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DWF Case Update: Employers’ liability

Johnson v Hartlepool Borough Council
Middlesbrough County Court
Appeal hearing 27.3.15; written judgment delivered 29.4.15

Following on from the recent Court of Appeal decision in West Sussex County Council v Fuller, Sue Howes reviews her successful defence of Johnson v Hartlepool Borough Council, a further reminder that the issue of risk assessment is only one component of establishing liability in an employers’ liability claim.

Facts

The claimant was employed by the defendant local authority as an interventions officer and was appointed to assist a young offender carrying out reparation work in delivering leaflets for a charity fayre.  The claimant was delivering a leaflet through a letterbox when a dog inside the property bit her, injuring the ring finger of her left hand.  It was alleged by the claimant that the defendant had not properly carried out a risk assessment and that the claimant had received no information about protective measures to reduce the risk of a dog bite or training.  The defendant denied the claim stating that a risk assessment had been carried out which identified the risk of a dog bite with control measures including that no hand should be pushed through a letter box and that the claimant’s colleague provided an instruction to the young offender at which the claimant was present which included this measure.

At first instance the District Judge found that although there were risk assessments, the claimant had not considered the need to access them because she believed she would not be undertaking any deliveries herself, that the operation of delivering leaflets posed a “significant risk” and that the defendant was in breach of its statutory duty by failing to train the claimant on how to deliver leaflets which was causative of the injury.

The claimant succeeded in her claim and was awarded £2,700 damages and £18,250 costs. The defendant appealed.

Appeal findings

The Appeal court considered that the key issue absent from the District Judge’s assessment was that relating to causation and whether, if the claimant had been given instruction it would have prevented the accident.  In overturning the first instance decision the Appeal court found that even if the claimant had been given training in a task that it was being asserted was a rather obvious task, it did not mean that her accident would not have occurred and for that reason the appeal succeeded.

The defendant recovered its costs of the claim.

Comment

A further reminder, if one were needed, that the issue of risk assessment is only one component of a case.  The lack of a risk assessment or, as in this case the presence of one, does not of itself prove or rebut a claim. The claimant carries the burden of proving that the failure to assess or properly assess the risks was causative of the injury that she sustained, a fact often overlooked. 

Contact

For further details of this case please contact Sue Howes on +44 191 233 9705 or at sue.howes@dwf.co.uk

By Sue Howes

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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