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Employers’ liability: Causal relevance of failure to carry out risk assessment

West Sussex County Council v Fuller
Court of Appeal
12.3.15

As can be seen in our recent case of Johnson v Hartlepool Borough Council, the issue of risk assessment is only one component of establishing liability in an employers’ liability claim. Just days before this case was heard, the Court of Appeal in West Sussex County Council v Fuller, held that although a local authority was arguably in breach of duty in failing to carry out a risk assessment before asking a receptionist to deliver post around the office, for liability to be established there had to be a causal connection between the task and the injuries she sustained when she tripped on stair while delivering the post. Sue Howes comments on the case.

Facts

Ms Fuller, a receptionist employed by West Sussex County Council, was delivering post to different areas of the office when she tripped up a staircase and sprained a ligament in her wrist. She claimed she had been carrying a large amount of bulky post and that the local authority was liable because it had failed to carry out a risk assessment under the Management of Health and Safety at Work Regulations 1999 reg.3 and the Manual Handling Operations Regulations 1992 reg.4.

The trial judge found that she had not been carrying a large amount of post and had simply misjudged her footing but felt compelled to allow her claim because of the local authority’s failure to carry out a risk assessment. The local authority appealed.

Court of Appeal Findings

Moore-Bick LJ, Tomlinson LJ and Sir Robin Jacob allowed the local authority’s appeal and dismissed the claim:

  • Liability for breach of reg.3 of the 1999 Regulations or reg.4 of the 1992 Regulations could not be established without proof of a causal link between the breach and the injury suffered. 

  • The burden of proving that causal link was on the claimant.

  • However, in many workplace situations, a failure by the employer to assess the risks of injury involved in a manual handling operation, and to take appropriate steps to reduce the risk of injury to the lowest level practicable, would effectively cast on to the employer the evidential burden of showing that its failure was not at least a cause of the accident. That was because there would be an obvious connection between the injury and the risks associated with the activity being undertaken. That was not the case where the cause of the accident was unconnected with the risk generated by the operation in question.

  • In this particular case, the local authority had arguably been in breach of duty in failing to carry out a risk assessment, but on the facts found by the judge, the accident did not fall within the ambit of the risk that the local authority had arguably been required to assess. The employee had simply misjudged her footing when climbing a staircase while she happened to be carrying one or more items of post. Her accident was wholly causally unconnected with her carrying of the post.

Comments

  • It is surprising how many of these cases are still pursued when, what might seem like a simple task, causes an injury. In many cases the activity being undertaken appears an everyday activity and often is not one where training has been provided or indeed, the task has been risk assessed, as here. 

  • In our own case of Johnson v Hartlepool Borough Council, we were in the fortunate position where consideration had at least been given to the risks posed by delivering leaflets and a risk assessment produced. 

  • These cases provide a reminder that the causal link must be established.  What will be interesting is the court’s interpretation of these cases post Social Action, Responsibility and Heroism Bill Act (SARAH) Act and whether not only will there be no causation link but further, no breach either.

Contact

For further information please contact Sue Howes on DD +44 191 233 9705 or at sue.howes@dwf.co.uk

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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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