A common sense distinction is made between a risk which is work-related or work-created and one that is not.

Hill Dickinson has successfully defended a recent employer’s liability personal injury claim to trial. Here, Victoria McManus discusses the decision, which will be welcomed by trusts throughout the country.

Background

The claimant was a community midwife who slipped on ice, injuring her knee, in December 2010 while walking from a patient’s home to her car.

The claim

It was the claimant’s case that the trust should have provided personal protective equipment (PPE) in the form of crampons to reduce the risk of slipping. 

The defendant denied liability on the basis that it had policies in place in relation to appropriate footwear, lone working and ‘slips and trips’, and had also produced risk assessments and implemented health and safety training, such that there was little more that they could have been expected to do.

At trial

At the trial of this matter, the sole issue to be tried was whether the defendant was in breach of Regulation 4 of the Personal Protective Equipment at Work Regulations 1992.

It was the claimant’s case that she was ‘at work’ within the meaning of Section 52 1(b) of the Health and Safety at Work Act 1974 and accordingly Regulation 4 of the PPE Act applied. It was said that simple PPE by way of winter shoe grips would probably have avoided the accident and should have been provided.

The defendant’s argument was twofold. In the first instance, the PPE Regulations were not engaged as a distinction needed to be drawn between ‘work-related risks’ and ‘other risks’ which a worker may be exposed to in the same way as any other member of the public. The risk of slipping and falling on ice was the same for anyone walking along the street at the same time and was therefore not work-related. 

Alternatively, if the Regulations did apply, the defendant argued that the slipping risk was adequately controlled as the defendant had provided advice and training. In addition, they had allowed the claimant to wear her own footwear dependent upon the weather, and she (more so than her employer), would be in a better position to judge what would be safest.

Judgment

Recorder Heaton QC dismissed the claimant’s claim and was influenced by a recent Scottish inner house Decision ofKennedy -v- Cordia (Services) LLP (which has been appealed and is due to be heard in the Supreme Court shortly). He agreed that there was no dispute that the claimant was ‘at work’ at the time of her accident within the meaning of Section 52 of 1975 Act, but he rejected the claimant’s submission that that was all that was required for the PPE Regulations to be engaged. 

In his view, the claimant’s own interpretation would mean that any employee who, during their working day, had to go outside and off their employer’s premises in inclement weather would need PPE. He agreed that there was a difference between a risk which is work-related or work-created and one that is not.

He also agreed with the defendant’s alternative argument and agreed that the risk was adequately controlled by other means that were equally or more effective than the provision of crampons.

This was a significant win for the defendant as the repercussions of an unsuccessful defence would have been significant. The claimant has agreed to pay the defendant’s costs of defending the action in full.