WRULD DB-Defendant: Hampshire County Council
| Case | Date | Court | Claimant | Task | Injury | Judgment for |
|---|---|---|---|---|---|---|
| Rietzler & Sanderson -v- Hampshire County Council | 6 Jul 2010 | Southampton County | Rietzler | Operating security locks on doors | Lateral Epicondylitis | Defendant |
In these consolidated actions both claimants, Mrs Marie Rietzler and Mrs Helen Sanderson, sought substantial damages from the defendant in respect of personal injuries alleged to have been caused during the course of their employment as care assistants at a residential home owned and operated by the defendant. The Judgment is very lengthy, in part, because it deals with two claimants, but also because the nature of the claimants' case against the defendant changed significantly during the course of the trial.
At the opening of the trial, both claims were based on the premise that the claimants' injuries had been caused by the routine use of new doors with security door locks and door closing mechanisms that had been fitted, as part of the building and refurbishment programme, in the residential home in which the claimants worked. The claimants' case was that by failing to set up the doors, the security locks and the door closers to comply with appropriate standards and specifications, and by thereafter failing so to maintain or modify the doors, locks and/or closers as to eliminate the excessive forces required to open them, the defendant acted negligently and in breach of its statutory duties owed to the claimants. The better to illustrate their case at trial, the claimants caused to be constructed two half size but fully working doors, complete with frames, into which were fitted examples of the Kaba locks and Dorma self-closers, as used in the refurbished residential and nursing units. These were brought into court and secured to a table.
The Judgment records that all the pre-trial arguments and the evidence of both parties was structured around and confined to whether the forces required (a) to grip and turn the knob of the security lock, (b) to push or pull the weight of the door against the resistance of the door closing mechanism, and (c) to open the door sufficiently wide to be able to pass through, were excessive. Both ergonomists gave evidence confined to those issues. Both medical experts based significant parts of their evidence on that of the ergonomists. HH Judge Iain Hughes QC then says:
However, during the course of the evidence of the ergonomists it became apparent that certain central assumptions both had made were ill-founded, their reliance on certain published research was misplaced and their calculations were, as a consequence, erroneous in important respects.
After reviewing the evidence of the ergonomists, HH Judge Iain Hughes QC says:
At the end of all the evidence I gave counsel time to prepare their closing submissions. On resuming the trial I (and the defendant) discovered that the case hitherto advanced by the claimants since the amendment in January had been abandoned. The half size doors had also been removed from the court.
[Counsel for the claimants] began his written closing submissions in the following terms:
"The allegations of breach of Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 are no longer pursued. It is accepted that ... the specification and/or setup of the doors, door closers and security locks ... did not give rise to a reasonably foreseeable risk of harm to the staff at Marlfield."
Had a lesser advocate been representing the claimants, the collapse of the expert ergonomic evidence and the evidential consequences that flowed from that fact, would have brought the case to a premature conclusion. [Counsel for the claimants] is made of sterner stuff. He seamlessly embarked on what he boldly described as his "subsidiary" case.
The closing submissions of [Counsel for the claimants] continued:
"The defendant failed to take appropriate and positive action (a) to investigate and (b) to risk assess the individual claimants when they complained of signs and symptoms of upper limb disorder and/or when those signs and symptoms were otherwise brought to the defendant's attention."
The Judgment records that Counsel for the defendant protested that none of this (new) case had been pleaded, either originally or by way of amendment in January 2010. Counsel for the defendant also pointed out that the pleaded claim in respect of causation of injury was limited to the three sluice room doors and that the case that Counsel for the claimants outlined in closing had not been addressed by the witnesses for any party in their written evidence. The facts and matters set out in the body of the particulars of claim were all confined to the force, awkwardness and effort required to operate the locks and self-closers on the relevant doors.
At paragraph 50 of the Judgment, HH Judge Iain Hughes QC says:
[Counsel for the defendant]'s submission that the claimants ought not to be permitted to rely on a completely new case, first introduced at the conclusion of the trial, had much to commend it. However, [Counsel for the defendant] did not make a formal submission, either that this case involved a new claim in circumstances where the court had no discretion to permit it to proceed, or that [Counsel for the claimants] must apply to re-amend his pleading. I decided that it would be possible to resolve the differences between the parties in accordance with the overriding objective, by allowing [Counsel for the claimants] to continue. To have declined to deal with this new case would have left both claimants with a sense of injustice. Neither claimant is a malingerer, both have real and continuing medical problems and both deserve to have these cases finally and fully resolved.
After reviewing the extensive medical evidence, HH Judge Iain Hughes QC concludes his Judgment by saying:
Although where appropriate I have considered the case of each claimant separately, in the event the result is the same. Each claimant has failed to prove any negligence or breach of duty on the part of the defendant, whether in relation to the doors, the door closers or the digilocks, or in relation to the alternative case presented at the end of the evidence.
Each claimant has failed to prove that any act or omission on the part of the defendant caused any damage in respect of which a claim is made in this action.
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Last updated: 29/09/2010