Neutral Citation Number: [2016] EWHC 3136 (QB)
Case No: HQ15P01533
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 5th December 2016

Before :

SIR ROBERT FRANCIS QC
sitting as a High Court Judge

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Between :

	JONATHAN RYAN	Claimant	
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PRESCOTT-THOMAS LIMITED		
		Defendant	

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LAURA BEGLEY for the Claimant
NEIL BLOCK QC for the Defendant

Hearing dates: 29, 30 November, 1 December 2016

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Judgment Approved
INTRODUCTION AND THE ISSUES

1.	This is a claim for damages for personal injury arising out of an accident that the claimant alleges he suffered while working for the defendant on 18 March 2012. I say “alleged”, because the defendant denies that any such accident, or at least that any accident as described by the claimant, took place.  As a result Master Davison by an order dated 10 June 2016 directed the trial of a preliminary issue in these terms:

as to whether or not the Claimant has proved the circumstances of the accident as alleged in paragraphs 3 and 5 of the Particulars of Claim, [p8-9] and if so whether or not and/or to what extent the Claimant contributed to his own injuries by reason of the matters alleged in paragraph 9 of the Defence.

2.	Paragraphs 3 and 5 of the Particulars of Claim are in the following terms:

On the evening of 18 March 2012 at around 6.30pm the Claimant was loading boxes and sacks of groceries into the back of a lorry. The groceries were on pallets which the Claimant had moved onto the back of a lorry using a forklift truck. The Claimant then climbed into the lorry to unload the groceries off the pallets and into the lorry.

The Claimant had reached the last sack on a pallet. He bent over a 25kg sack of potatoes on a pallet in the back of the lorry with his right foot on the pallet and his left foot on the floor. As he began to lift the sack, in a stooping and twisting motion, he felt as if his back suddenly locked in the bent position. He felt a sharp shooting pain of great intensity, and was immediately doubly incontinent of bladder and bowel. The Claimant's legs gave way and he collapsed onto the floor of the lorry.

The defendant accepts that if the facts were as alleged by the claimant as set out above then there was a breach of duty. It is further accepted that in the course of the claimant’s employment on 18 March he sustained some injury, the nature and extent of which is not admitted.  At the beginning of the trial Mr Block QC on behalf of the defendant conceded that if there were a breach of duty he would not be contending that there was any contributory negligence.  It follows that if I find the claimant has proved the facts in accordance with his pleaded case he is entitled to judgment for damages to be assessed. If, on the other hand, I find that he has failed to prove those facts then it is inevitable that the action should be dismissed. 

3.	The defendant admits that the claimant was employed by it at its premises on the day in question but denies that there was an accident as alleged by the claimant.  Summarizing the relevant parts of the defence the defendant makes the following assertions:
a.	He had been instructed to prepare and/or load split boxes, not sacks of potatoes or other groceries; his work did not involve moving sacks of potatoes;
b.	He had not been instructed to lift or move sacks of potatoes or of any description;
c.	He had received oral instruction in lifting techniques, including bending at the knees, keeping a straight back, and straightening the legs.  He had not been instructed in lifting heavy loads because it had not been part of his duties to undertake such work;
d.	No sack of potatoes was found in a position where it should not have been;
e.	On the day in question the claimant came to see Mohammed Kayre, a night manager employed by the defendant, and told him he was unwell and needed to go home. He did not mention any accident and there were no visible signs of incontinence;
f.	It is believed that the claimant drove away from the defendant’s premises.

4.	Therefore there is only one issue I have to determine namely, has the claimant proved on the balance of probabilities that he suffered an accident as described in the Particulars of Claim? As will be seen the determination of this question effectively boils down to one issue: did the symptoms of which the claimant complains start while he was lifting a 25 kilogram sack of potatoes, or not?  

5.	Mr Block submits, and I agree, that there is little room in assessing the merits of the competing cases to conclude that the explanation for the difference is that the claimant on the one hand, or the defendant’s witnesses on the other were honestly mistaken in their evidence on the central issues.  It is difficult to avoid the conclusion that in some respects either the claimant or some of the defendant’s witnesses must have been setting out not to tell the whole truth.

6.	However I remind myself that my task is the narrow one of deciding whether the claimant has proved the material facts on a balance of probabilities.  I am entitled to draws common sense inferences from the evidence I accept, but I should not indulge in speculation.   Mr Block has advanced a tentative suggestion of an explanation as to why and how the claimant may have come to give an untrue account of events, but does not claim that has been proved on the evidence.  He raises it only to seek to demonstrate that the circumstances as disclosed by the evidence are not only consistent with the claimant’s evidence being the truth.

EVIDENCE
7.	I have read witness statements and heard oral evidence as follows:
a.	On behalf of the claimant:
i.	The claimant himself, Jonathan Ryan, who was born on 29 April 1983 and was therefore almost 29 years old at the material time,
ii.	His friend, Jason Branche
iii.	His partner and the mother of his child, Simone McKenzie
b.	On behalf of the defendant
i.	Peter Thomas, managing director and owner of the defendant company.
ii.	Norman Campbell, a bulker working for the defendant, and Simone McKenzie’s uncle.
iii.	Mohammed Kayre, the defendant’s night manager
iv.	Badusimile Moyo, who works in the defendant’s office at the warehouse.
v.	John Whitthread, employed by the defendant as a bulker

8.	An agreed file of documentary material was put before me. In addition at the beginning of the hearing a file of additional material was produced, deriving from late disclosure made by the defendant, made within the week before the hearing.  This material included risk assessments, training records, and accident reports relevant to the nature of the system of work adopted by the defendant.  This material should have been disclosed in the course of standard disclosure, but was not, an omission compounded by assertions made by the defendant’s solicitors in two letters that no such material existed.  I have heard Mr Thomas’s explanation that when he signed the disclosure certificate he had honestly believed that all relevant material had been identified and passed to the solicitors by a health and safety adviser. He accepted that he had not read the attached list of documents, an omission for which he apologized.  I accept that this was an honest mistake, but it was a careless one.  Nonetheless I do not consider the omission justifies any adverse inference to be drawn with regard to the credibility of the evidence adduced on the defendant’s behalf, and no prejudice has been caused to the conduct of the trial of the preliminary issue. 

9.	In addition I have heard helpful submissions from Ms Laura Begley on behalf of the claimant and Mr Block QC on behalf of the defendant.  It not out of lack of gratitude for their assistance that I shall resist the temptation to follow each and every point they made in argument, but my analysis of the evidence which follows has had regard to everything they have said.

10.	In coming to my conclusion on the issue I have taken into account all of this material, and the submissions, but will seek in this judgment to focus on the matters which have seemed to me to be of prime significance.

BACKGROUND
11.	The defendant is in business as a wholesale caterer.  It employs about 100 employees in various capacities, including packers, loaders, drivers, office and sales staff.  Its premises are essentially a warehouse unit at New Spitalfields Market in Leyton.  The layout of the premises has formed an important part of the argument about the system of work adopted and what precisely the claimant was doing at the time of his alleged accident. Therefore I need to describe it in a little detail.  I have been assisted by photographs and a plan of the premises. The warehouse consists of one part of an oblong shaped building which is itself part of a group of four similar sized and shaped buildings.  It is some 31m in length and 14.2m in width. Inside on the ground floor there is a cold room at the end nearest the other half of the building; the cold room also extends about half way along one wall.  At the end of the same wall is a toilet in the corner, adjacent to an electrical plant room, a small store and an office.  There is a mezzanine floor on which there is a large freezer.  Between the office and the stairs leading to the mezzanine is a small door leading to the car park. On the opposite wall which externally faces one of the other buildings are two roller shutters giving access for goods to be moved in and out of the warehouse.

12.	The business supplies schools and other organisations with fresh fruit and vegetables.  Orders can involve whole bags of produce such as potatoes and onions, weighing up to 25 kilos, whole boxes of produce of varying weights, all of which are categorized as “bulk”.   Bulk boxes of this type are sealed. There can also be smaller orders of produce packed into what are called “split” boxes or loads.  These weigh much less, generally between 5 and 10 kilos and are contained in boxes which are not sealed. Some customers may have orders which consist of both split and bulk items.

13.	The owner of the business, Mr Thomas, works there on a daily basis.  He has managers who supervise the workforce. The managers include Mr Mohammed Kayre who was responsible for the induction, training and supervision of the claimant. Also employed there is Norman Campbell, an uncle of the claimant’s partner, Simone McKenzie.

THE CLAIMANT’S ACCOUNT
14.	Mr Ryan gave an account of his involvement with the defendant, the nature of the work he did, and the circumstances which led him to go to hospital. His account has been challenged in many respects.  I shall therefore set out my understanding of his evidence on the relevant issues, followed by my understanding of the evidence which supports or contradicts that account, followed by my analysis and conclusions.

Mr Ryan’s engagement by the defendant
15.	Mr Ryan told me that he had previous jobs at Eurostar, Marks and Spencer and Boots.  He had worked at Eurostar as a forklift truck driver but his latest job had been seasonal work at Boots.  Just before applying to the defendant he had renewed his license as a forklift truck driver.  

16.	The claimant was introduced to the defendant as a prospective employee by Norman Campbell. At the time the claimant was going out with his niece, Ms McKenzie, and they had a four-month-old baby. Ms McKenzie and other members of the family had suggested to Mr Campbell that he could ask his employers if they had any work for the claimant.  Mr Ryan agreed this was a friendly act on Mr Campbell’s part, but he did not regard him as a friend.  Mr Ryan told me he had applied for a job as a forklift truck driver because he had just re-acquired his licence.  He did not meet Mr Thomas, and all his dealings were with Mr Mohammed Kayre, whom he knew as Mo. Mr Kayre showed him round and told him he would be moving pallets around from the warehouse to vehicles. He thought he was engaged as a forklift truck driver, or a loader/packer to take pallets of produce to the lorries and unload the produce into them.

Nature of the claimant’s work
17.	Mr Ryan thought that he had started work about 2 weeks before his accident.  The first week he received cash in hand and then subsequently he was paid by transfer to a bank account.  He was certain that he had been left to work on his own from the outset after the initial introduction, and that the day of his accident was not, as the defendant asserted, his first day of work following training.  He had not been shown a safe lifting technique by Mr Kayre; he did not need this because he had been trained in lifting techniques in a previous job.  He did not believe he was working a trial period but that he had got the job. He started work at between 4.00 to 5.00pm each day depending on when he was asked to come in the previous day by Mr Kayre. There did not appear to be a fixed time for him to start.  He would rarely leave before midnight.  He denied that there was a fixed starting time of 3.00pm.  There was no regular starting time and he was not given a clocking in card before his accident although he saw that other employees had them.

18.	Mr Ryan’s evidence as to the nature of his job was at considerable variance from the defendant’s.  He said his job was to pick up pallets from the warehouse and take them to the lorries.  The loads on the pallets could be a mixture of bulk bags and split boxes.  He disagreed with the suggestion that pallets would only have split goods or bulk loads on them, or that there were separate areas for loading the different types of produce.  The pallet would be lifted so that it was half in the lorry and half resting on the forks of the truck.  He would then unload the split boxes on to the shelves on either side of the lorry’s interior and the bulk bags on to the floor. He would stand with one foot on the lorry floor and the other on the pallet to transfer bags or boxes.  He would not stand entirely on the pallet because he did not think that was safe.

The accident
19.	He described his accident as follows: he had already taken loads to a number of lorries. He was attempting to move a sack of potatoes from a pallet to the floor of a lorry, with one foot on the floor and the other on the pallet. He went to stand up after picking up a 25 kilo bag of potatoes, when to quote from my note of his oral evidence

… as I was standing upright I felt my back go and dropped the sack. I could not hold it up and lowered myself out of lorry and that is when I met Norman [that is Norman Campbell] and told him what I had done. Norman was in the yard… When he saw me walking he approached me and I told him what had happened. He told me to see Mo. It was more of a shuffle than a walk because I could not lift my legs properly. I had soiled myself and was doubly incontinent.

I told Norman I had done my back in.  He said I had to notify Mo [that is Mr Kayre].  I did not describe how I had done my back in. I was in a lot of pain and embarrassed I had soiled myself…. As I was approaching the warehouse Mo was coming out. I told him I done my back in. He told me I had to go to hospital

He agreed that Mr Campbell had not showed concern, but thought that anyone would have known he was in pain.  He agreed that Mr Campbell did not inquire how this had happened. It was suggested to the claimant that all this was easier to understand if he had merely told Mr Campbell that he was feeling unwell.  He did not directly answer this suggestion, but gave the somewhat strange answer that if he had been feeling unwell he would not have gone to work at all that day.  I observe only – as did Mr Campbell -  that this might depend on when he started to feel unwell.

Events after the accident
20.	After this Mr Ryan told me that coincidentally he had been telephoned by his friend Jason Branche, who had a habit of telephoning him at random without prior arrangement.   He asked Mr Branche to come to pick him up, as he did not have his own car at the time.  He told him he had “done [his] back in” and he had to go to hospital.  When Mr Branche arrived he had shuffled out to the car from the front of the warehouse. He could not remember precisely what he had said to him about the accident. They went first to the claimant’s mother’s home, where the claimant lives so he could clean himself up to avoid embarrassment at the hospital.

21.	At hospital the claimant was seen in A&E, and a few days later by his general practitioner.  It is recorded as arriving at hospital at 20.41.  He was asked about a number of entries in the clinical records
a.	At 21.06 an initial assessment recorded the following note of the patient’s history of complaint:

1 hr hx pt said was working in packing and lifting was about to squat mid way was not able to stand up as pain sets into lower back since nil analgesia taken. Was carried by his colleague x 2 as said in the car nil numbness to legs

The claimant said he did not understand the reference to being carried by two persons as he had been wheeled into A&E in a wheelchair which Mr Branche had obtained at the hospital and brought out to the car.  He could not recall saying he had been lifting a sack of potatoes because that was not the issue in his mind, as opposed to the back pain he was suffering.  

b.	A doctor’s note timed at 22.30 gave the history as follows:

… went to pick up object, stuck in squatting position; unable to stand up; mobilized in wheelchair to hospital, pins and needles … BO when happened.

The claimant told me he did not remember having a discussion on those terms with the doctor.  He thought that “object” would have been a strange term to use. 

c.	With regard to a part of this note which stated 

B[owels] O[pened]when happened. P[assed]U[rine] normal 

he insisted that, contrary to the contents of the note, he had told the doctor that he emptied both his bowels and bladder at the time of the accident and that he had not passed urine between the accident and arriving at hospital.  He remembered mentioning both types of incontinence because it was the most embarrassing part of the discussion, and caused the doctor to require him to undergo a rectal examination.

d.	The A&E discharge summary, timed at about midnight, recorded that

This gentleman presented with a 1 hour history of sudden lower back pain whilst lifting objects at work. Shooting pain in lower back radiating to left leg associated with pins and needles and left buttock numbness. No urinary/faecal incontinence…. 

The claimant could not offer an explanation as to why this note recorded no incontinence, or why others contained no reference to urinary incontinence, and in one case a reference to passing urine normally,  as he was sure he had talked about double incontinence.

e.	On 23 March the claimant went to see his general practitioner to obtain medication and a sick note.  He says that this was after he had telephoned Mr Kayre who advised him to obtain a medical sick note.  The GP record for this attendance states:

“acute back pain at work lifting boxes on Sun[day] passed stool at same time, no incontinence since…  attends as needs note for work”

The claimant told me that he would not have told the doctor he was lifting “objects” or boxes” because, he insisted, he was lifting a sack of potatoes. He could not explain how the doctor could have come to record that it was ”boxes” which had been lifted.  When challenged about what he had told the GP, the claimant gave the following answer:

I cannot recall the exact conversation but I damaged my back lifting a sack.

He was asked whether he was not denying he had said he had been lifting boxes and, according to my note his reply was:

I am denying it. I cannot say I did and cannot say I did not… I am unsure if I said that because it was four years ago

22.	A further issue was whether, as the claimant suggested, he had telephoned Mr Kayre after learning from Ms McKenzie that according to Mr Campbell he had been sacked.   He told me he would probably have phoned him on his mobile number, but could not recall whether he had called the office.  He asserted that Mr Kayre was lying if he maintained that he had not spoken to him. He said that Mr Kayre gave him a number to call but when he tried there was no answer, and he heard no more.

23.	Evidence on behalf of the claimant was offered by Mr Branche, and Ms McKenzie:
a.	Mr Branche confirmed that he had known the claimant for 10 years and saw him two or so times a week.  He had dropped the claimant at work 5 or 6 times over what he supposed was a couple of weeks.  He was surprised to hear it suggested that the claimant had only worked there for 6 days or so.  He did not think he dropped him off as early as 3.00pm He recalled that on 18 March the claimant had called him to say he had hurt his back at work and asked to be picked up.  He was clear in his evidence that it was the claimant who had called him, not vice versa.  Mr Branche knew where to go as he regularly dropped him at work.  He thought that this occurred between 6.00 and about 7.00pm. When he got to the warehouse he saw the claimant coming out of it; he appeared to be uncomfortable, in pain, and slightly bent to one side.  He was not limping or hobbling but was walking slowly.  The claimant told him he had done something to his back while lifting something and been doubly incontinent. Later he said he had “messed up his back”.  Mr Branche recalled putting a floor mat on the car seat to save it from being soiled.  He took the claimant to hospital via a stop at his mother’s to clean up.  He recalled that the claimant had told a doctor that he had hurt his back lifting something, but he did not remember any conversation about what he had been lifting.

b.	Ms McKenzie told me she lived with her grandmother and that she and the claimant had a baby daughter a few months before the accident.  She is related to Mr Campbell who is her uncle.  She thought that the claimant had been working at the defendant’s for over a week before the accident. She was confident he started at about 5.00pm, each day because he used come to her home first to see the baby.  He had called her on the way to hospital to say he had hurt his back, but did not say then how this had happened.  She told me that he had said later that he had been lifting potatoes and then had soiled himself. He had said the same thing to the triage staff at the hospital.  Some days later her grandmother told her that Mr Campbell had said the claimant no longer had a job.  Ms McKenzie and her grandmother agreed that this was an unfair dismissal and that he should sue the defendant.  Ms McKenzie then told me that Mr Campbell had said that if this happened, he, Mr Campbell would be fired.  It had been a big issue in the family and they had stopped talking to Mr Campbell as a result.

24.	In order to decide whether I accept the claimant’s account as to the circumstances in which he sustained injury I must assess the impact of the evidence offered on behalf of the defendant,  the documentary material, and to some extent the evidence of his own witnesses, where it was at odds with the account given by the claimant. 
a.	In relation to the background and context of the events on 18 March the issues raise included
i.	The length of time the claimant had been working for the defendant;
ii.	The terms of his engagement and the extent of any training or supervision he received;
iii.	The nature of the job he was employed to do.

b.	With regard to the events surrounding the incident I have to consider the evidence as to 
i.	what he was doing when he developed back pain;
ii.	what he told Mr Campbell and Mr Kayre immediately afterwards;
iii.	What he told medical staff about what had happened;
iv.	The claimant’s actions after he learned his employment had been terminated.

I shall summarise the evidence given on each of these topics

LENGTH OF EMPLOYMENT
25.	The records of the claimant’s employment are scanty.  I have seen an employment application form, signed by the claimant but undated, in which, in the claimant’s handwriting the job applied for is described as “packer” and the start date is given as 13 March 2012.  An earlier employment application form, for a job as “fork lift – Packer”, was signed by the applicant and dated 28 February 2012 but gives no start date.  There are pay slips and other records which suggest that the claimant was paid on 23 March for what I interpret on the evidence as being 6 days.  A personnel record gives a start date of 12. March. Mr Thomas readily conceded that the pay records were inaccurate in recording as the number of hours worked, what was in fact the number of days. He explained that the claimant would have been paid a week’s cash in hand “off the books” for an initial week in which he would be introduced to the defendant’s system of work, the premises and for a start of required training. Mr Kayre, whose duties included supervising the claimant, was clear in his evidence that the claimant started on 11 March, and that during the ensuing week he worked closely with him.  There would have been no documentation during that week. 

ENGAGEMENT AND TRAINING
26.	While some training records have been disclosed none of them relate to the claimant. In a letter dated 22 February 2013 the defendant’s insurers accepted that the claimant’s training was undocumented.  Mr Kayre told me that during the first week he explained everything about how the company worked, showed him where the packers and loaders worked. He insisted he did demonstrate safe lifting, even though he knew that the claimant said he had received such training in a previous employment. He showed him how to lift split loads and put them in the lorries. He said he would have told the claimant he was offering him a job as a split loader. He did supervise him closely although he also had to oversee the work of 12 others including those in the warehouse. He explained that the training would not have been complete by 18 March as it took a total of about three weeks.

THE NATURE OF THE WORK THE CLAIMANT WAS EMPLOYED TO DO
27.	Mr Thomas, the managing director and owner of the company, asserted that the claimant was employed as a “split loader”.  His evidence was that the company has two basic types of loads, “split loads”, which are boxes containing a mixture of different products, such as tomatoes and cucumbers, weighing no more than 5 kg and “bulk loads” which tend to be large amounts of the same item, such as potatoes, which can be much heavier.  For example the potato sacks, of which I have seen a photograph are clearly marked as weighing 25 kilos.  

28.	New employees such as the claimant are, Mr Thomas says, always started either as “split packers”, who make up the individual boxes and put them on pallets, or as “split loaders” who move the pallets outside the building using pump trucks and on to delivery vehicles using forklift trucks. Split loaders will then move the boxes from the pallets on to shelves in the vehicles.  Employees will only move on to bulk loading, if required and in any event only after gaining some experience. Bulk loads are also put on to pallets and taken out to vehicles with pump trucks. The whole pallet is then loaded on the vehicle with a forklift truck.   Mr Whitthread, a bulk loader confirmed this pattern of working.  

29.	Mr Thomas was quite clear in his evidence in chief that bulk and split loads were never mixed on the same pallet.  All split loads were dealt with  at one end of the warehouse and bulk at the other.  All produce started off in the cold rooms but then taken to one end or the other depending on whether it was to be used for split or bulk loading.   It would, in his words, have been a “catastrophe” if sacks were put on top of split boxes as they would be unstable.  In cross-examination he insisted that there was no way the system could break down to enable the claimant to be lifting a bag of potatoes before 8 to 9.00pm: they just would not be around to be lifted before then because the bulkers only start work at around 8.00pm.  In re-examination he added that the orders were divided up into bulk and split items by the computer and entered on different sheets.  The bulkers would arrive at 8.00pm and get bulk sheets.  He did at the end of his re-examination state that there might be occasions late in the evening when split boxes were put on the same pallet as bulk orders

30.	Mr Thomas said that split packers started work at 2.00pm to start packing the split boxes.. This could not be done at the same time as bulk loads were being loaded as the splits had to go on the shelves of the lorry, whereas the bulk went on the floor.  Split loads for a number of different lorries could be put on the same pallet, and were wrapped in cling film to protect them from the weather and to provide stability until they were unloaded into lorries.  

31.	Mr Campbell’s evidence was not quite to the same effect.  He was a bulker and he told me he started work at or after 7.00.  Bulkers and split loaders would come in at or after 7.00pm.  There were some loaders who loaded both bulk and split loads but not on the same pallet it was up to the loader whether to load the splits or the bulk first. A sack of potatoes could not have been on the same pallet as a split load.

32.	Mr Kayre, who trained the claimant, said he would normally start work at 7.00 but as he was responsible for training new staff he had come in early in the week before incident to undertake the induction and training of the claimant.   During those first few days the claimant worked closely with him.  The claimant was, he said supposed to start work at 3.00pm and finish at 11.00pm.  He denied that the claimant started as late as 5.00pm.  He said there was no question of split loaders handling bulk loads.  He said there was never an occasion when a split pallet would contain bulk loads and that the system could not break down because there were the two separate areas of activity.

33.	Mr Whitthread, a bulker, stated that bulk items would never be put on a split load pallet.  told me as had others, that boxes can be part of bulk loads as well as sacks.  The alterative type of load was a pallet with split boxes  only.

EXTENT OF TRAINING
34.	Mr Kayre was responsible for training the claimant.  He told me that training took about three weeks to complete and that the training record, of which I was shown an example, was only completed at the end of that period.  He accepted that he had been told the claimant had previously had manual handling training but nonetheless he had provided such training for him. He also spent time showing him round the warehouse and explaining his job.  He trained him on the handling of split loads   He said he did not leave him alone a great deal

CIRCUMSTANCES RELEVANT TO THE ALLEGED INCIDENT
35.	Mr Campbell said that he had started work on 18 March at or after 7.00pm. He first saw the claimant at perhaps between 7.30 and 8.00. He had come up to him and said he did not feel well and was going home. He was laughing and smiling as he came towards him.  Mr Campbell told him to see Mr Kayre.  He denied that the claimant was bent over; had he seen that he would have told him to call an ambulance. Mr Campbell asserted that the claimant had a tendency to laugh and smile at everything.  He agreed with the suggestion that he thought the claimant was “pulling a fast one” and was like others he had seen looking for a way out of a job.

36.	Mr Kayre told me that he was at work when the claimant started on 18 March. They worked together loading lorries.  He left him on his own from time to time.  At some point in the early evening Mr Kayre was in the packing area when the claimant approached him and told him he was not feeling well and wanted to go home. He did not appear distressed and was not doubled up with pain or showing any signs of incontinence. Mr Kayre was a trained first aider and suggested that if an employee had said he was injured he would have told him to stay where he was and would have called an ambulance.  He denied he had been told by the claimant that he had hurt his back and asserted that he was “laughing and joking” as he said he was unwell.  Mr Kayre told me that he had not really believed him but as he had said he was unwell, he let him go. 

37.	Mr Moyo, claims to have seen the claimant leave the premises on this occasion.  He was walking normally and got into a car and drove himself away.  There was no-one else in the car.

EVENTS AFTER THE INCIDENT
38.	Mr Kayre denied that he had been contacted at all by the claimant after he left the premises and had not suggested he get a medical certificate.  He just expected that the claimant would return to work.  He could not remember if he ever tried to contact him to say his job had gone as he would not necessarily have done so.  Mr Thomas explained that he had never provided a contract of employment to the claimant and that he was never formally dismissed: “he just never turned up”.  The defendant had no further knowledge about him until the letter before action on 27 June 2012.

39.	Mr Campbell could not recall a conversation about the suggestion that the claimant had been unfairly dismissed..  I understood him to be saying that he could not remember such a conversation but could not entirely rule it out.

ASSESSMENT OF THE WITNESSES
40.	At the request of Ms Begley witnesses were kept out of court so that they did not hear the evidence being given by witnesses who preceded them.  Accordingly their evidence was not influenced by anything they heard said in court.  The events in question took place over four years ago.    However the claimant’s allegation that he had been injured at work was made known to the defendant, and therefore I assume, its staff within three months.  Therefore, with one exception, it is likely that all witnesses were in a position at an early stage to recall events.  Nonetheless I must have regard to the potential effect of witnesses turning events over in their minds and persuading themselves that events accorded with their notion of what ought to have happened.  Such considerations are likely to be more significant in relation to evidence given about the context of the events in question than to evidence as to the more central issues, such as the claimant’s appearance and demeanour.  Mr Block suggested that the differences in relation to some of the issues raised in this case would be difficult to explain as being the result of mistaken memory.  I agree.

41.	The claimant presented generally as a confident witness who gave evidence in a relaxed manner.  However, certain aspects of his account do not appear to me to be consistent with other evidence and I will discuss this below.  Further I found it to be odd, to say the least, that if he had been injured seriously and in the manner he has described, that on learning that he had lost his job he made no serious attempt to get in touch with the defendant to explore why he could not be re-employed by them.  On his own account having acquired the medical certificate as was suggested to him by Mr Kayre, he was then told his job had been filled and that he ought to make further contact with the firm. It is surprising that he gave up attempting to contact the defendant when he received no reply from the number he was given, not even telephoning Mr Kayre again to get an effective number or visiting the premises.  

42.	I found Mr Branche to be a careful witness who was doing his best to tell the court his true recollection of events.  In particular he took care to be clear about what he could not remember, and it was a distinctive feature of his evidence that he could not recollect having heard the claimant say he had injured his back while lifting a sack of potatoes.  His description of the claimant’s presentation was also significantly less dramatic that the claimant’s own account.  There was a difference in recollection between them as to who telephoned whom on the day in question, but this is a peripheral matter in which differences are easy to understand and this does not assist me decide the important issues in the case.

43.	With regret I concluded that I could place little weight on the evidence of Simone McKenzie.  She was clearly in a difficult position, doubtless wishing to support her partner, the claimant, and also finding her uncle to be contradicting her partner’s evidence.  I noted that the manner in which she told the court that she had heard the claimant tell the doctor about lifting a sack of potatoes lacked conviction and became diffident in tone.  I accept that she would have been understandably nervous about giving evidence on a matter she must have known was important to the case, but I have to note that the pressures on her to persuade herself that she had heard such a statement must have been considerable. 

44.	Mr Thomas was clearly a man who was genuinely convinced that no departure from the system of work he described was possible.  I have no doubt that he is genuinely passionate about his business and the way it is run, but it is fair to say that I could not accept that this was worthy of the glowing description bestowed by Mr Block.  Firstly, while very properly Mr Thomas admitted and apologized for the error in relation to disclosure, he had been willing to verify the list of documents without reading it.  This suggests a somewhat impulsive approach.  Secondly, his claims for well run systems fell down on examination of payslips which did not record clearly rates of pay,  the lack of clarity around the application forms for the claimant, and the absence of any formal record of the offering of a contract to the claimant or the termination of his employment.  In passing I have considered whether the omission to write to or contact the claimant reflects on the credibility of the defendant’s witnesses, but have concluded that it does not. I consider it reflects an attitude on their part that they were relieved to be rid of the claimant if he did not come back.  However it is a blemish on the claim for high standards in the business. Thirdly his confidence in the rigidity of adherence to the described system of work was not entirely borne out by the differences in relation to start times, and the order in which goods were loaded suggested in the evidence of others as recounted above, or by his own concession that split boxes might end up on bulk pallet late in the evening.

45.	Mr Campbell was in the awkward position of having introduced the claimant to the defendant, and was no doubt embarrassed by the trouble that has subsequently ensued.  I accept on the evidence that he is likely to have been anxious about the effect of all this on his job. These matters could have led him to be more positive in his support for the defendant than he might otherwise have been.  However he impressed me as a witness, who in spite of these difficulties, was doing his best to tell the court the truth as he remembered it.  He was particularly frank in admitting that he had been worried that people might think he had been helping the claimant to get money.  He displayed what I regarded as genuine anger at the suggestion that he would merely tell the claimant to talk to Mr Kayre if the claimant had actually reported to him that he had injured his back.  He came across to me as a reserved individual with considerable reservations about the claimant, but not as a callous man.  As is common ground, his assistance to the claimant in getting the job with the defendant was an act of kindness towards someone whom I accept he knew only a little.

46.	Mr Kayre I found to be a thoughtful and careful witness.  He gave me the impression of genuinely recalling what he recalled happening.

47.	Mr Whitthread in reality added little to the evidence but was in my judgment doing his honest best to tell the truth as he recalled it.

48.	Mr Moyo was doubtless offering me an honest recollection, but I do find it implausible that hecould actually remember seeing the claimant departing the premises on 18 March.  Not only is his evidence inconsistent with that of Mr Branche, but it is difficult to understand why he would remember, when first asked about it years later, an unremarkable departure of a man, he could hardly have known driving his own car and having shown no signs of injury.  He may have seen such a departure, whether by the claimant or some other similar employee, but I am satisfied that it is unlikely to have been on the day in question.

MY FINDINGS
49.	The length of time the claimant had been working for the defendant
The evidence is not unequivocal as to when the claimant started work with the defendant, and the position is not made any more clear by the fact that he seems to have been paid for over a week after he departed the company on 18 March.  However Mr Kayre’s evidence is consistent with the documentary material and on this issue I prefer his evidence to that of the claimant.  Mr Branche’s evidence as to how many times he drove the claimant to work is and can only be a rough estimate and is not therefore inconsistent with what Mr Kayre has said.  In so far as it is material to the case I find that the claimant started work on or about 11 March and had been working at its premises for about a week before the accident.  

50.	The extent of any training or supervision 
 
Again I prefer the evidence of Mr Kayre to that of the claimant with regard to the training and supervision he gave the claimant.  Mr Thomas impressed me as a man who cared about the safety and efficiency of his working methods and his staff, even if he was not as good as he would have wished at attending to the paperwork.  It would have been important to him to ensure that all new staff understood that system and what was expected of them.  Therefore it is probable that training of the type described by Mr Kayre would have been embarked upon.  I find that the claimant would also have been kept under relatively close supervision, even if there were periods when Mr Kayre was not physically with the claimant, but was attending to other matters in the warehouse.  In my judgment he was clearly not with the claimant at the time of the alleged accident. I also accept that 18 March was the first day on which the claimant was engaged in productive but supervised work, as opposed to working alongside Mr Kayre learning how the job was done.

51.	The nature of the work the claimant was employed to do
The defendant’s case is that the claimant was employed as a split loader and that he would therefore have had nothing to do with bulk loads or in particular sacks of potatoes.  The claimant’s case is that he was employed as a forklift truck driver to move such pallets, whether contained split or bulk loads or a mixture to the lorries and unload them

52.	In the course of the hearing considerable attention was paid to various risk assessments undertaken by the defendant into various activities.  Ms Begley sought to draw from them inferences as to the job specification for the claimant’s employment. I found them to be of limited if any assistance.  These were assessments of the risk of injury of various activities and not intended to be exhaustive descriptions of what any one employee would be required to do.  While an assessment addressed the activities of split loading and bulk loading collectively it does not follow that any one employee was employed to do both, but merely that, rightly or wrongly, these activities were considered to carry the same level of risk. 

53.	The witnesses called by the defendant gave clear, compelling and honest evidence with regard to the system of work used.  Their evidence that bulk loads, such as sacks of potatoes, were never put on the same pallets as split loads made considerable sense for a number of reasons.  Firstly split loads were prepared in a different location in the warehouse from bulk loads.  Secondly it would have been difficult to balance sacks of produce safely on the same pallet as split boxes, which would be at least partly open.  While bulk loads could contain boxes these would be sealed and capable of stable stacking, and therefore could be mixed with bulk bags. Thirdly the order of loading lorries required split boxes to be put on the lorry shelves before the bulk sacks and boxes were placed on the lorry floor.  Finally, even if such a system was not the only theoretical way in which goods could have been transferred from warehouse to lorry, the passion with which each of the defendant’s witnesses denied the suggestions put to them by Ms Begley was in my judgment nothing to do with their reluctance to admit that the claimant had sustained an accident as he described and everything to do with their lived experience of their work.  

54.	However, the fact that split and bulk goods – or at least bulk sacks – are never mixed on the same pallet, does not mean necessarily that the claimant could not have picked up a bulk pallet.  Mr Block argues that it is not open to the claimant to advance a case that he was handling a bulk pallet because that is not the way his case was opened.  I do not accept this argument.  The pleaded case in the Particulars of Claim paragraph 3 refers to “boxes” and sacks of groceries” on a pallet and Ms Begley’s written opening repeated this, I have reviewed my note of her oral opening and do not see anything inconsistent with that.  The issue I have to determine is whether the claimant was in fact lifting a sack of potatoes when he sustained back pain, not whether he was doing so from a mixed or split pallet or one containing exclusively bulk goods.  To determine that issue I should first consider whether it was possible for the claimant to have been handling a sack of potatoes.

55.	Mr Thomas said in his written statement that “the vast majority of the vehicles will be loaded with both split loads and bulk loads.”  This suggests that both those engaged in bulk loading and split loading may have to work in the same place or at least on the same vehicle. However it was explained by Mr Kayre that the split loaders start their work before the bulk loaders as the split loads have to be put on the shelves in the lorries before the bulk loads are placed on the floor.  According to him the claimant started work at 3.00pm and therefore was engaged in the split loading. 

56.	This does not mean that the claimant was not present at a time when bulk loading started. Mr Thomas asserted in his written statement that bulk loaders start work at a later time than split loaders, because the bulk loads are only put on the vehicles after the split loaders have completed their work on a particular vehicle. This was confirmed by Mr Kayre in his witness statement.  Mr Campbell written evidence stated that bulkers, of whom he was one, only started their shift after 7.00pm but split loaders, which is what he understood the claimant to have been employed as, started at 3.00pm and would have worked until 7 or 8.00pm.  Therefore this was an overlap, and indeed there must have been for Mr Campbell to have been there for the claimant to tell him he wanted to leave. 

57.	I am not persuaded that the positioning of pallets after they have been filled with loads helps me decide whether or not the claimant could have handled a bulk load.  While I accept that split loads were prepared at a different end of the warehouse to bulk loads the resulting pallets, or some of them, could be put outside and in any event not very far from each other.  I accept Ms Begley’s point that the claimant would be given a manifest and if that contained reference to a bulk pallet that is what he would move.  He may not have been employed principally to move such products but I accept it is not beyond the realms of possibility that he was handed a bulk manifest rather than a split goods manifest. The question remains whether I am satisfied on the balance of probabilities that he was in fact handling a sack of potatoes as he has described and it is to that central question to which I now turn.

What was the claimant doing when he developed back pain?
58.	 According to both Mr Campbell and Mr Kayre the claimant told them that he was unwell and wanted to go home.  Both say that he was laughing as he told them this.  Both are adamant that no mention was made of injuring his back and that if he had an ambulance would have been summoned. Neither witness struck me as being uncaring people. It was suggested that their reaction to being told the claimant was unwell was incurious, but their explanation was that the claimant seemed to be joking.  At first sight it might seem strange that Mr Kayre would just let the claimant go home if he did not believe him, but then this was a completely new employee and it is not unreasonable for him to think the firm might be better off without a person with this attitude on the premises, or that it might be prudent to take him at his word to the extent of allowing him to leave.  I found their evidence convincing and preferred it to the claimant’s on this point.

59.	Mr Branche, however, says he was told by the claimant that he had hurt his back, and I accept that evidence.  He was not told how this occurred.  That suggests to me that either the claimant did not know how it had happened, or at least that the cause was not obvious to him. I note also that the claimant did not suggest during his oral evidence he had told Mr Campbell or Mr Kayre how he had hurt his back. If he had been lifting a heavy sack of potatoes at the time the cause of his problems would have been obvious to him, and he might naturally have been expected to say that was what he had been doing.

60.	The real difficulties for the claimant come with his attendance at hospital and later at his general practitioner’s surgery.  It is in my judgment inconceivable that neither the triage nurse, nor the FY2 doctor nor the GP would have wanted to know what the claimant was doing when he first experienced the symptoms complained of.  Indeed an explanation is recorded in each note. None of them refer to a sack or to potatoes.  The triage note refers only to lifting, without saying what was being lifted.  The FY2 doctor’s note refers to “objects”.   I can accept that this is unlikely to be the word used by the claimant, but it is a strange word for a doctor to use if he/she was told that the claimant had been lifting a [singular] heavy sack or bag of potatoes, or for a sack or bag to be described as an object.  I reject the evidence of Ms McKenzie who may have persuaded herself she heard her partner talk about lifting potatoes, but is in my judgment mistaken.  Medical staff would have been inevitably interested to know what might have caused the back pain complained of, and in all probability would have noted such a clear explanation if it had been given.  A further inconsistency is the reference in the record to the claimant being carried by two colleagues, when he agrees this was not the case.  It is a strange thing to appear in the records if the writer was not told something along those lines. And in my judgments suggests that the claimant was exaggerating.

61.	These difficulties become, in my judgment, decisive when one turns to the GP note in which it is recorded that the claimant was lifting “boxes”.  It is inconceivable that the doctor would have recorded that word unless he was told it by the claimant.  The word does not appear in any hospital records, even if those had reached the GP by the time of this consultation.  If the claimant had said that he had been lifting a sack of potatoes I consider it to be overwhelmingly likely that the doctor would have recorded that.

62.	The first time a clear account associating the claimant’s injury with lifting potatoes comes in his solicitor’s letter of 27 June 2012.  This is of course not long after the event, but a development of considerable significance had occurred between the two dates.  The claimant had learned that his job had been filled by another employee.  The evidence of the discussion in the family is that the focus was on the unfairness of this and on a claim for unfair dismissal If it had been clear to everyone that the inability of the claimant to return to work had been caused by a lifting incident, it is surprising that their thoughts did not turn to that as a grievance.  In my judgment it is significant that it was only after consulting a solicitor that a possible claim was identified.   In my judgment it is more probable than not that it was at this point that the claimant decided to assert that his injury had been caused by lifting a bag of potatoes. Until that point he had not been specific as to what he was doing when the back pain started.   I agree with Mr Block that it is difficult to explain this away as an honest mistake or confusion; the incident as now described by the claimant is too simple for that.  Indeed it is the simplicity of that description that makes it impossible for me to believe that, if it had truly occurred, the claimant would not have given that account to Mr Campbell, Mr Kayre, Mr Branche and the doctors.  For none of them to have been given it is inexplicable.

63.	The terms of the preliminary issue do not make it strictly necessary for me to decide what actually happened if, as I find, the claimant was not lifting a sack of potatoes at the time of his injury.  However it was accepted by the defendant that some injury occurred while he was working on 18 March sufficient to cause him pain.  Further, as the claimant clearly mentioned some level of incontinence to hospital staff, I accept that this probably happened.  The degree of this is open to question because he did not mention urinary incontinence, and indeed one note expressly contradicts any such problem.  I infer that this was not as serious as the claimant now suggests.  In my judgment it is probable that this event occurred while the claimant was engaged in moving boxes, but that it was not related by him to any particular act of lifting.  He was sufficiently worried about what had happened to want to leave work, but it was only after speaking to Mr Kayre that he decided, or perhaps was advised by Mr Branche, to go to hospital.  I accept from the evidence of Mr Campbell that the claimant was probably not wholly committed to this employment, and therefore he may have seen this injury as a convenient justification not to be assertive about trying to reclaim his employment, particularly as the possibility of a claim for damages may have seemed a tempting alternative.

CONCLUSION
64.	It follows that I find that the claimant has not proved the facts alleged in paragraphs 3 and 5 of the Particulars of Claim and, subject to any further submissions the parties may wish to make, I shall conclude that accordingly there will be judgment for the defendant.  I will also now hear any consequential applications.