Establishing liability for breach of statutory duty

West Sussex County Council v Fuller [2015] EWCA Civ 189

The facts

Fuller had been employed as a receptionist and had been tasked with delivering post to different areas of the office.

While delivering post she had tripped up a staircase sustaining injury. Fuller claimed that she had been carrying a large amount of post and that the local authority was liable as 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.

The judge at first instance found that Fuller had not been carrying a large amount of post and had simply misjudged her footing, but he felt compelled to allow her claim due to the failure to carry out a risk assessment.

Held

On appeal by the Local Authority, it was 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, which Fuller was required to prove.

However, in workplace situations, the employer’s failure to conduct a risk assessment of a manual handling operation would place an evidential burden on the employer of showing that its failure was not a cause of the accident.

It was found that although the local authority had arguably been in breach of duty in failing to carry out a risk assessment, the accident did not fall within the area of risks that the local authority had to assess. Fuller had therefore simply misjudged her footing when ascending a staircase while she also happened to be carrying items of post. Her accident was causally unconnected with the circumstance that she had been carrying post.

What can we learn?

  • Although a risk assessment is still necessary, failure to carry one out will not necessarily be fatal to a defence
  • Accordingly defendants can admit breach of statutory duty without conceding liability
  • The case demonstrates that causation should be investigated in detail and can provide an excellent opportunity to defeat the claim, even in instances where there have been failings