Chisholm v D & R Hankins (Manea) Ltd

An employer must adequately assess foreseeable work risks, including non-obvious risks, and implement a safe system of work. For tipping near overhead power lines, avoiding physical contact alone is insufficient: the employer must address electrical arcing and provide an appropriate exclusion zone. Contributory negligence depends on the claimant’s share of responsibility for the damage, assessed by causal potency and blameworthiness.

The claimant suffered severe injuries when his raised tipper trailer touched, or came sufficiently close to, overhead power lines while he was cleaning it in a roadside layby. He alleged that his employer had failed to assess the risks, provide adequate training and implement a safe system of work. The employer contended that tipping during cleaning was prohibited and that the claimant had caused the accident by failing to observe an obvious hazard.

The court determined primary liability and contributory negligence as preliminary issues.

1. The claim succeeded. The employer failed to assess specifically the risks of cleaning trailers on the highway and tipping near overhead power lines. Its assessment addressed contact with power lines but not the danger of close proximity and electrical arcing.
2. The employer had not proved that the claimant was instructed not to tip while cleaning. A safe system required either an enforced prohibition or carefully controlled tipping. A 10-metre horizontal exclusion zone was practicable; alternatively, properly assessed voltage-specific distances could be used, with 3 metres appropriate for the 11kV lines concerned.
3. The claimant had been told to check for obstructions, but not instructed about exclusion distances, arcing or how to conduct the check. These breaches materially caused the accident. The claim based on the detented PTO failed: even assuming regulatory non-compliance, the PTO was not shown to breach the employer’s common-law duty or materially cause the accident.
4. Regulation 4(3) of the Electricity at Work Regulations 1989 was consistent with the common-law duty, but section 69(3) of the Enterprise and Regulatory Reform Act 2013 prevented a damages claim based solely on breach of that regulation.
5. The claimant’s failure to check for obstructions amounted to contributory negligence. Applying Jackson v Murray [2015] UKSC 5, the court assessed causal potency and blameworthiness. Damages were reduced by 25 per cent.