Baxter v Barnes )t/a We Barnes Tree Surgeons)

Goods hired for a specialised purpose must be of satisfactory quality, judged by what a reasonable person would regard as satisfactory in all the circumstances. Equipment may be unsuitable even if it is commonly used for less demanding applications. Where a machine is designed for rough, sloping or uneven ground, safety equipment supplied with it must adequately address foreseeable lateral movement and instability during normal operation. A claimant must still prove causation on the balance of probabilities. The destruction of potentially relevant evidence does not automatically justify an adverse inference where the court can determine the issues from the available evidence.

The claimant, an arborist, hired a tracked mobile elevated work platform from the defendant for tree surgery. The platform toppled while the claimant and an employee were working from its basket, causing serious injuries. The claimant alleged breach of the implied term as to satisfactory quality under the Supply of Goods & Services Act 1982 and negligence in the defendant’s instructions and provision of the equipment.

The defendant contended that the platform had been incorrectly set up on sloping ground and that the accident resulted from operator error. The liability issues were ordered to be tried separately from quantum. The central questions were whether the platform and its spreader plates were suitable for the intended use, whether the safety systems failed, and whether the claimant was contributorily negligent.

1. Disposition. Judgment was entered for the claimant on the contractual claim. The claim in negligence was not established, and no issue of contributory negligence arose.
2. Under section 9(2) of the Supply of Goods & Services Act 1982, goods supplied under a bailment contract must be of satisfactory quality. The relevant standard is what a reasonable person would regard as satisfactory, having regard to the description, consideration and all the circumstances.
3. The platform was designed for use on rough or soft terrain and on slopes and uneven surfaces. The supplied hard plastic spreader plates were suitable for a more rigid platform used on level ground, but were unsuitable for this platform because its outriggers could be subjected to lateral forces and move off an unsecured plate during normal operation.
4. The court accepted that the platform had been set up in accordance with the defendant’s instructions. The second location was not itself unsuitable, and the slight deviation from exact levelling did not explain the accident. The accident was caused by the foot of an outrigger sliding on its plate, destabilising and toppling the platform.
5. The platform should have been supplied with plates attached to the outrigger feet, or shaped or recessed so as to prevent the feet slipping off. The experts agreed that securing the plates would have prevented the accident. The platform therefore failed to meet the statutory standard of satisfactory quality.
6. The evidence also established that no warning device or cut-out operated before the topple. The court declined to draw an adverse inference from the defendant’s disposal of the platform, applying the approach in Malhotra v Dhawan and resolving the issues on the evidence available.

First-instance liability judgment. The judgment states that liability was tried in advance of the assessment of damages.