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Success in the CA for Mo Haque and compulsory mediation for CA claims under £100,000

On 17 May 2012 the Court of Appeal gave judgment in Ali Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642, allowing the Claimant’s appeal against the decision of HHJ Cowell dismissing his claim against his employer for injuring his back whilst stock-taking.

The claim was based on breach of Regulation 4 of the Manual Handling Operations Regulations 1992. Amongst other things the CA accepted the Claimant’s submissions that:

  1. The burden of proof was on the employer to show that they had reduced the risk of injury to the lowest level reasonably practicable. In practice, the burden is very difficult to discharge (and had not been discharged in this case).
  2. It was not obligatory for the employee to suggest things which the employer should have done but did not do.
  3. In terms of causation, if the employer was in breach of duty, and the injuries caused were of the type to be expected as a consequence of that breach, then the employee need do no more to establish causation. If the employer wanted to aver that the injury would have been caused in any event, the burden of proof was upon the employer. This is arguably a departure from the ordinary rule on causation.

The Court of Appeal also referred to the pilot scheme introduced on 2 April 2012 for compulsory mediation of personal injury and contractual claims for less than £100,000 where permission to appeal has been granted (please click here for details). The Court stressed that parties should heed a recommendation to mediate and the belief that a party had a strong case or that too many costs had already been incurred were not good enough reasons to refuse to mediate.

Muhammed Haque appeared for the Claimant / Appellant, instructed by Hafezis.

Click here for the judgment.

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