Martinez v London Borough of Merton [02.07.13]
Employers and insurers will no doubt be reassured by this decision.
The Judge did not accept the Claimant’s contention that there is a duty on an employer to undertake risk assessments and provide training to employees who drive their own vehicles in the course of their employment in relation to steps to be taken in the event of an accident and, more particularly, road rage.
The view adopted by Kennedys throughout the matter was that these are largely matters of common sense and adequately dealt with under the Highway Code.
The Claimant was employed by the Defendant as a commercial waste officer. On 3 April 2007 he parked his car in Leopold Road, Wimbledon to visit a customer. As he was about to get out of his car it was struck by a van, which continued on its way.
The Claimant was able to catch up with, and attract the attention of, the van driver to exchange details. The van driver became abusive. The Claimant opened the van door. The van driver elbowed him in the neck, slammed the door and drove off. The Claimant ran after him. The van driver then got out of his van, shouted at the Claimant and got back into his van to drive off.
The Claimant alleged that he should have been trained to deal with this type of situation, but because he was not trained he attempted to make a citizen’s arrest. A fight ensued.
The Claimant was subsequently convicted of assault in the Magistrates’ Court. However, the conviction was quashed on appeal on the basis that the Court was not able to say that the Claimant’s actions were not lawful self defence.
The Claimant had previously received weapons training from the RAF. He also ran a private investigation agency, as part of which he trained employees in de-escalation techniques.
His Honour Judge Ellis found as follows:
- In the heat of the moment the Claimant’s training deserted him. He did not attempt to de-escalate the situation and wait for the police in his vehicle. Instead he took matters into his own hands and was determined to make a citizen’s arrest using such force as was necessary.
- It was not reasonable to require the Defendant to undertake a risk assessment of the risk to the Claimant if involved in an RTA in the course of his employment. The Defendant was satisfied that he had a driving licence and was entitled to assume that he was familiar with the Highway Code, which states what needs to be done.
- The Defendant was not under a duty to assess the risk of violence following a road traffic accident. The further risk of harm was not reasonably foreseeable. In addition, it was not foreseeable that a van driver would do as he did here, nor that the Claimant would take matters into his own hands and effect a citizen’s arrest.
- Even if a risk assessment had been undertaken and training given, he was not satisfied that such steps would have had any causative impact.