Interim payment

Berry v Star Autos Ltd and Ors [2011] EWCA Civ 1304; [2011] WLR (D) 327; TLR 10 November 2011

The action had been brought on behalf of the claimant, Donald Berry, a crane operator, by his litigation friend and wife, Carol Berry, against his employer, Star Autos Ltd, a music festival organisation and promotions company, Kendal Calling Ltd; Ashtead Plant Hire Co Ltd; and Piper Event Services, a health and safety management company engaged by the second defendant, alleging failure to provide a safe system of work, negligence, and breach of the Electricity at Work Regulations 1989 (SI 1989/635), in respect of an accident which had occurred in July 2010 when the claimant had been electrocuted and severely injured in the course of operating a crane when delivering accommodation units to the site of a music festival in Lowther Park near Penrith, Cumbria as a result of either the crane or a unit having come into contact with a live overhead power cable. In July 2011 the claimant applied for an interim payment to fund the cost of his current 24-hour specialist rehabilitation care against the first, third and fourth defendants (which were insured) but not the second defendant (which was not). The judge held that raising a crane and a portakabin under a live power cable was an unsafe practice and thus an unsafe system of work, that there had been breaches of regs 4 and 14 of the 1989 Regulations, that since there was a dispute between the first and third defendants as to which was the claimant’s employer or the person in charge of the claimant for the purpose of the 1989 Regulations he could not determine which of them would be liable to the claimant but he was satisfied that one of them would be held liable, that the requirement of alternative liability in CPR r 25.7(1)(e)(i) was therefore met, and that the requirements of r 25.7(1)(e)(ii) were satisfied because all the defendants against whom the application for interim payments was made were insured. He accordingly made orders for interim payments against the first and third defendants The third defendant appealed on the grounds that (i) it was possible that neither the first nor the third defendant would be found liable; and (ii) CPR r 25.7(1)(e) only applied if all the defendants to the action were insured, which was not the case.