Factual and Procedural Background
The Plaintiff, employed as an electrician, sustained a severe brain injury due to electrocution while working at height on 25 July 2012 at a retail premises. The injury resulted from a wiring fault causing the casing of a light fitting to be permanently live. The Plaintiff, lacking capacity to litigate, proceeds via his litigation friend. The wiring fault originated from an installation carried out in 2004 by the Second Defendant's electrical contracting company. The Plaintiff was employed by Company A at the time of the accident, having transferred from a previous employer, Company B, under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The Plaintiff contends that Company A is liable for failing to detect the fault during periodic inspections in 2009 and 2010, and alternatively for any maintenance-related wiring faults. The court was tasked with determining liability as a preliminary issue.
Legal Issues Presented
- Whether the wiring fault causing the Plaintiff's electrocution was introduced at the original installation in 2004 by the Second Defendant.
- Whether Company A is liable for failing to detect the wiring fault during periodic inspections conducted by Company B prior to the transfer.
- The legal effect of the TUPE Regulations on the transfer of liability from Company B to Company A for breaches of duty occurring before the transfer but causing injury after.
- Whether the Plaintiff was contributorily negligent in the circumstances of the accident.
- The appropriate apportionment of liability between the Defendants.
Arguments of the Parties
Plaintiff's Arguments
- The wiring fault was present from the original installation in 2004 by the Second Defendant.
- Company A is liable for failing to detect the fault during periodic inspections in 2009 and 2010, which were conducted by Company B prior to the transfer.
- The Plaintiff acted reasonably and in accordance with training; no contributory negligence should be found.
Second Defendant's Arguments
- The wiring fault may not have been present at the original installation and could have arisen later during maintenance for which Company A is liable.
- Relied on testimony from electricians involved in the original installation denying the fault was introduced at that time.
- Suggested that Company A should bear greater responsibility if the Plaintiff was not operating a safe system of work.
First Defendant's (Company A) Arguments
- Contended that liability under TUPE does not extend to unknown liabilities at the time of transfer.
- Argued that Company B did not owe a duty to all employees or third parties to ensure electrical equipment was safe.
- Asserted that the Plaintiff breached the "work dead" policy by not isolating the circuit before removing the light fitting.
- Suggested contributory negligence on the part of the Plaintiff.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Martin v Lancashire County Council |
Liability under or in connection with contract of employment includes tortious liability for negligence. |
Supported the court's conclusion that tortious liabilities transfer under TUPE, including breaches before transfer causing injury after. |
| Bernadone v Pall Mall Services Group Limited & Others [2001] ICR 197 |
Confirmed that fully accrued and contingent contractual rights and liabilities transfer under TUPE. |
Reinforced the interpretation that the transferee employer assumes liability for tortious claims arising from pre-transfer breaches. |
Court's Reasoning and Analysis
The court carefully reviewed witness testimony, expert reports, and documentary evidence, including CCTV footage and electrical inspection results. It found that the electrocution resulted from a wiring fault at the junction box making the light fitting permanently live. The court weighed conflicting evidence about when and by whom the wiring error was introduced. Although electricians involved in the original installation denied making the error, the court found their evidence inconsistent and less reliable upon cross-examination.
Photographic and expert evidence showed the ballast and light fitting were original, and there was no credible evidence of later rewiring. The court concluded on a balance of probabilities that the wiring fault was introduced during the original installation by the Second Defendant's contractors.
The court then considered the liability of Company A, which had acquired the Plaintiff's employment and the inspection contract under TUPE. The periodic inspections in 2009 and 2010, conducted by Company B prior to transfer, failed to detect the fault. Expert evidence indicated that proper testing would have revealed the defect, especially in 2010. The court rejected arguments that Company B owed no duty or that the "work dead" policy absolved liability, holding that employers owe a common law duty to take reasonable care for employee safety, including competent inspections.
Regarding TUPE, the court emphasized that the Regulations are intended to protect employees by transferring all rights, duties, and liabilities, including tortious claims for pre-transfer breaches causing post-transfer injury. It relied on established case law to reject the First Defendant's argument that unknown liabilities do not transfer.
On contributory negligence, the court found the Plaintiff acted reasonably in attempting to identify a plug and socket before isolating the circuit, consistent with common practice and training. The Plaintiff was not negligent in removing the fitting without a volt stick, as this was not mandated by the employer. The court found no evidence that the Plaintiff reached beyond his line of sight or otherwise acted unreasonably.
Finally, the court apportioned liability, recognizing that the Second Defendant was responsible for the original wiring error, and Company A for failing to detect and remedy the defect. It assigned 75% liability to the Second Defendant and 25% to Company A.
Holding and Implications
The court held that both Defendants are liable to the Plaintiff for damages arising from the electrocution accident. The Second Defendant bears 75% of the liability as the party responsible for the original wiring fault, and the First Defendant (Company A) bears 25% for failing to detect the fault during periodic inspections.
The Plaintiff is entitled to recover damages on a full liability basis, with no contributory negligence found. The decision confirms that under TUPE, tortious liabilities arising from breaches of duty prior to transfer transfer to the new employer. This ruling upholds established principles protecting employees' rights in the context of business transfers but does not establish new precedent beyond the application of existing case law.