Andrew Carr v Brands Transport Limited

The claimant, who was the sole director and an employee of Brands Transport Ltd, brought a personal injury claim after falling from the top deck of a car transporter when an upper-deck safety guard pillar failed due to corrosion. The court held that the claimant was an employee and that Brands owed him a non-delegable common law duty of care informed by the health and safety regulatory framework (notably LOLER, PUWER and the Working at Height Regulations), despite s 47 of the Health and Safety at Work etc. Act 1974 confining direct statutory causes of action. The external transport manager, engaged as an independent contractor, was found negligent for failing to ensure that a required LOLER thorough examination date was entered on the maintenance planner and for not familiarising himself with the manufacturer’s guidance; that negligence caused the accident. Brands was therefore liable for the claimant’s injuries on the basis of its non-delegable duty and under the Employers’ Liability (Defective Equipment) Act 1969 s 1. The claimant was found to be 40% contributorily negligent for not ensuring the LOLER inspection was carried out. Brands’ separate claim against Trax (Coventry) Limited for contribution/indemnity was dismissed.

The claimant, Andrew Carr, was seriously injured when a corroded guard pillar on a double-decker car transporter gave way and he fell from a height. The transporter was owned by Brands Transport Ltd, a company of which the claimant was sole director and 80% shareholder; he was paid a salary and was found by the court to be an employee as well as a director. Brands engaged an external transport manager, Mr Sippitts, to advise on regulatory compliance and to maintain a maintenance planner (via a Google Calendar). The vehicle had earlier LOLER (thorough examination) certification dated 5 July 2016 with the next examination listed as 4 July 2017, but no timely LOLER reg 9 inspection took place and the court found on the balance of probabilities that a timely reg 9 LOLER inspection would have revealed the corroded pillar and prevented the accident.

Nature of the claim / relief sought:

• The claimant sued Brands in negligence for personal injury.
• Brands brought a Part 20 claim against Trax (Coventry) Limited for contribution/indemnity in the event Brands were found liable.

Issues framed by the court:

• Whether the claimant was an employee of Brands as well as its sole director.
• Whether Brands owed a non-delegable duty of care to the claimant such that it would be liable for the acts or omissions of its external transport manager.
• Whether the Brumder principle (that a sole-director claimant cannot recover where he alone caused the employer’s breach) defeated the claim.
• Whether the external transport manager was in a relationship analogous to employment so as to render Brands vicariously liable.
• Whether Trax’s inspections extended to the upper-deck safety rails and whether Trax was negligent.
• Whether the claimant was contributorily negligent and, if so, to what extent.

Court’s reasoning and disposition:

The court held the claimant was an employee (PAYE, National Insurance, employee insurance, unsigned but genuine employment contract, conduct consistent with employment). Brands therefore owed the claimant the common law duties of an employer to provide a safe system of work and safe equipment. The health and safety regulations (LOLER, PUWER, WHR) were relevant to defining the scope of that duty even though s 47 HSW Act 1974 (as amended) restricts direct statutory causes of action.

The court found that Mr Sippitts had accepted duties in the transport-manager declaration (TM1) including ensuring a maintenance planner with preventative maintenance dates at least six months in advance and ensuring vehicles were made available for statutory testing. He knew a LOLER inspection was necessary and that, at best, there was uncertainty whether inspections were required every six or twelve months. Despite that, he omitted to record the LOLER inspection due date on the Google Calendar maintenance planner and did not obtain or study the manufacturer’s driver manual directing daily checks of handrails. The judge concluded that those omissions breached the care required of a reasonably competent transport manager and that, on the balance of probabilities, entry of the LOLER date and/or adequate inspection would have led to the defect being identified and the accident avoided.

Applying Woodland and related authorities, the court held an employer’s duty to provide a safe system of work is non-delegable and therefore Brands was liable for the transport manager’s failings even though he was an independent contractor. The court distinguished Brumder: the claimant’s failings were not a total abrogation of health and safety responsibility and were not co-extensive with Brands’ breach arising from the transport manager’s negligence, so Brumder did not bar recovery. The alternative submission that the transport manager was analogous to an employee (to create vicarious liability) failed because he ran an independent portfolio practice and was not under the requisite control. The Employers’ Liability (Defective Equipment) Act 1969 s 1 also applied because the claimant was injured by defective equipment provided by his employer and the defect was attributable in part to a third party (the transport manager).

The court apportioned responsibility, finding joint failure: the claimant was 40% contributorily negligent for not ensuring the LOLER inspection was done; Brands (via the transport manager’s negligence) bore the remaining 60%. Brands’ separate claim against Trax failed because Trax’s contractual inspections were limited to roadworthiness checks from ground level and did not include the upper-deck guardrail LOLER work; Trax did not undertake or purport to undertake LOLER inspections of the upper deck in the circumstances of this case.

Judgment for the Claimant. The court found the claimant to be an employee and that Brands owed him a non-delegable duty of care which was breached because its external transport manager failed to act with reasonable care and skill (notably by omitting to record and procure the overdue LOLER inspection and by not consulting manufacturer guidance). That negligence caused the accident. Brands was liable (also under s 1 Employers’ Liability (Defective Equipment) Act 1969). The claimant was 40% contributorily negligent. Brands’ claim against Trax for contribution/indemnity was dismissed because Trax’s inspections did not encompass the upper-deck LOLER work.