Dean Ward & Anor v BCA Automotive Ltd

An employer must take a proactive and reasonable approach to workplace safety. Introducing materially different work equipment ordinarily calls for a risk assessment addressing the differences and potential risks. A failure to conduct that specific assessment does not automatically establish breach where an effective assessment and safe system of work were in place before the accident, supported by suitable training and practical safeguards. Employees’ experience does not discharge the employer’s duty, but it may be relevant to whether training and precautions were adequate. The claimant must also prove that any breach caused the injury on the balance of probabilities. The claim failed because the existing risk assessment, training and alternative safe methods were sufficient, and the accident resulted from the claimant’s failure to maintain three points of contact.

The claim concerned injuries suffered by Dean Ward, an experienced car transporter driver employed by BCA Automotive Ltd. He fell from deck 8 of an Odyssey transporter while dismounting after releasing vehicle straps and sustained a compound articular fracture of the right elbow. The second claimant’s claim had settled before trial.

The claimant alleged that the defendant had failed to risk-assess the Odyssey’s different design and had failed to provide adequate training on mounting and dismounting. The defendant accepted the existence of a duty of care but denied breach and causation, relying on its generic risk assessment, safe system of work and training requiring three points of contact. The central issues were whether the defendant had breached its duty and, if so, whether that breach caused the injury.

1. Duty and risk assessment. The employer’s common-law duty required reasonable care for the claimant’s health and safety, including provision of a reasonably safe system of work. A reasonably prudent employer should have conducted a risk assessment when the Odyssey was introduced, because its design differed from the earlier 11+ transporter and the wheel hoop was higher. Risk assessment was logically anterior to deciding what precautions were required, and assumptions that risks were identical could leave material risks unidentified.
2. No breach established. The failure specifically to address the Odyssey’s introduction did not necessarily amount to breach. A risk assessment existed before the accident and identified stepping down from the transporter as a risk. It required drivers to use an area offering maximum anti-slip protection, check for hazards and maintain three points of contact. The associated Safe System of Work contained instructions on access, egress and dismounting, and the claimant had received Odyssey training in September 2019.
3. The claimant’s experience did not absolve the defendant from its duty. It was nevertheless relevant to the adequacy of the system and training. The court rejected the claimant’s evidence that he could not maintain three points of contact while holding the wheel hoop. Alternative methods, including using a ladder, kneeling or bending to the deck, and stepping onto the plate between decks, were available. The system was consistent with industry practice and had not been shown to be clearly bad.
4. Causation. Applying the ordinary but-for requirement, the claimant had to prove that the defendant’s breach caused the injury. The court inferred that he was in a hurry, failed to take sufficient care, chose not to use an available safe method and released the wheel hoop, thereby losing three points of contact. Neither breach nor causation was proved. The claim was dismissed.