Note: The aim of this section of the web site is to illustrate the way the civil courts interpret ‘duty’ responsibilities.
The duty to conduct a (full and sufficient) Risk Assessment
In Ealing Borough Council v Kentucky Fried Chicken (30 July 2002), the fast food chain was successfully prosecuted for a number of breaches relating to inadequate protection of staff against violent attacks by customers. The Court found that had they carried out a specific Risk Assessment for Violence, they would have appreciated that the risk of robbery warranted such protection.
In the Scottish case of Collins v First Quench Retailing Limited (31 January 2003), an Off Licence manager, following an armed robbery at the store, claimed her employers were at fault for failing to provide her with adequate protection. Although the term risk assessment was not mentioned directly in the judgement, the judge considered what the risk was and, effectively, what control measures should have been in place.
Provision of ‘health risk’ information to employees
In Waugh v London Borough of Newham Council (2002), a teacher who had been assaulted by a pupil successfully claimed that their employer had, by omitting to warn a pupil escort about a child’s history of challenging and dangerous behaviour, failed to minimise the risk of injury.
In February 2004, Oxfordshire County Council were ordered to pay £230,000 compensation to a teacher following the council’s failure to inform her about a pupil’s history of attacks. It would have been a lot more if she hadn’t told the youth to “shut up”. The court felt that by doing so, the teacher had contributed significantly to the severity of the outcome and consequently, the award to her was reduced by twenty five per cent!
In October 2007, at Bournemouth County Court, Dorset Healthcare NHS Trust were ordered to pay nearly £5,000 compensation to an unnamed healthcare assistant who had been injured in an incident at work in April 2003, when he tried to help a colleague being attacked by a patient.
The man had been working at the Kings Park Community Hospital which cares for people suffering from dementia, Alzheimer’s disease or similar conditions. Patients come in for periods of time when they are having bad spells or to provide respite for their usual carers. He had not been told by his employers that the advice on how deal with this particular patient was to leave him alone if he started becoming aggressive. The court found that his employers should have made sure he was aware of this advice and that, if they had done so, the incident could have been avoided. The employee was put at risk by his employer because they failed to tell him about the specific dangers of working with this individual. These risks were clear and preventable.
In December 2008, London Borough of Newham Council paid £275,000 in an out-of-court settlement to another teacher, Colin Adams, aged 50, who claimed compensation following an assault by a 12 year old pupil that took place in 2004 at Kingsford Community School in East London. Apparently, the boy had been misbehaving in another teacher’s class and Mr Adams, as head of department, had gone to his aid. He ordered the boy to leave but the pupil refused. When Mr Adams then left the room he was attacked by the boy from behind. The boy had a history of violence, having previously attacked pupils and a security guard at a library opposite the school but, significantly, staff were not warned about the danger.
Mr Adams said: “If I had known this student had had a history of violence I would never have turned my back on him.”
Provision of a safe system of working
On 14 June 1998, whilst was employed as a health care assistant with the Bradford Community Health NHS Trust at the Kestrel unit of Lynfield Mount Psychiatric Hospital in Bradford, Claire Cook was assaulted by a patient who had a history of behaving violently.
She complained successfully at the High Court, (Leeds District Registry) that her employers were guilty of negligence, in so far as, they had placed her unnecessarily in a position where there was foreseeable risk of injury to her.
The judge, Mr Recorder Burrell QC, held that the situation was one where her presence near to her assailant at the time of the assault was unnecessary and that the standard of care required in providing a safe system of work in these particular circumstances required all persons not immediately engaged in the minding or observing, or caring duties to be put in as safe a position as possible, i.e. not subjected to close proximity to highly dangerous and unpredictably violent individual unless it was unavoidable.
Subsequently, in an appeal heard on Wednesday, 23 October 2002 at the Royal Courts of Justice, Bradford Community Health NHS Trust invited the court to reverse the earlier decision by Mr Recorder Burrell QC. The Appeal was dismissed.
Inadequate training – arrests
In 2007, Gerard Darlington, a security officer injured during a burglary at Manchester University was awarded £13,000 compensation in an out of court settlement.
The security guard had suffered a broken collar bone and finger during a burglary in a campus launderette.
His claim was supported throughout by his trade union UNISON.
Mr Darlington worked as a Security Supervisor for the University of Manchester and had been employed by them for 26 years.
He was working the night shift when a report came in that there were noises heard in the launderette in Moseley Road, Fallowfield.
There had been a few recent burglaries and it was known that offenders carried tools to break into the machines as this was their preferred method of gaining entry to the cash boxes.
Mr Darlington, aged 48, arrived on the scene with two colleagues and following a chase, managed to detain one of the men.
He said: “A fierce struggle broke out and the man became aggressive and abusive and was hitting out at us. Whilst we were waiting for the police to arrive, I was trying to calm him down but he was thrashing around. As a result, I fell on my knees and hands and he fell to the floor landing on my right side. I was covered in blood. The police had to struggle with him to handcuff him and eventually took him away. I was taken to the Manchester Royal Infirmary A&E Department where they confirmed that I had broken my collar bone and my finger, and fractured my right radius and humerus; I also injured my knees, back, neck and shoulders. We were actively encouraged to pursue and apprehend offenders as shown by the many commendations from previous incidents that I have received from the University. The problem however was that we never received adequate training to do this job properly.”
Paul Foley, UNISON Regional Officer, commented: “Gerard Darlington had to have months off work, and ongoing physiotherapy and operations as a result of the injuries he sustained. He continues to experience problems with his neck which affects his work and his day to day life, especially his ability to sleep. We are therefore very pleased with the compensation he has secured.”
Inadequate training in restraint techniques
In Dominic Harvey v Northumberland County Council 2003, the Court of Appeal was asked to revoke an earlier ruling by a trial judge which went in favour of Mr Harvey, whose claim for damages had arisen out of an accident that occurred at his work on the 9th June 1998.
Mr Harvey’s claim was that whilst restraining an unruly child, he was caused to twist sharply causing injury to his right knee.
He blamed his injury on inadequate training in restraint techniques.
The Appeal by Northumberland County Council was dismissed and the judgement provided some really important advice for managers and employers of people who are relied on to carry out physical interventions.
In the Scottish case of Collins v First Quench Retailing Limited (31 January 2003) the Claimant sought damages having been the victim of an armed robbery.
Although, it was accepted by the court that the general security provisions and training were adequate, it was considered that the prospect of the robbery occurring would have been substantially diminished had there been two members of staff on duty.
The Claimant was awarded £179,000 damages.
In contrast, in Humphrey v Tote Bookmakers Limited, a betting shop manager, suffering from post traumatic stress disorder following a robbery, failed in his claim for damages.
This was because the Court felt that, in the particular circumstances, it was unreasonable to expect the employer to have ensured that two members of staff were present when the shop was to be opened.
In Ealing Borough Council v Kentucky Fried Chicken (30 July 2002), the fast food chain was successfully prosecuted for a number of breaches including failing to erect glass screens and deep counters. The Court found that had they carried out a specific risk assessment, they would have appreciated that the risk of robbery warranted such protection.
This case was mentioned by John Hannett, Deputy General Secretary of USDAW in his speech at the HSE Conference “Tackling Work-related Violence – Putting Policies into practice” held on the 2nd November 2002.
However, the Court of Appeal took the opposite view in Yorkshire Traction Co Limited v Searby (2003).
In this case, a bus driver who had been assaulted by a passenger argued that there should have been a screen to separate him from passengers and that his employers had been negligent in not providing one.
The claimant initially won his case, however, the Bus Company then appealed, successfully.
It was shown that the risk of assault had been formally assessed (and the facts showed that actually the risk of injury to bus drivers from assaults by passengers was very low.)
The employers had also consulted with drivers and Trade Unions – who had raised serious safety objections about protective screens (one particular objection was the problem of reflection of light on the screens at night).
The employer had weighed up the pros and cons and decided on balance against installing the screens.
The Court of Appeal decided that the failure to fit screens did not amount to negligence.
Personal Protective Equipment
In Henser-Leather v Securicor Cash Services Limited (2002), the Claimant successfully argued that in failing to provide him with body armour his employer had been in breach of their statutory duty .
This was despite evidence to the effect that the Claimant would have been unlikely to wear the body armour due to it being hot and uncomfortable. The Court considered that the risk of dermatitis or general discomfort associated with body armour was preferable to the foreseeable risk of serious injury during a robbery.