The number of workplace assaults and resultant criminal prosecutions has been on the increase over recent years, attracting the media spotlight.  With an increasingly claim-conscious public, it is therefore perhaps surprising that the courts in Scotland have yet to see many litigated claims for damages for personal injuries sustained in these often violent and disabling attacks.

Under the Health and Safety at Work Act 1974, employers have a duty to provide their employees with a safe working environment, free from the risk of personal injury caused by being assaulted at work either by a member of the public or by a work colleague.  Historically, claims against employers for damages for this type of injury have proved problematic for claimants, both in establishing a breach of duty, and causation.  However, in England at least, the number of successful actions against employers appears to be on the rise with recent decisions such as Pritchard v Co-operative Group , [2011] EWCA Civ 329, perhaps indicating a sea change towards the courts adopting a more pro-plaintiff approach to these types of claim, with conventional arguments run by defendants in most other PI cases being, in effect, ruled out.

The Pritchard case concerned an employee of the Co-op, Miss Pritchard, who claimed she had been assaulted by her superior.  The Co-op maintained Miss Pritchard had been contributorily negligent.

Following a confrontation, Miss Pritchard was physically ejected from the premises by the store manager, Mr Wilkinson.  During the struggle, Miss Pritchard bit Mr Wilkinson before tripping on a step.  Miss Pritchard claimed to have suffered a psychiatric injury due to Mr Wilkinson’s alleged assault.  The Co-Op pointed to Miss Pritchard’s behaviour, suggesting that she had provoked Mr Wilkinson.  The defendant’s agents argued for a finding of contributory fault against Miss Pritchard on account of her actions.  Somewhat controversially their Lordships came to the view that Parliament did not intend the Law Reform (Contributory Negligence) Act 1945 to stretch to cover a situation where the injury is caused by wilful negligence of the person guilty of the assault (ie Mr Wilkinson), and refused make any reduction to reflect contributory negligence.  Miss Pritchard was awarded full damages.

This is a decision that sits somewhat uneasily with a situation where, for instance, there is clear evidence that the claimant’s actions were provocative in the lead up to an assault.  However, on the basis of Pritchard, no matter the extent of that provocation, a contributory negligence argument seems bound to fail.

It remains to be seen whether this decision will be further challenged in the future, but broadly speaking it seems likely that this type of employer liability claim will be coming before the Scottish Courts more frequently in the future.