Euan Lawrence Cavell v Centaur Construction Ltd

In a workplace injury claim, the claimant must prove breach of the duty to provide a safe system of work on the balance of probabilities. Competing accounts should be assessed against documents, objective facts, consistency, probabilities and motivation; confidence, demeanour and witness numbers are not determinative. Where a worker uses a dangerous shortcut because a superior instructed or demonstrated it, the employer may be liable for the resulting injury. On the facts, the shortcut was taught or directed by a superior, the claimant was not fundamentally dishonest, and no contributory negligence arose.

The claimant was employed by Hudson Administration Services and worked as a subcontracted groundworker for the defendant construction company. On 2 September 2021, he was run over by a dumper truck after alighting without applying the handbrake, leaving the engine running and bypassing the seatbelt safety mechanism.

The claimant alleged that Andrew Crick, his superior on site, had instructed or demonstrated this unsafe shortcut. The defendant contended that the claimant had adopted it independently and contrary to workplace guidance. The defendant also alleged fundamental dishonesty. Quantum was settled before trial, leaving liability as the central issue. The claim was brought in common-law negligence and under the Construction Regulations 2015.

Liability and evidence

1. Burden and standard. The claimant had to prove breach of the duty of care on the balance of probabilities. The burden of proving alleged fundamental dishonesty also lay on the defendant.
2. Assessment of evidence. The court applied the guidance in Gestmin SGPA S.A. v Credit Suisse (UK) Ltd [2013] EWCH 3560 (comm); [2020] 1 C.L.C. 428 and Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). Memory was treated as fallible and affected by litigation. The court considered contemporaneous documents, objective facts, consistency, motivation, corroboration, cross-examination and overall probabilities. Demeanour and the number of witnesses were not treated as decisive.
3. Factual findings. It was extremely unlikely that the claimant had devised the shortcut himself. He had no financial incentive to save time, knew the safe procedure and had no apparent reason to adopt the three-stage shortcut unless it was common practice and had been instructed or demonstrated by a superior. The claimant was found credible. The court concluded that Andrew Crick had probably told or shown him how to use it.
4. Near-miss report and dishonesty. The alleged near-miss report was likely fabricated after the accident to shift blame to the claimant. Its omissions, timing and the absence of a resulting toolbox talk supported that conclusion. Statements attributed to the claimant immediately after the accident carried little weight because of the shock and pain he had suffered. Fundamental dishonesty was not established.
5. Procedural omission and order. Applying the guidance in YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 7, the court held that the omitted findings about workload and use of different dumpers were immaterial and did not require further treatment. The defendant was liable in negligence. Contributory negligence did not arise, as conceded by the defendant. Judgment was entered for the claimant, with costs to the claimant.