Vicarious liability for pulling chair away
The claimant alleged that one of her colleagues deliberately pulled her chair from underneath her as she was about to sit down.
The employers denied vicarious liability at trial on the basis that either the act was deliberate horse play or, in the alternative, that it was an act of carelessness. The judge found as a fact that the chair was moved by the colleague but not as a joke. However he found that moving the chair the moment before he knew the claimant was about to sit down was a breach of the duty of care he owed to her as a fellow employee and that he did so without warning her. On that basis he found the employer vicariously liable as the act was carried out during the course of employment.
Wilson -v- Council of the City of Newcastle Upon Tyne, 19 July 2005.
Manual handling trial
An employee gained access to a Job Centre works car park through a large pair of cast iron gates. These were not mechanised and swung freely on their hinges.
After September 11 2001, the state of alert for all government buildings was upgraded to amber and, whereas prior to the accident security guards or staff possessing keys to the building would open the gates and security would shut them at night, it was now necessary for them to be shut when not in use.
Amber alert had been in place for a few weeks when the claimant opened the gates to drive her car into the car park. She then began the process of shutting the gates. She began to shut the gate on her left by pulling it with both hands towards her (the gates were 7ft x 8ft and very heavy). The gates dovetailed and the claimant realised she had shut the wrong gate first. She stopped the movement of the gate by holding her hands up and turning around. The gate had not actually stopped moving and struck her ankle causing a deep laceration which became infected and which the medical evidence said would stop her wearing backless shoes.
Liability was denied throughout. At trial allegations of breaches of PUWER and the Workplace Regs were abandoned leaving the claimant with a claim under the Manual HandlingRegulations and her common law claim. The claimant's witnesses confirmed that the gate could swing freely and this was even recorded by the defendant’s solicitor inspector who, while pointing out that the gate could be moved with relatively little force, noted it could move independently by up to 10 inches. The judge was also able to see this for herself by conducting an inpromptu site inspection as the jobcentre was next door to the court!
The defendants maintained it was an everyday task and in the circumstances it was not one they should be expected to risk assess and it did not constitute a foreseeable risk of injury. In support of the first limb of this they relied on the important remarks of LJ Hale in Koonjul -v- Thameslink that, for a risk assessment to operate, there had to be real foreseeable risk of injury .
HHJ Hampton agreed that, in the context of the claimant's work, this was not a task that required a separate risk assessment under the manual handling regulations and the claim failed on that basis
Notwithstanding the failure of statutory breach of duty she held that the defendants had constructive knowledge of this risk by virtue of the fact that the key holders and security staff should have known about the risk which, although small and capable of affecting a small number of people, was nevertheless appreciable and she criticised the defendants saying that the risk could have been managed in an effective and cost free manner had those responsible applied their minds to the situation properly.
The Judge said they could have dealt with the risk simply by means of a warning sign, or someone just instructing the claimant that the gate had a tendency to swing independently. She also made weight of the fact that, after the accident, the recommendation that security staff alone were to operate the gate was implemented.
Wright -v- DWP