Adam Weitzman KC and Chris Canning together acted for the Claimant in the case of Mark Hemingway (a protected party) v Robena Contract Furnishings Ltd.
Mr Hemingway worked as a delivery driver. On 28 March 2018, he was tasked with transporting some industrial strip lights in a lorry. When he arrived, other workers unloaded the lights. As they did so, one of the lights fell. Mr Hemingway was hit on his head. He was badly injured. He was taken to hospital where a severe traumatic brain injury was diagnosed. He has not recovered, and he will require lifelong care.
The Defendant contested liability. HHJ Sadiq heard a 3-day, liability-only trial, at the County Court at Sheffield, between 8 and 10 February 2023. Judgment was handed down on 13 April 2023.
The issues on liability touched not only personal injury but also employment law. The first issue related to whether the Defendant employed the Claimant. It was agreed that the Claimant had initially been employed by an entity called Samuel Thomas. However, the Claimant contended that the Defendant became his employer shortly before the accident. Therefore, as his employer, the Defendant owed a non-delegable duty to him to provide a safe system and safe place of work. The Defendant’s case was that it did not employ the Claimant at the date of the accident. It said he was still employed by Samuel Thomas at that date. It admitted that, after the accident, it did then become his employer. It said that was only because it was considering purchasing Samuel Thomas, so it took into direct employment Samuel Thomas’ drivers, on a trial basis.
The Claimant’s alternative case was that, if the Defendant was not his employer at the date of the accident, by the later transaction by which the drivers were taken on by the Defendant, the Defendant inherited liability to him by operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Defendant’s case was that the trial of the delivery drivers was not such a transfer because they were not a “stable economic entity” within the meaning of TUPE.
The Court heard evidence from the Claimant (as a vulnerable witness), his wife, the managing director of the Defendant, and a health and safety advisor.
Having heard the cross-examined evidence of these witnesses, the Judge rejected the evidence of the Defendant’s managing director. The Judge found him to be an unreliable witness: he had failed to disclose relevant documents; his oral and written evidence was inconsistent; and he was evasive when giving evidence. The Judge treated with extreme caution the documents completed at his direction.
HHJ Sadiq went on to find for the Claimant on both key trial issues. He found that the Defendant was the Claimant’s employer, but, if he was wrong about that, then on the correct application of the guidance in Cheesman v R Brewer Contracts Ltd  IRLR 144 and other authorities, the employment of Samuel Thomas’ delivery drivers represented a transfer of undertakings such that TUPE applied, and Samuel Thomas’ liability to the Claimant for his personal injury transferred to the Defendant.
The Judge further rejected that the Claimant was contributorily negligent.
Directions will now be made to decide the quantum of the Claimant’s claim.
Adam and Chris were instructed by Kate Venn and Peri Baldwin of Irwin Mitchell LLP.
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