01 June, 2015
West Sussex County Council v Kim Fuller (2015)  EWCA Civ 189 CA (Civ Div) (Moore-Bick LJ, Tomlinson LJ, Sir Robin Jacob) 12/03/2015
An employee brought a claim following an injury at work. The claimant had been a receptionist at one of the local authority's offices. She had been asked to start delivering post to different areas of the office. Whilst delivering the post she tripped up a staircase and put out her hand to break her fall, spraining a ligament in her wrist. The employee claimed that 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.
At first instance, the judge found that she had not been carrying a large amount of post and had simply misjudged her footing, but he felt compelled to allow her claim because of the defendant's failure to carry out a risk assessment. Furthermore, the judge had been persuaded that he was "prohibited" from making any finding of contributory negligence. The judge's instinctive reaction was that the argument presented to him, which he was invited to accept, was "health and safety gone mad".
The local authority appealed and the Court of Appeal allowed the appeal. It found that 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.
In the instant 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. Lord Justice Tomlinson commented "Her accident was wholly causally unconnected with the circumstance that she was at the time carrying one or more items of post. The circumstance that the claimant was carrying post may perhaps be described as the occasion for her injury, but it was not a cause of it." The employee had simply misjudged her footing when climbing a staircase while she happened to be carrying one or more items of post.
This case makes it clear that the failure to carry out a risk assessment to reduce risk to the lowest level reasonably practicable does not automatically mean that liability will follow. It is still open to the employer to show that the breach of duty has not in fact been causative of the injury. For further advice and information on this case or in relation to any employers liability matters, please contact Sarah Wilkinson on 01254 662831 or email Sarah Wilkinson