NO DUTY OF CARE OWED TO EXTREMELY RECKLESS FRIEND USING DANGEROUS MACHINERY: Ford v Silverstone (2015) (QBD)

Ruwena Khan

A Defendant did not owe a duty of care to a Claimant who, while helping him clear the grounds of the property, had of his own accord, attempted to unblock a wood chipper while the engine was on and lost three of his fingers…

The Facts

The Claimant and Defendant had been friends – the Claimant was helping the Defendant renovate his property.  On one occasion the Claimant was alone and attempted to unblock the wood chipper by putting his left hand inside it while the engine was running and three of his fingers were severed.

Two Diametrically Opposed Accounts

The Claimant’s case was that he had seen the Defendant do the same thing when the machine was blocked and he claimed that the Defendant had told him that the key to the wood chipper was lost, but that the key to the lawnmower could be used on it instead.  The Claimant stated that because the lawnmower key took five minutes to start the chipper the Defendant would not switch the chipper off when removing blockages.  He stated that the Defendant had specifically shown him how to use the wood chipper in this manner.  Therefore, it was alleged that the Defendant owed the Claimant a duty of care.

The Defendant’s case was that he had never lost the key to the chipper, which was kept in a safe, and that he had never used the lawnmower key to start it or even knew that it worked.  The Defendant also claimed that he would never have placed his hand in the machine with the engine running.

Judgment

The Claimant’s case was not borne out by the evidence.

The court found that:

• The key had not been lost.
• The Defendant appeared tidy and meticulous and would not have spent five minutes starting the chipper using the wrong key.The Claimant was in no sense an employee.
• The Claimant chose to work that day.
• The Claimant had decided to resume branch clearance without discussion with the Defendant.
• The Claimant had decided to use the wood chipper.
• The Claimant had decided to do something highly dangerous which he had not seen the Defendant going.
• The machine carried warnings about inserting hands without switching the power off.
• The Defendant did not owe the Claimant a duty of care.
• If the Claimant’s version of events had been accepted, then a duty of care might have arisen – but there would have been a significant degree of contributory negligence found.

Lessons to Be Learned

• A duty of care is harder to establish between friends voluntarily assisting one another without obligation.
• Undertaking work of one’s own accord, without instruction or direction reduces the likelihood of establishing that a duty of care was owed.
• Ignoring/failing to heed warnings on tools, equipment or machinery is very likely to result in contributory negligence being found in any event.
• To be blunt, acting stupidly and recklessly is highly likely to find disfavour with the court!