Several posts on this blog have highlighted the continuing importance of the risk assessment in looking at accidents at work after the ERRA. Here we look at the key importance of risk assessments; the importance of a detailed knowledge for all litigators involved in this area of litigation and the practical guides that will provide invaluable assistance.
THE IMPORTANCE OF THE RISK ASSESSMENT
The central importance of the risk assessment was considered by Smith J in Allison v London Underground Ltd  EWCA Civ 71 http://www.bailii.org/ew/cases/EWCA/Civ/2008/71.html
“57 How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.”
Similarly in Threlfall –v- Hull City Council  EWCA Civ 147.http://www.bailii.org/ew/cases/EWHC/QB/2009/3042.html
Smith J stated:
“35. For the last 20 years or so, it has been generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with his operations so that he can take suitable precautions to avoid injury to his employees. In many circumstances, a statutory duty to conduct such a risk assessment has been imposed. Such a requirement (whether statutory or not) has to a large extent taken the place of the old common law requirement that an employer had to consider (and take action against) those risks which could be reasonably foreseen. The modern requirement is that he should take positive thought for the risks arising from his operations. Such an assessment is, as Lord Walker of Gestingthorpe said in Fytche v Wincanton Logistics  PIQR 975, ‘logically anterior’ to the taking of safety precautions. I said something similar, in rather less elegant language, in paragraph 58 of Allison v London Underground Ltd  ICR 719.”
THE RISK ASSESSMENT HAS TO BE CAUSATIVE
Much consideration, therefore, will be given to the issue of whether there was a risk assessment and whether that risk assessment was adequate. However a claimant has to go one step further and show that the absence of the risk assessment, or its inadequacies, was causative of the injuries. This point was recently made by the Court of Appeal in the recent case of Nicholls –v- Ladbrokes Betting & Gaming Ltd.  EWCA Civ 1963. The Court of Appeal allowed an appeal by the defendant in a case where the defendant was found liable at first instance. The claimant had suffered psychiatric injury following an armed robbery at the betting shop where she worked. The just at first instance found the defendant liable, relying on the absence of any evidence of a risk assessment. The Court of Appeal allowed the defendant’s appeal. Floyd LJ observed, at 89:
“… in the absence of any finding about what a formal risk assessment would have shown about any of these matters, the absence of the risk assessment does not help the claimant. Merely to say that a formal risk assessment would have addressed the vulnerability of the shop is to beg the question of what the vulnerability of the shop actually was.
“It is trite to say that all shops are vulnerable to robbery. The absence of the risk assessment cannot constitute positive evidence about the nature or extent of the risk. The passage I have quoted from Smith LJ’s judgment in Allison v London Underground makes it clear that the court needs to consider what a risk assessment would have found, not what topics it would have addressed or what matters it would have been, in consequence, possible to assess”
Earlier at 88 he observed:
“In the present case I simply do not follow how the failure to produce evidence of a risk assessment, on its own, advances the claimant’s case. The next question has to be: what would such an assessment have shown?” (emphasis added).
THE CRUCIAL TEST: WHAT WOULD THE RISK ASSESSMENT HAVE SHOWN & WHAT SHOULD HAVE BEEN DONE?
This highlights the fundamental issue for claimants. The absence, or inadequacy of a risk assessment is not definitive, the court has to consider what the risk assessment should have revealed and what steps a reasonable employer would have taken as a result.
HOW, AS LAWYERS, CAN WE ASSESS THIS?
At a time when the use of experts is becoming more restricted it is up to the lawyers to consider what the risk assessment should have revealed and what would have been done. This goes beyond the common law test and requires a detailed knowledge of:
(1) What risk assessments should cover generally.
(2) What specific risk assessments should have taken place.
(3) What difference a risk assessment would have made.
This knowledge is going to be as useful as a detailed knowledge of the relevant regulations and a comprehensive knowledge of the law of tort (in fact there is a strong argument that it is going to be more useful).
INVALUABLE (AND FREE) GUIDANCE FROM THE HEALTH AND SAFETY EXECUTIVE
The main aim here is to persuade you to spend time looking at the useful resources on the HSE website at http://www.hse.gov.uk/index.htm
FIVE STEPS TO RISK ASSESSMENT
The HSE recommends five main steps to consider when creating a risk assessment see (http://www.hse.gov.uk/risk/fivesteps.htm)
There is a helpful example of a general risk assessment, which can be downloaded at http://www.hse.gov.uk/risk/fivesteps.htm
There is also an example health and safety policy which illustrates what employers need to think about and include in risk assessments at http://www.hse.gov.uk/risk/casestudies/index.htm
SPECIFIC EXAMPLES OF RISK ASSESSMENTS
The HSE has also created example risk assessments for a number of industries which show the kind of approach the HSE expects a small business or workplace to take:
- Food preparation and service
- Cleaning roles
- Convenience Stores/Newsagents
- Betting Shops
- Road Haulage
- Administration work
- Call centre work
- Cold storage and warehousing
- Factory maintenance work
- Maintenance of flats
- Night club work
- Pub work
- Warehouse work
There are also checklists for Shop, Classroom and Office risk assessments at http://www.hse.gov.uk/risk/assessment.htm
RISK ASSESSMENTS AND VIOLENCE AT WORK
Given the issues highlighted in the Nichols case it is worth looking at the guidance for risk assessments dealing with threats of violence at work at
Other useful links relating to risks from violence at work are
- A detailed consideration of the law relating to risk assessments after the ERRA can be found at https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/01/the-duty-to-risk-assess-and-common-law-duty-after-1st-october-2013/
- A “bite sized” version can be found at https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/01/risk-assessments-after-the-eera-bite-sized-version/
- A link to risk assessments in the health sector is at https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/17/risk-assessments-and-health-and-safety-in-the-health-care-sectors/