Up on the Roof - Employee on a frolic of his own!


09 September, 2015

Smith v Asda Stores Ltd - Bournemouth and Poole County Court

The Claimant brought a claim against his employer, Asda, after falling from the top of a home delivery vehicle. Prior to the accident there had been some larking around in the depot and a baseball cap had been thrown on to the top of a vehicle. The Claimant had offered to retrieve it but as he descended from the roof, he fell and sustained a nasty head injury.

At trial it was alleged that there had been occasions when the drivers had been instructed to ascend the roof. The Judge found as fact that this was not the case, he accepted that there may have been occasions when drivers climbed on to roof but largely for illegitimate purposes, namely horseplay. It was found that managers were not aware of this practice or horseplay, if they had have been aware they would have stopped it.

The Judge stated that the employees knew that going on the roof was dangerous and so to be kept from the management. Furthermore, it was also alleged that the Claimant did not know of the presence of step ladders located in the warehouse. This was considered inconceivable, just nine months earlier the Claimant had signed a validation confirming that he was able to use them.

At trial, it was maintained that the Claimant was acting in the course of his employment, as he was removing a foreign object from a colleague's van to enable it to be driven from the depot. However, the Judge concluded that as the Claimant had accepted that he had been larking around, it would be wrong to find that he was acting in the course of employment in seeking to remove a danger that he had contributed to creating when not acting in the course of his employment. The judge therefore held that the Claimant was on a frolic of his own and dismissed the claim.

Forbes comment

This was an excellent result, and follows the recent Court of Appeal case of Graham v Commercial Bodyworks [2015] (see our previous article). Helpfully, the Judge continued in his judgment to consider the breaches alleged by the Claimant. He found that there was a safe system in place, as there was a set of steps readily available. The danger involved in climbing on top of a van was so obvious that no instruction to fetch a set of steps was necessary. Whilst it is true that employees need to be protected from themselves, the Claimant had recognised in evidence that his actions had been "pretty stupid". He knew of the existence of the steps and therefore should have used them. The lack of a risk assessment was also dismissed on the basis that there is no need to undertake an assessment of risks which are not foreseeable.

For further advice please contact David Pickford by email or call 0113 386 2684.


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