Digby Brown recently assisted a pursuer who was injured when she was assaulted in her workplace. The case of SH V Care Visions Group Ltd proceeded to an evidential hearing in the All Scotland Personal Injury Court in Edinburgh and raised important issues relating to breach of duty and contributory negligence. The decision has now been reported and makes for interesting reading for personal injury practitioners.

Circumstances of assault

The pursuer was assaulted by a 15 year old resident of a home run by the defenders. At the material time the pursuer was employed as a residential care worker with the defenders and was AB’s key worker.

The assault took place shortly after AB participated in a difficult telephone discussion with her mother. AB believed her mother to be telling her she did not wish to live with her when she turned 16. AB, who has a history of violence and aggression, reacted angrily. The pursuer spoke to AB’s mother and then tried to calm AB down. AB took the view the pursuer was siding with her mother. The pursuer made a remark ‘I wouldn’t want you screaming and shouting like that in my house either’.

AB became physically aggressive. Two of the pursuer’s colleagues, JM and LR, were in the vicinity and heard AB threaten the pursuer. AB indicated she wished to speak to the pursuer and all three approached her, with AB shouting and swearing. AB then assaulted the pursuer. AB was later charged and convicted of assault. This was not her first conviction for assaulting a member of staff at the home.

The pursuer’s case

The pursuer claimed her colleagues’ failure to stop AB approaching her in circumstances where there was risk of her suffering harm amounted to a breach of duty of care for which the defenders were liable. There was reference to a failure to provide the pursuer with a safe place of work and a safe system of work.

The pursuer and her colleagues all received initial training, which included training in CALM techniques, de-escalation and trauma informed care. The pursuer criticised the defenders’ risk assessments and associated control measures, including policies for managing aggressive behaviour and training.

The defenders’ case

The defenders admitted vicarious liability for the acts and omissions of staff but denied any wrongdoing on the part of JM and LR, whom they argued had been unaware of the volatile situation preceding the assault.

The defenders also argued that if there was a breach of duty, the pursuer was contributorily negligent on the basis that the conversation with AB’s mother, and the subsequent remark, had resulted in an inflammation of the situation.

The decision

The Sheriff identified two main issues. He considered whether it would have been apparent to an ordinary reasonable person in JR/ LM’s position that harm to the pursuer would be a reasonable and probable consequence of their failure to prevent AB from entering the room. He then looked at whether the actions of JR/LM fell below the standard of care expected of them.

Given the circumstances, the Sheriff did not consider that AB had calmed down sufficiently to safely have a face to face conversation with the pursuer. JM and LR, knowing the background and AB’s history of violence, ought reasonably to have been aware of the risk and prevented her from approaching the pursuer. The combined failures fell below the standard expected of them, so creating a breach of duty for which the defender was vicariously liable.

The Sheriff’s view was had AB been prevented from entering the living room, the assault would not have occurred. The failure of the defender’s employees to prevent AB from entering the room caused or materially contributed to the incident.

The Sheriff therefore concluded it would have been apparent to an ordinary reasonable person in JM/LR’s position that a reasonable and probable consequence of their failure to prevent AB from entering the room would be harm to the pursuer.

The standard of care applicable in these circumstances is that of a reasonably competent residential worker and the combined failures of both employees fell below that standard. But for these failures, the pursuer would not have suffered injury. The failures were so closely connected with the tasks JM and LR were authorised to carry out that it could reasonably be said they were acting in the ordinary course of their employment. Accordingly, the defenders were vicariously liable for the failures of JM and LR.

Damages were awarded in an agreed sum of £12,000.

Contributory negligence

 In relation to contributory negligence, the Sheriff noted the pursuer, as AB’s key worker, had developed a strong professional relationship with her. Part of the key worker/resident relationship involved giving blunt feedback. AB’s anger arose from the phone call and her perception the pursuer was agreeing with her mother’s views. The Sheriff considered the remark ‘I wouldn’t want you screaming and shouting like that in my house either’ was unfortunate, amounting to no more than momentary inadvertence, and did not materially increase AB’s level of anger towards the pursuer. The Sheriff determined the pursuer had not been negligent.

It is not often that Scottish claims of this type reach the stage of an evidential hearing and it is unusual to see reported decisions covering assaults at work. The decision is a welcome one for the pursuer and her legal team and an important one for all personal injury practitioners.

The decision can be read at SH V Care Visions Group Ltd [2021] SC EDIN 28.