two hours. A copy of the judgment was to be supplied to the claimant at public expense, and he was to send a copy to the respondent with the notice of appeal.

• Court of Appeal (Civil Division) — permission to appeal granted in [2005] EWCA Civ 84; the proposed appeal was directed to a two-judge court.
• Liverpool County Court — His Honour Judge Stewart QC dismissed the claimant’s negligence claim on 24 June 2004.