Liability would not have been admitted on the basis of a breach of PUWER, but the claimant may well have been able to establish liability against the employer on the basis that the defect with the tyre arose from the fault of a third party, albeit not the manufacturer.
Under the wording of the 1969 Act, even though no fault lay with the manufacturer, negligence may still have been imputed to the employer on the basis of fault of an unidentified third party (or parties), ie those who had caused the earlier impact damage.
The court may well have concluded that such damage was likely to have arisen as a consequence of negligent driving, for example hitting a kerb at speed. Of course, in these circumstances the employer would still have been able to benefit from the argument against the manufacturer under the Sale of Goods Act 1979.
Hypothetically, though, if the negligent driver who had caused the damage could be identified, both the employer and manufacturer might have had grounds for pursuing them for an indemnity, although this would give rise to interesting legal arguments with regard to foreseeability and remoteness of damage.
In practical terms, the continued existence of the 1969 Act means that, provided claimant solicitors cotton on, (which they inevitably will), in the majority of defective equipment cases, employers will still be found liable.
It will be interesting to see, however, if any cases arise in which an employer is able to avoid liability due to an inability on the employee's part to prove, to the required standard, fault on the part of a third party, or in which a culpable third party is able to avoid liability on the basis that the injury or loss was not foreseeable consequence of their negligence.
It will also be interesting to see whether the courts impose the burden of proving negligence on the part of the third party upon the employee, or whether they deem that the defect with the equipment creates a rebuttable presumption of fault on somebody's part, with the burden of rebuttal resting with the employer. Some fertile ground for test cases perhaps?
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