NI JUDGMENT UPDATE (PERSONAL INJURY)
Ruth Christine Mullen v Samantha Kerr (Defendant) and South Eastern Education and Library Board (Third Party)  NIQB 69 - Stephens J
Relevance: Casualty; Occupiers Liability; Employers Liability; Workplace Health and Safety Regulations (risk assessment and organisation of traffic routes).
Judgment entered for the Third Party in relation to third party proceedings; failure to carry out a formal risk assessment not indirectly causative of injury; precautions taken were adequate and organisation of traffic route sufficient.
Instructed on behalf of the Third Party: Joyce McKane, McKinty and Wright Solicitors.
The Plaintiff was employed by the Third Party (the Board); in November 2013, she was knocked down by a car driven by the Defendant on a private access road to the school where she worked. Damages were agreed at £200,000. The Defendant admitted liability and brought third party proceedings against the Board on the basis that:
- as owner occupier, the Board was negligent in the design of the road by failing to have vehicle and pedestrian routes separated by a raised footpath or markings.
- as the Plaintiff’s employer, the Board was in breach of the statutory duty imposed by Regulation 17 of the Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993[i] and Regulation 3 of the Management of Health and Safety at Work Regulations (NI) 2000.[ii]
Whilst a formal risk assessment was not carried out, steps were taken to manage and minimise vehicular use of the road. The head teacher had been at the school from 2007 and gave evidence that, during that time, to her knowledge, there had been no RTCs, no near misses and no one had been injured. The Plaintiff gave evidence that she had walked the same route to work for 10 years before the accident, had felt safe doing so and did not know of any complaints.
Legal principles and case law [iii]
Stephens J set out that: -
“… for the failure [to carry out a risk assessment] to be indirectly causative of the injury the plaintiff has to establish on the balance of probabilities that (i) a suitable and sufficient assessment would probably have resulted in a particular precaution being taken and that (ii) that particular precaution would probably have avoided the injury.”[iv]
He also commented that: -
“… in circumstances where there is a common law duty to take reasonable care then the logically anterior requirement is for consideration to be given to the risks. In such circumstances the failure to carry out a risk assessment, even if it is not a statutory requirement, can be evidence of a breach of the common law duty of care.”[v]
Turning to an employer’s duty under Regulation 17 (‘organisation and suitability of traffic routes’) of the Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993, Stephens J emphasised the following words from Regulation 17 – ‘suitable’, ‘sufficient’, ‘suitably’ and ‘necessary’. Caerphilly County Borough Council v Button[vi] was referenced in respect of the proper ‘suitability test’[vii] to be used to determine if an employer has discharged its duty, emphasising that the test is: -
“very similar to the test at common law as to whether sufficient care has been taken by the employers, or whether they had fallen below the standard of care which was to be expected of them as employers.”[viii]
Stephens J sets out that is appropriate for the court to make a broad qualitative assessment of suitability[ix] both in negligence and statutory obligations, in consideration of factors including: the likelihood of an accident occurring; the possible gravity of any injury which may occur; the gravity of injuries which have actually occurred and the history of accidents or complaints. Taking all such considerations into account, the court should then decide objectively if the organisation of the traffic route in the workplace is suitable sufficient and necessary.
Turning to the facts in this case
Stephens J put it that:
“The issue is not whether these precautions could be taken but whether (a) it was negligent or in breach of statutory duty not to take these precautions in so far as an adult such as the plaintiff was concerned (b) whether if they had been taken the plaintiff would have used the way reserved for pedestrians and (c) whether if a risk assessment had been carried out those precautions or some other precautions would have been taken by the third party in relation to the risk to pupils and that those precautions even if implemented for pupils would probably have avoided the injury to the plaintiff an adult.”[x]
(Bearing in mind the testimony given by the Plaintiff and head teacher set out above), Stephens J did not consider the layout of the access route in all the circumstances posed a risk. He pointed out that “The risk from negligent or dangerous driving by a motorist remained but that was not a risk associated with the layout of the access road.”[xi]
In the alternative, the Judge stated that the precautions taken in relation to an adult were “adequate and that the traffic route was suitable for the plaintiff”[xii] finding as fact that “the plaintiff would not have used the layout as suggested by the defendant and the collision would still have occurred even if the defendant’s suggested layout had been implemented.”[xiii]
In respect of the Board’s failure to carry out a risk assessment, Stephens J summed up that:
“The only precaution that I consider would have led to the injury to the plaintiff being avoided was to recognise that the hammerhead road is for all practical purposes a pedestrianised area which should have been formally designated as such by placing a gate for vehicles at the start of that road… However, I do not consider that a risk assessment would have led to this precaution. This means that the failure to carry out a risk assessment has not been indirectly causative of the injury to the plaintiff.”[xiv]
[i] RE: Organisation and suitability of traffic routes
[ii] RE: Risk assessment
[iii] Judgment makes reference to: - ‘The Management of Health and Safety at Work Approved Code of Practice’; Smith v Wilgar t/a Wilgar Contracts  NIQB 67; Scott v AIB Group (UK) Plc t/a First Trust Bank  NICA 3; R v Board of Trustees of the Science Museum  3 All ER; Threlfall v Hull City Council  EWCA Civ 1147; Allison v London Underground Limited  EWCA Civ. 71; Uren v Corporate Leisure (UK) Limited and Ministry of Defence  EWCA Civ. 66; Murray v McCullough as Nominee on Behalf of the Trustees and on Behalf of the Board of Governors of Rainey Endowed School  NIQB
[iv] Para 24 (l)
[v] Para 24 (m)
[vi]  EWCA 1311
[vii] Stephens J notes that the following cases are referenced in Caerphilly re. ‘suitability test’: Marks and Spencer PLC v Palmer  EWCA Civ 1528; Ellis v Bristol City Council  ICR 1614; Taylor v Wincanton Group Limited  EWCA Civ 1581
[viii] Para 29
[ix] Para 30
[x] Para 32
[xi] Para 34
[xiii] Para 35
[xiv] Para 37