This case was an appeal by Yorkshire Traction Company Ltd., against a decision of the County court which gave judgement to Walter Selby (WS), against his employers in an action for damages.

Mr Selby, was employed as a bus driver by the appellant. In November 1998 he was assaulted by a passenger whilst sitting in the driving seat of his bus.

WS argued that there should have been a protective screen to separate the driver from the passengers.

WS began proceedings under Reg 5. Provision and Use of Work Equipment Regulations 1992.

The County court had held WS’s employer, Yorkshire Traction Company Ltd., to be negligent for failing to inset protective screens and also failed in its statutory duty to provide “suitable” buses under reg 5.3.

Damages were awarded to WS for £32,140.73.

Yorkshire Traction Company Ltd appealed the finding on liability.

HELD: (a) Yorkshire Traction Company Ltd did owe a duty of care and its performance could involve on occasions initiatives independent of the workforce and agreements with the workforce. In this case the attitude of the workforce was a significant and substantial factor. Some experienced bus drivers in well organised and vocal trade unions had objected to the insertion of screens. Their objections were on health and safety grounds, one particular objection being the reflection of light on the screens at night. Some drivers had gone to lengths to get screens removed from buses which had been purchased with screens.

Consideration was also given to the facts. These showed that the risk of injury to bus drivers from assaults by a passenger was, for Yorkshire Traction Company Ltd’s workforce in 1998, very low.

The perceived disadvantages, measure of risk and the attitude of the workforce were such that Yorkshire Traction Company Ltd was not negligent in failing to fit screens.

In relation to breach of statutory duty, the regulations did not require complete and absolute protection.

Marks and Spencer plc v Palmer (2001) showed that the test for liability involved a consideration of the degree of risk when assessing the “suitability” of work equipment.

The focus was not on the reasonableness of the employer’s conduct but the effect of the condition of the bus on health and safety.

By showing that it was reasonably foreseeable that the absence of a screen could expose a driver to injury it did not follow that liability was established.

In this case an assessment of suitability required the degree of risk involved in the absence of a screen to be considered.

On fact the risk of injury to drivers in November 1998 was very low. In the circumstances the county court was wrong to hold that the bus driven by WS was unsuitable under Reg 5.3.

Appeal allowed.