Duty of care at workJul 07, 2020
The requirements for bringing a successful claim for compensation
If a worker is injured during their employment, they generally have to establish three things in order to receive compensation. Duty of care is central to all three:
- They have to establish that they are owed a duty of care by the business. In most cases, especially those that involve a physical injury, this is not usually much of a problem for a potential Claimant.
- Next, they have to prove that the business has in some way “breached” their duty of care. This is often the most difficult part of a Claim. The Law doesn’t expect absolute perfection at work. Generally speaking, if the business can prove that it’s acted reasonably safely, then it’s a lot harder to claim against them.
- Even if the business has breached the duty of care, it needs to be proved that the injury was caused as a direct result of this.
In practice, these issues are rare. However, a recent Case in the High Court in London helps to illustrate how the principles above are applied in practice.
The Case was that of an LGV driver called David Harris. Mr Harris was an experienced LGV driver and had been properly trained in the past. Sadly, on 24 February 2015, whilst at work, he was involved in a tragic accident. An articulated lorry and trailer rolled over the top of him causing him severe injury. The accident was caused when the brakes of neither the tractor unit nor the trailer were applied at the time. The Court’s job was to decide how this sequence of events came to pass. In addition, it had to decide who was legally responsible for Mr Harris’ injuries.
Mr Harris brought a claim against two parties, the first of which was his employer – a haulage and storage company. It’s typical in the haulage industry for someone to work through an agency. After a while, they’re then taken on as a permanent member of staff. In terms of a health & safety induction, he was given a copy of the company’s handbook which he signed for. He was told that he could read it at his leisure. Mr Harris had been given the handbook approximately 2 weeks before his accident. His evidence included not having a chance to read the handbook by the time the accident had happened.
The Second Defendant
The Second Defendant was another self-employed haulage driver who had delivered the trailer to the yard. Mr Harris alleged that the second defendant had left the trailer without the brake on. In addition, he should have parked the trailer using chocks to stop it from moving.
The Judge’s conclusion was that the Second Defendant HAD applied the brake. Furthermore, it was likely that the brakes on the tractor and trailer had been left off by the Claimant. The Judge found that chocks weren’t widely used in the industry, and that relying on the brakes alone would suffice. Therefore, the Second Defendant did not breach his duty of care. He was found to be in no way to blame for the Claimant’s injuries.
The Judge then turned to Mr Harris’ Claim against his employer. There were a number of allegations including lack of risk assessments and proper training.
The Judge summarised the legal test of liability as follows: –
“I have to decide what precautions a reasonably prudent employer should have deployed to keep the Claimant safe during his work. Such precautions should take into account foreseeable events including mistakes that could be made by the employee, particularly as such mistakes were known to occur. Such measures are likely to include training, risk assessment and provision of appropriate equipment to address the risk. The duty of an employer to their employees is not confined to such measures as would be taken by any prudent employer, but will include such measures as they are actually aware of, or should have considered, as part of prudent risk assessment. If there is a breach of duty to take measures, the Claimant is still required to show that the breach was the cause of the injury.”
The Judge’s decision
The Judge was critical of the employer, commenting that their attitude towards induction and risk assessment “left a lot to be desired”. The induction process of simply handing the Claimant the Handbook and telling him to read it at his leisure was not good enough. The Judge found that Mr Harris knew that the brakes needed to be applied on both the tractor and trailer units. In addition, Mr Harris knew that the vehicles had been parked on a slope. Furthermore, Mr Harris has ignored the vehicle’s warnings and alarms prior to the accident.
The Judge found that even if he had read the handbook, it wouldn’t have done him much good. In other words, the handbook wouldn’t have told him anything more than he already knew, and it would have made no difference to the way Mr Harris acted. He would still have been injured.
The Judge also found that the employer should have carried out a formal risk assessment of the yard where the vehicles were parked. Just asking the driver to look at it and confirm that it was acceptable was not enough. However, once again, the Judge found that even if the employer had carried out a proper risk assessment it wouldn’t have changed the course of events. This wouldn’t have been enough to prevent the accident because the risk of failing to apply the brakes to the tractor and trailer units when parked on a slope were obvious to Mr Harris. The Risk Assessment would not have prevented the accident.
Therefore, in summary, both the First and Second Defendants owed the Claimant a duty of care.
The First Defendant breached the duty of care in terms of training and risk assessment. However, neither of those breaches actually caused the Claimant’s accident.
As far as the Second Defendant was concerned, there was no breach of duty. The Claimant’s claim therefore failed.
Conscious that the Claimant may seek permission to go to the Court of Appeal, the Judge added a further statement. He mentioned that if he was wrong in his decision, then he would have also found that Mr Harris had substantially contributed by his own negligence to the tune of around 80%.
This means that if his Claim was valued at say £1million, the figure would be reduced by 80%. He would recover only £200,000.
What this means
In the context of accidents at work, it’s very rare to have a finding of contributory negligence of over 50%. However, in this case the Judge felt that Mr Harris had failed to implement even the most basic safety measures for any driver, let alone a driver of an articulated lorry. Mr Harris continued in his actions, even when faced with ample warnings – both audible and visible. There was nothing complicated about applying the handbrake in a vehicle which was on a slope.
I don’t know whether Mr Harris’ Solicitors will seek permission to take the Case to the Court of Appeal. Even if he is eventually successful in establishing a claim, it will no doubt be heavily reduced due to his own negligence. However, because the injuries were so serious it may be that the case is still pursued.