UK: Public Authority Liability News - December 2011

A year of change

We are now settling in to the merged firm with our new colleagues. Everything has gone encouragingly smoothly, even down to quoting our name correctly when answering the telephone!

We continue to recruit and are pleased to welcome Mary Edis as In-house Counsel. Mary was a barrister at a set of chambers we use regularly, 1 Chancery Lane, before embarking upon a career break for her children. Mary returns with much experience and enthusiasm in defending claims brought against the public sector and she will also assist us with both inquests and criminal proceedings. Mary is very pleasant and approachable and she has already fitted in extremely well.

In terms of the law, next year will bring significant changes as a consequence of the reforms brought about by the Jackson proposals. The Legal Aid, Sentencing and Punishment of Offenders Bill, a core element of the proposals, has been approved by the House of Commons and will now go to the Lords. It is to be hoped that progress there will be smooth. The claimant lobby continues to fight emotively and hard, one group terming the proposals as "Robin Hood in reverse". Others on the claimant side appear to recognise however that change is inevitable and are working constructively towards a successful implementation of the proposals. The Government's target date remains October 2012, but there may be a modest overshoot.

The reforms are not all immediately obviously beneficial, in particular the proposal that successful defendants will no longer be able to recover their costs (or QOCS as it is unglamorously called).This may lead to a temptation to make nuisance offers. The jury is currently out as to whether the changes will mean more litigation or less, however we can be confident that overall the costs of our opponents will come down significantly.

One effect of the funding will be that claimant lawyers will be even more reluctant to bring complex speculative claims where prospects for success cannot be guaranteed. The financial rewards will not justify the time expended. As a consequence, the current trickle of stress at work, education and social services claims should not increase and may even abate.

We shall of course continue to keep you fully updated with the latest news and, more importantly, our analysis of how the reforms will affect you. This is the last Public Authority Liability News for 2011, we shall return in the early spring of next year. All that remains for us to do is wish you the very best for the festive period and the New Year. Thank you to everyone for your support this year.

Where will it end?

By Tom Walshaw

There has been a storm of publicity about a recent court case which The Daily Mail branded as one "which will have massive implications". But what was it all about?

JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust (Queens Bench Division, 2011)

Introduction

It is easy to forget how far the principles of vicarious liability have widened over the last decade or so. It seems incredible but it was as recently as 1999 that in Trotman v North Yorkshire County Council, the Court of Appeal held there to be no liability on the part of the council when a teacher sexually abused a pupil in his care. It was held that the teacher was not acting in the course of his employment. Thousands who now routinely receive compensation for sexual abuse would not do so now, if the law was still as it was in the late 1990s.

Condensed history of the law:

1. Originally for vicarious liability to exist between an employee and an employer there had to be a strict relationship of employment. So, in Trotman, just mentioned, the Court said that the abuse that took place at the school was not a mode of carrying out the teacher's work. His work was to teach, not to abuse. Abusing was not a way of teaching, and therefore no vicarious liability would attach.

2. Lister v Hesley Hall Limited (2002), is the well known House of Lords authority which pushed the law wider to cover abuse. There, the warden of a boarding school had abused children in his care. His employer would have been found not liable if Trotman had been followed. However the House of Lords introduced a test of whether the wrongdoing was closely connected with the duties of the job. There the job was to supervise, and the abuse took place as a result and connected to the doing of that job. Liability attached.

3. In Viasystems v Thermal Transfer (Court of Appeal, 2005) the requirement of a direct connection between the employer and the employee was lost. A fitter's mate, supplied by one party, was working under the supervision of another party. It was held that the supervising body could be vicariously liable for the actions of the fitter's mate when he negligently caused the flood of a factory.

So what did this new case do?

In JGE, the question was whether the priest was an employee of the diocese, or not. In previous cases in which it was sued, the Roman Catholic Church had not challenged the principle that it was the employer, just that they were responsible for the abusive acts of their admitted employee.

The basis of the church's defence here was that it did not employ the priest because:

1. There are no terms and conditions of employment in the traditional sense, and there is no control over the priest once appointed. The priest is free to conduct his ministry as he sees fit, and the bishop's role, if he becomes involved at all, is merely advisory, not supervisory. The bishop has no power of dismissal; dismissal would have to be effected through the Church in Rome.

2. Priests do not receive any financial support from the bishop/diocese. Each parish carries responsibility for generating sufficient income to support its own priest. That is mainly from the collection plate.

3. Catholic priests would be considered as a holder of office, rather than an employee in the legal sense. There is no formal contract of employment.

However, the judge, in this clear first instance decision, found that despite the looseness of the arrangement the diocese was the employer of the priest.

The judge introduced a new test of employment as follows:

"The activities of the priest had been set in motion by the defendant in pursuance of a relationship into which the defendants had entered for their own benefit. It was their empowerment (ie, appointment) of the priest which materially increased the risk of sexual assault, the granting of the power to exploit and misuse the trust which the defendants had granted to him. It was the defendants who had introduced the risk of wrongdoing."

So to condense further, the test becomes whether the defendants have created risk of harm to others, or set in motion events that led to the abuse.

What are the implications of this?

The problem is that this most recent extension in the law, whereby the question of employment is decided on the basis of the creation of a risk of harm, and the setting in motion of a relationship which is a benefit to the defendant, may usher in new categories of claims. Local authorities, for example, are currently not vicariously liable for the acts of foster parents, but those foster parents are appointed by the local authority, and it can benefit the local authority if they no longer have to have a child in say one of their care homes. Will it be long before vicarious liability attaches in that situation? And, if the law now encompasses unpaid appointees, then where will liability end?

Compare and contrast!

By Wendy Mayes

The two following Court of Appeal cases show the differing approaches taken by judges in tripping claims in respect of the financial resources of highways departments, and in this article we try to explain who decided what, and why.

First off is ... Josie Lawrence v Kent County Council (Court of Appeal, 2011)

The claimant fell on ...

... a manhole cover that was protruding by around 15 millimetres above the surrounding pavement. The sole consideration at the trial was whether the defect constituted a hazard that created a reasonable foresight of harm and therefore a breach of the duty to maintain the highway, contrary to Section 41 Highways Act 1980.

This trip of 15 millimetres, or just over half an inch in "old money" was held by the judge at first instance to constitute a breach of Section 41. The judge in doing so rejected the evidence of the Council's Highways Inspector who said that he had thought the area did not require attention or repair, and preferred the evidence of the claimant and her relative who said that they thought the area was dangerous.

Unsurprisingly the Council appealed this finding.

The appeal

Mr Justice Eady, a senior High Court judge, heard the appeal. He went back to basics and immediately rejected the lower judge's approach, and said that you could not decide such cases on the evidence of the claimant and a relative. He simply looked at the photograph of the defect and the surrounding pavement. He said that he thought it was exactly the kind of defect that you would expect to find when going down The Strand, and that it was part of what a reasonable pedestrian should have to put up with. He said he was mindful of the fact that local authorities had finite resources, and that they should not pose expected to repair everything. To require that would pose an unreasonable financial burden on society and the Council. Mr Justice Eady, ever the gent, apologised to the claimant, but found against her on the appeal. The result for the local authority was clearly the correct one, and it was interesting that the judge said that he felt that he would like to have known more about the resources available to the Council, so he could be doubly sure that he had made the right decision.

So far so good, we now move to ...

Wilkinson v City of York Council (Court of Appeal, 2011)

The claimant was ...

... cycling in York and the front wheel of her bike hit a pothole in the carriageway. The local authority's case was that, like Lawrence, there was no reasonable foresight of harm caused by the defect, and therefore no breach of Section 41 of the Highways Act. They also went on to argue that even if there was, then the Council had a defence under Section 58 of the Highways Act, because they had a reasonable system of inspection.

At the trial, the defendant's main witness was the principal engineer for highways, and the evidence came out that the pothole in question was one and a half inches deep, and 12 inches across. This was deemed to be a hazard, and create a reasonably foreseeable risk of harm.

So was a Section 58 defence established? Had the authority taken reasonable care to secure the highway? Was there a reasonable system of inspection? The area was subject to yearly inspections, and was last inspected ten months prior to the claimant's accident.

According to the guidelines in the Highways Code of Good Practice, the local authority should have a clear carriageway hierarchy, and roads should be inspected according to that. It became apparent in the course of the trial that, according to the Code of Good Practice, the road where the accident took place should have been inspected every three months, whereas in fact it was put in the category requiring inspection every 12 months. The judge asked the Highways Inspector why the categorisation took place, and the witness, probably rather caught on the hop, said that it was due to "financial and manpower resources".

The judge at first instance found that the frequency of inspection was not sufficient, and that a more frequent system would have picked up the defect, and therefore the local authority was liable. The local authority appealed, and the circuit judge concluded that insufficient account had been taken of the Highway Authority's financial considerations, and said that the Section 58 defence should succeed. The claimant then appealed to the Court of Appeal.

The appeal

The Court concluded that the Code gives compelling guidance, and the road where the accident took place should have been inspected every three months. If so, the defect would have been picked up and the accident avoided. The guidance suggested inspections every three months, and the only evidence from the Council as to the reason for having less frequent inspections was that of the Highways Inspector, namely "financial and manpower resources".

The judgment of the initial trial judge was restored.

Analysis of the cases: one judge seems to take into account financial considerations, and the other does not? What is actually going on?

To make sense of this you have to look at the two parts of the Highways Act. Section 41 places a duty on the local authority to maintain the highway. If it does not, and for example a pothole forms, then there is a breach of that duty. Mr Justice Eady decided that in considering whether there had been a breach of Section 41, he was entitled to look at the financial resources available to the authority. Arguably, if there were plenty of resources for highways repairs, then you could expect minor defects to be classed as dangerous and remedied. If however a breach of section 41 is found to have taken place, then Section 58 in the Highways Act applies, namely that the local authority still will have a defence if it can show that it took such care as in all the circumstances was reasonably required to make the highway safe, usually by having a system of inspection. Here the Court of Appeal said that financial considerations alone would not be a reason for decreasing the number of inspections.

It is a fine distinction, and difficult to resolve.

But really the problem in Wilkinson was that the witness was caught on the hop, and if the local authority does have to reduce the frequency of its inspections, then a detailed explanation by way of witness statement needs to be submitted, including reasons for changing frequency of the inspections, policy decision supporting that, details of any risk assessment balancing the public and private interests etc. And make sure you get the right judge!

Treading carefully?

By Geraldine Cumberbatch

A recent judgement caused some concern that courts were imposing tighter standards on councils as to when they had to intervene to repair a defective piece of highway.

Dalton v Nottinghamshire County Council (Court of Appeal, 2011)

What was the accident?

The claimant, Mrs Dalton, broke her leg very badly on 20 October 2006, when she stumbled on a loose paving block which moved under her as she stepped on it. It was also proud of its neighbours. The block in question was situated in a pedestrianised alley in Beeston, Nottinghamshire. In Beeston a pedestrian area is known as a "twitchell", rather exotically.

After her accident, the claimant's husband, Mr Dalton, returned to the accident location diligently, taking photographs on four separate occasions. The area never changed appreciably in all of those visits. All the while Mr Fearns, the Council's Highways Inspector, was carrying out regular scheduled highways inspections, and at the trial, his evidence was that he had noticed the defective paving brick, stepped on it and examined it a number of times prior to Mrs Dalton's accident. Indeed it had become, arguably, one of the most monitored bricks in Nottinghamshire! However he considered that the brick was reasonably safe and it was not until an inspection six weeks after Mrs Dalton's accident, but in ignorance of it, that Mr Fearns carried out a further inspection during which he decided that the paving block was now so dangerous as to require repair. The repair order for a category one defect, representing an "immediate or imminent hazard" was then raised.

So what was the defence?

Put simply, the claimant alleged that the Council was in breach of Section 41 of the Highways Act 1980 because there was a repairable defect present. The Council in turn raised a Section 58 defence, saying that they had in place a reasonable system of inspection. They pointed to the fact that Mr Fearns visited the area regularly, and had showed that careful tabs were kept on that part of the pavement, to monitor its state.

At the trial, Mr Fearns put particular emphasis on the fact that he always looked carefully at that part of the twitchell because it was used by many members of the public, and that he did put his foot on that block prior to the accident date, and that there was nothing wrong with it.

What went wrong with the defence for the council?

The judge decided that the fact that a category one repair order was raised six weeks after the accident meant that the area was clearly unsafe at that time. Mrs Dalton's husband had repeatedly been to examine the area over many weeks, having photographed the actual stone, and his evidence was that the area of the accident had changed little between the date of the accident and the date of repair. The judge preferred Mr Dalton's evidence, decided that the Highways Inspector must have been mistaken when he had judged that the brick was safe on previous inspections, and said that the slab had been dangerous for a long period of time.

Why did the council appeal?

The Council believed that it was wrong of the judge to say that the slab needed repairing, when it was below the intervention level. The intervention level was half an inch. The Council argued that the judge had simply assumed that because their Highways Inspector had ordered a repair, the pavement must have been dangerous. They said that the judge should have looked at all of the evidence, and not just preferred that of the husband.

But the Court of Appeal held that the judge had been correct, that there was plenty of evidence that the area was dangerous, and had been for a long while. It was not the height of the trip alone that was the problem, it was the fact that it was wobbly too.

So what was all the fuss about?

As said at the outset, there were concerns about this case, and what was picked up on was the fact that the height of the trip was below the intervention level, yet the Court of Appeal decided that a repair was needed. But when carefully looked at, it can be seen that the reason the Council lost the case, was because the Court of Appeal decided that the area was dangerous by a combination of the height of the trip and the wobbliness of the stones. So, in fact, this is a case that did not change the law at all.

Falling tree branches: tragic accident or owners' responsibility?

By Nick Bathurst

Two recent cases highlight the difficulty that a claimant may face when trying to bring a claim for damages caused by falling branches. Although the law is clear that a person responsible for land on which a tree is located owes a duty of care to individuals injured by falling branches, we examine where claims can be successfully defended.

Breach of Duty – Bowen v National Trust (High Court, 2011)

Background – a real life tragedy

One child was killed and three others seriously injured by a falling branch during a primary school trip, when their class sheltered under a 180-year-old beech tree in heavy rain at Felbrigg Hall and Gardens in Suffolk. The tree was a little way from the path, and the group had wandered over to it for shelter when it started to rain. The tree had been inspected twice by trained National Trust tree inspectors, and tell-tale signs of damage to the branch noted but not considered significant. In addition, the inspectors operated under a National Trust instruction which set out three risk zones (high, medium, low) depending on the proximity of the tree to areas of frequent public use like a path. As the tree in question was located in a medium risk zone, ie away from the path, the inspectors did not consider further investigations or remedial works necessary.

The claimants' case

The parents of the children brought a claim against the National Trust alleging breach of the common duty of care in section 2 Occupiers' Liability Act and breach of duty in tort at common law. The claimants argued that the inspectors had failed to take reasonable care when making their inspections. The claimants also alleged that the National Trust's instruction was inadequate as it might mislead the inspectors into assessing risk too biased by the basis of location.

The defendant's case

The Trust argued that had the tree been located in a high risk zone then the inspectors would have undertaken a detailed inspection due to the signs of potential damage; however, in this instance, the tree was in a medium risk zone and thus further inspection was not deemed necessary. The National Trust argued that even though there was a possibility of a branch falling in a medium risk zone, this was not enough to warrant a detailed inspection, tagging and remedial works.

The decision

The judge held that a landowner is not under an obligation to ensure the total safety of its visitors, merely to take reasonable care to provide reasonable safety. Although the tree inspectors had made a judgment which was subsequently proven wrong, the judge held that they had used all the care to be expected of reasonably competent persons doing their job. The judge also added that "risk assessment in any context is by its very nature liable to be proved wrong by events, especially when ... judging the integrity of a tree is an art not a science". Irrespective of the disastrous consequences of the tree inspectors' decision, it could not be said that they were negligent or in breach of their duty. As such, no legal liability attached to the National Trust.

Causation – Micklewright v Surrey County Council (Court of Appeal, 2011)

Background – another personal tragedy

The first instance decision was reported in our spring edition of this newsletter. To recap, the claimant's husband was killed by a falling oak tree branch as he unloaded their car at the side of the road. In the immediate aftermath of the incident, the Council's employees attended the scene, chopped up and disposed of the majority of the branches. The following day, the Council's inspector visited the scene to take photographs of what was left but did not see any signs of decay.

A claim was brought against the Council which, as the Highway Authority, owned and had responsibility for the oak tree in question.

The first instance decision

Stated that the Council did not have an adequate system of inspection in place for its highway trees. In addition, there were several evidential issues including the fact that the Council's employees had disposed of most of the evidence on the day of the incident. The judge accepted that this presented a problem for the claimant and in such circumstances the Court should adopt a "benevolent" approach to the claimant's evidence.

Despite these issues the claim against the Council failed on the grounds that the defect in the tree would not have been detected even if there had been a reasonable system of inspection in place. A reasonable inspection, the judge held, would have been "a quick visual inspection carried out by a person with a working knowledge of trees as defined by the HSE".

The appeal

The claimant appealed on the basis that a benevolent approach had not been taken by the trial judge to the claimant's evidence. The Court of Appeal refused to interfere with the trial judge's decision and maintained that the lower court had heard the available evidence and the experts and that the judge had directed himself to the law correctly.

The Court of Appeal agreed with the trial judge that consideration had to be given to (i) what sort of inspection would have been required (ii) had such inspection been carried out, would it have revealed anything warranting a more expert inspection, and (iii) would that inspection have resulted in the removal of the branch. The Court of Appeal agreed with the trial judge that the material defect would not have been revealed upon reasonable inspection, as described above.

What can we learn?

  • We believe both of these cases represent common sense decisions for owners of land containing trees and of course to local authorities.
  • The occupier of land is not under a duty to ensure the safety of visitors.
  • The duty which exists to inspect trees is to take such care as is reasonable in the circumstances. If a reasonable inspection is not conducted, occupiers and local authorities will still only be legally liable if causation can be proved.
  • It is vital to ensure that clear written instructions on tree inspections are produced, setting out: which members of staff are competent to assess trees, minimum standards of inspection, when risk assessments are required, the records to be kept and the appropriate remedial action to be taken if necessary. The court saw all these factors as being in the National Trust's favour in Bowen.
  • Although these cases are incredibly sad, the correct application of the law is still necessary.

How significant?

By David Wiggs

The Court of Appeal has recently handed down their decision in this important case on limitation in disease cases.

Hoey v Sir Robert Lloyd & Company Ltd & Others (Court of Appeal, 2011)

Background

As is well known, there is a limitation period of three years for personal injury claims. It runs from the date of the injury being caused or the claimant realising they have been injured, whichever is later. So, if you are exposed to asbestos it can take years to realise that you have been affected. What this case looked at is how clearly you have to be aware you have been made ill, or that you have suffered a "significant injury" for the three years to start to run.

The facts

The issue before the Court of Appeal in this case was to decide when the claimant should have first appreciated that he had suffered a significant injury.

The claimant, Bernard Hoey, was a 79-year-old man who when working for the five defendant companies in various capacities between about 1947 and 1992 had been exposed on numerous occasions to asbestos. In the 1980s he developed chest pains and was referred by his GP to a chest clinic.

The relevant points are as follows:

  • In early 1984 and again in the autumn of 1985, Mr Hoey had suffered chest pains. He was referred to a chest surgeon by his GP, X-rays were taken to eliminate various causes and pleural thickening was seen on the X-rays, but not thought to be the cause of his pain.
  • By January 1986, Mr Hoey had been pain free in his chest for about four months but had been advised of the possibility that he had developed mesothelioma as a result of exposure to asbestos at work. Mr Hoey did not in fact develop mesothelioma and this concern went away.
  • Pleural thickening and pleural shadowing had been present on X-rays but Mr Hoey had not been told about the implications ie that he might get ill from then and the doctor had taken the view that they did not constitute a significant injury.
  • His condition improved, and in September 1987 he was discharged from the chest clinic.
  • His breathing difficulties started again later, and in August 2007 he was referred to hospital. He was diagnosed with a significant injury in 2008.

Proceedings were issued against the former employers in August 2010 and the expert evidence was that it was the pleural thickening in its early stages, which would have caused the chest pain in the mid-1980s.

The judge at first instance held that Mr Hoey did not know until 2008 that he had suffered a significant injury and the judge therefore held as a preliminary point that the proceedings were not statute barred, having been commenced within three years of the claimant realising he had suffered a "significant injury".

The appeal

The issue was appealed by the defendants and came before the Court of Appeal. In the judgment handed down on 30 September 2011, Lord Justice Jackson agreed that the claim had been properly commenced within three years of the date of knowledge. The Court of Appeal agreed that what Mr Hoey had suffered during the 1980s had been a transient bout of chest pain and that he did not know he suffered a significant injury until 2008.

What we can learn

In dismissing the appeal, the Court of Appeal have in effect maintained the status quo and will not criticise a claimant such as Mr Hoey who has sought medical advice promptly and appropriately. It is not the claimant's fault if the medical advice obtained has proved to be incorrect or flawed to any degree.

This decision serves to confirm that the key questions when considering a possible limitation defence remain as before:

  • When did a claimant first have a significant injury?
  • When did the claimant know or ought to have known that he had a significant injury?
  • When did a claimant know or ought to have known when such injury was attributable to occupational exposure?

School's out: no duty owed by school for swimming accident

By Rebecca Wilson

In this case Essex County Council successfully applied to strike out an allegation that it owed a non-delegable duty of care to a claimant injured during a school swimming lesson.

Annie Woodland (by her litigation friend Mark Woodland) v Swimming Teachers Association (1), Beryl Stotford (2), Deborah Maxwell (3), Essex County Council (4), Basildon County Council (5) (Queens Bench Division, 2011)

The facts

The claimant was a 10-year-old school pupil at a school in Essex, for which Essex County Council were the Local Education Authority. She attended a school swimming lesson in the summer of 2000 at the Gloucester Park Swimming Pool in Basildon with the rest of her class. The pool was run by Basildon County Council.

The swimming lesson was supervised by a swimming teacher in the pool and a lifeguard at the side of the pool. Neither the teacher nor the lifeguard were employed by the claimant's school but by a third party, Beryl Stotford, T/A Direct Swimming Services, with whom the school had contracted.

The claimant was in a group of better swimmers, who were taking part in an exercise where they were diving into the pool at the deep end, swimming to the shallow end and then repeating the exercise.

At some point during the lesson, the claimant was noted not to be swimming anymore but to be hanging vertically in the pool. Unfortunately, she suffered a serious brain injury through near drowning.

The claim

Proceedings were brought on behalf of the claimant by her father in negligence against Ms Stotford, the lifeguard, the Swimming Teachers' Association, Basildon Council, who ran the pool and also Essex County Council as the Local Education Authority responsible for the school.

It was alleged against Essex that it owed a non-delegable duty of care to the claimant in the capacity of being in loco parentis, which if accepted would mean that Essex was potentially liable even though the accident had occurred outside of school in circumstances where the school was not supervising.

Essex accepted that it owed a duty to take sure care as would be taken by a reasonably competent parent and to take reasonable steps to ensure that independent contractors it engaged were reasonably competent. However, it denied that it owed a non-delegable duty of care and applied to strike out that element of the claim.

The decision

HHJ Langstaff sitting in the Queens Bench Division of the High Court agreed with Essex. He noted that no known legal authority had gone so far as to hold that a school owes a duty to ensure that others take reasonable care of a pupil so that it is responsible for any want of care on their part. He carried out a useful review of the authorities and noted that the case law was against the imposition of such a duty and that to recognise such a duty would be considerable extension of liability in this area. There was no policy reason that would support such an extension.

Comment

  • This is an important confirmation of the limited extent of the duty owed by schools and local authorities, when caring for children. The only duty owed by those acting in loco parentis is that taken by a reasonably prudent parent, and to take reasonable care in selecting others who may look after the child.
  • This claimant is suing a range of parties, and although the action against Essex is at an end, the other claims continue. The Court was not faced with an "all or nothing scenario", and this may have persuaded the court to take a more robust approach to the claim against Essex.

Personal protective equipment: how wet does a claimant have to be to succeed?

By John Goodman

This case is a useful examination of just how harsh the courts continue to be on defendants in Employers' Liability cases.

Spalding v University of East Anglia (High Court, 2011)

Background

The claimant was a maintenance operative for the University and was called to a leaking radiator in the University library.

When he got to the radiator it was dripping but not pouring out water. In order to repair it he had to lie on the floor in an awkward way. The carpet was soaking wet and he thought he might be there for some time. So he got some plastic bin bags and covered the carpet with them to avoid having to lie down and get his clothes wet.

Having repaired the radiator he tried to get up but it all went horribly wrong. He slipped probably due to the bin liners and fell heavily, damaging his face and teeth and suffering a minor whiplash injury.

The claim at trial

The claimant argued that he should have been provided with waterproof clothing for a job such as this in breach of Regulation 4 of the Personal Protective Equipment at Work Regulations 1992. Had he been provided with such clothing he would have had no need to rely on the makeshift bin bags.

The claimant also argued that the defendant should have undertaken a suitable and sufficient risk assessment including addressing the risk of getting so wet that the employee would need waterproof clothing.

The judge found that the employer ought to have provided some sort of mat or mattress or some form of protective clothing. And, crucially, that this was a matter of health and safety, not just comfort, because there was a foreseeable risk that a man in wet clothing may suffer some sort of an injury, such as catching a cold!

The claimant succeeded at trial with 50 per cent contributory negligence.

Appeal

The defendants appealed the judgement on the grounds that neither the PPE Regulations nor the Management Regulations were engaged at all. Alternatively, if they were engaged, they were not breached. The defendants argued that there was never any reasonably foreseeable risk of injury to the claimant as opposed to mere discomfort in having to lie on a wet and sodden carpet to repair the radiator, even for an extended period. So there was no risk to the claimant's health or safety sufficient to engage the Regulations.

The appeal judge accepted that there was indeed an obvious risk of some adverse effect on the claimant's health through having to remain in sodden wet clothing for a period of several hours. So he rejected the defendant's principal argument that there was no foreseeable risk of injury. The harm was not so trivial that it could be ignored.

Having accepted that point, he also accepted that the trial judge was entitled to criticise the risk assessment for failing to address such a risk and provide a suitable mat or clothing to deal with it.

The defendant's appeal was therefore dismissed.

Conclusions: what can be learned?

It is difficult not to have sympathy for the defendants in this case. They must have thought that the accident was pretty far fetched to be foreseeable: the claimant slipping on a wet bin bags which he had put down to deal with the sodden carpet. There was no real evidence that operatives had used bin bags for this purpose in the past. But instead they were wrong footed by the claimant's lawyers who focused not on the bin bag but on the lack of waterproof clothing or protective mat.

This case shows how difficult it can be to fight and win Employers' Liability claims even where the accident is somewhat far fetched. It shows that the risk assessment process has to involve a far reaching analysis of all realistically possible risks using a fair degree of lateral thinking.

The defendants should apparently have appreciated that plumbers may get completely soaked when undertaking repair work and may therefore need access to waterproof clothing, despite the fact that on a common sense basis it is difficult to believe that plumbers really carry waterproof clothing with them and that the ambit of an employer's duty extends this far. All in all, following the claimant's successful appeal in Threlfall v Hull City Council (see our EL Regulations pack) this case shows that employers need pretty watertight risk assessments in order to defend such PPE claims – if you excuse the pun!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.