Employers' liability

Two recent decisions in employers' liability cases, albeit both at first instance, suggest that the tide is turning and that courts are becoming more willing to accept that an employee must take responsibility for his or her own actions, even in cases where there may be a technical breach of statutory duty. The court also gave useful guidance about the requirement for risk assessments in situations involving small 'family' type businesses and the extent to which an employer can rely upon experienced employees.

Breach of duty not causative

In the first, Peter Scott v Process Mechanical Ltd (Bradford County Court, 2 November 2006), Mr Scott was employed by the defendant as a mechanical engineer and had been since about June 2000. In January 2004, the company moved premises and two large and heavy steel benches needed to be moved from the yard into the workshop. The managing director made arrangements to borrow a forklift truck to move the benches into the workshop; once in the workshop they were to be moved manually by a number of employees, including the claimant. The accident circumstances were in dispute but, in summary, the claimant's case was that the first bench was placed in the workshop by the forklift truck and he and the managing director pushed it across the floor while the second bench was brought in. Scott found himself in a gap between the two benches. He tried to push the bench along the floor but in the course of doing so ruptured his Achilles tendon.

It was suggested, for the first time in examination-in-chief, that he panicked and was in fear of the bench being pushed into him by some racking also being delivered by the forklift truck. Under cross-examination, he agreed there was no prior suggestion by him of any fear or urgency and while the claimant denied making this up to try and explain why he tried to move a bench that he knew to be heavy on his own, the judge rejected his evidence in that regard.

The judge considered the alleged breaches of the Manual Handling Operations Regulations 1992 and particularly reg 4, dealing with the need to avoid employees having to undertake manual handling operations that involve a risk of their being injured where reasonably practicable and, where it is not, the need to undertake a suitable and sufficient assessment of such operations and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.

It was accepted by the defendant that the movement of the benches was a manual handling operation for the purposes of the Regulations. It was also accepted that no risk assessment was carried out in relation to the movement of the benches and that the benches were heavy and awkward to move. The defendant contended that an alternative method, such as a pallet truck was not considered necessary in view of the number of people (five) available to move the benches. The judge held that the defendant had approached the matter in the wrong order and that the managing director should have considered whether it was reasonably practicable to use a pallet truck or skates first before the 'man force' method was used. In so doing, the defendant had failed in its statutory obligation under reg 4(1)(a), however, the judge held that not withstanding there was a breach, it was not causative of the claimant's injury. The claimant had accepted in evidence that he knew the benches were very heavy and that he could not move them on his own. Having rejected his evidence as to there being any urgency in needing to move the benches, the judge held that there was no reasonable explanation for his attempting to do so on his own. The claimant accepted he could have just climbed out of the space, but at the time 'went for the easiest possibility' and on that basis he was held solely responsible for the accident and the injury he suffered.

Duty to carry out a risk assessment

The second case, George Sharp v Elnaugh & Sons Ltd (Colchester County Court 18 December 2006), involved a 63-year-old electrician who fell from an unfooted ladder. The claimant had worked as an electrician for more than 40 years and the defendant was a family business who had been electrical contractors since 1911. Mr Sharp had carried out work for the defendant on a self-employed basis from 1991, but since 1999 he had become a full-time employee.

On 15 January 2003, the claimant was sent to a customer's premises to respond to report that three overhead heaters were not working. There was a dispute on the evidence as to what happened once the claimant got there, but, in summary,the ladders he had with him were not long enough and he borrowed a set of ladders from the customer, who offered to foot the ladder for him. The offer was accepted. The claimant realised that the power to the heaters was still on and the customer offered to go and switch it off. Again that offer was accepted and while he was away, the claimant fell from the ladder and was injured.

The claimant alleged various breaches of the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998, as well as various allegations of negligence, including failing to carry out any or any adequate risk assessment; failing to advise the claimant that a ladder was required; failing to provide any or any adequate ladder or working platform for the claimant to work on and failing to take any or any reasonable care for the claimant's safety. It was not alleged that the ladder borrowed from the customer was defective in any way.

The claimant accepted that taking safety precautions was part and parcel of the job and that he had 40 years' experience. He said that he would probably have gone up the ladder even if the customer had not been there. He also accepted that he was aware that the ladder should have been footed or secured.

Having heard the evidence, the court held that the immediate event that led to the fall and injury was the fact that the claimant climbed back up the ladder while the customer was momentarily out of the room and the ladder slipped because there was no one to foot it. The immediate cause of the accident was therefore the claimant's lack of care for his own safety.

On the question of the failure by the defendant to carry out a risk assessment, the court held that although it was clear that the defendant carried none out, it was not causative of the accident. The defendant expected each electrician attending a job to assess the nature of the work to be carried out, the equipment they would need and the precautions they would need to take. It argued that if someone from the company had to visit every premises to carry out a risk assessment before the electrician began work it would be completely uneconomic and an unnecessary duplication of labour, since in the case of some repairs, until some investigation had been made by a qualified electrician, one could not say what work needed to be carried out. The court accepted this was a sensible arrangement and held on the facts of this case, that even if a preliminary risk assessment had been carried out, no further information or safety requirement would have been identified which was not recognised by Mr Sharp on the job and the absence of risk assessment by senior management of the defendant would not have made any difference to the outcome.

It was held that there is no strict civil liability upon an employer to carry out a risk assessment in the case of every job that an employee may undertake. Having regard to modern business practice, it may be a breach of common law duty not to do so in some circumstances, but the court took the view that the present matter was not such a case. The court held that it must be reasonable for an employer to be able to take account of the knowledge and experience of his employees who have trade skills to make a preliminary assessment when visiting customers' premises of the likely requirements in respect of health and safety before work is carried out.

Breach of the Provision and Use of Work Equipment Regulations 1998 was not established, on the basis that it was not alleged that the ladder was defective in any way, nor was the allegation of negligence based on the failure to advise the claimant that a ladder was required. Again the court held that it was reasonable to expect an experienced electrician to make his own assessment on site of what equipment he required.

The employers' liability insurers made no offers to settle the claim at any stage in either of the cases and while each case turns on its particular facts and insurers must, of course, recognise that the quality of the evidence given on the day can add weight to the claimant's case, both cases show that a sensible attitude is being taken in cases of this nature.

Reassurance for insurers

Insurers should feel more confident about standing their ground and taking cases to trial, where they believe the claimant was the author of his own misfortune, as these cases show that the courts will differentiate between breaches of duty and causation, something claimant's solicitors still seem to find difficult to accept. The sting in the tail for the claimants in both cases was that they were proceeding with the benefit of a conditional fee agreement and the defendant insurers will therefore recover their costs of the action.