Violence at Work (UK)


Violence at Work - Case Law

The aim behind this section of the web site is to illustrate the way the civil courts have been interpreting 'duty of care' responsibilities.

 

The duty to conduct a (full and sufficient) Risk Assessment

Whilst, there is no requirement under Common Law for an employer to have conducted a formal risk assessment, it is nevertheless an expectation of what a 'reasonable' employer would do.

The case of Stokes v Guest, Keen and Nettlefold (Nuts and Bolts) Ltd., 1968, provided a 'statement of general principle' that the overall test is "the conduct of a reasonably prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know."

In Ealing Borough Council v Kentucky Fried Chicken (30 July 2002), the fast food chain was successfully prosecuted for a number of breaches relating to the protection of staff against violent attacks by customers. The Court found that had they carried out a specific Risk Assessment, they would have appreciated that the risk of robbery warranted such protection.

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In the Scottish case of Collins v First Quench Retailing Limited (31 January 2003), an Off Licence manager, following an armed robbery at the store, claimed her employers were at fault for failing to provide her with adequate protection. Although the term risk assessment was not mentioned directly in the judgement, the judge considered what the risk was and, effectively, what control measures should have been in place.

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Provision of 'health risk' information to employees

In Waugh v London Borough of Newham Council (2002), a teacher who had been assaulted by a pupil successfully claimed that their employer had, by omitting to warn a pupil escort about a child’s history of challenging and dangerous behaviour, failed to minimise the risk of injury.

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NOTE: In December 2008, London Borough of Newham Council paid £275,000 in an out-of-court settlement to another teacher, Colin Adams, aged 50, who claimed compensation following an assault by a 12 year old pupil that took place in 2004 at Kingsford Community School in East London. Apparently, the boy had been misbehaving in another teacher's class and Mr Adams, as head of department, had gone to his aid. He ordered the boy to leave but the pupil refused. When Mr Adams then left the room he was attacked by the boy from behind. The boy had a history of violence, having previously attacked pupils and a security guard at a library opposite the school but, significantly, staff were not warned about the danger. Mr Adams said "If I had known this student had had a history of violence I would never have turned my back on him."

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In February 2004, Oxfordshire County Council was ordered to pay £230,000 compensation to a teacher following the council’s failure to inform her about a pupil’s history of attacks. And, it would have been a lot more if the Court hadn't decided that, by telling the youth to "shut up", the teacher had contributed significantly to the severity of the outcome. Consequently, the award was reduced by twenty five per cent!

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In October 2007, at Bournemouth County Court, Dorset Healthcare NHS Trust were ordered to pay nearly £5,000 compensation to an unnamed healthcare assistant who had been injured in an incident at work in April 2003, when he tried to help a colleague being attacked by a patient. The man had been working at the Kings Park Community Hospital which cares for people suffering from dementia, Alzheimer's disease or similar conditions. Patients come in for periods of time when they are having bad spells or to provide respite for their usual carers. He had not been told by his employers that the advice on how deal with this particular patient was to leave him alone if he started becoming aggressive. The court found that his employers should have made sure he was aware of this advice and that, if they had done so, the incident could have been avoided.

Representing the claimant, Jeremy Thompson from Thompsons Solicitors in Bristol, said: “This case, like so many others, highlights the dangers that the caring profession face when proper health and safety measures are not put into place and risk assessments are not taken into account. Our client was clearly put at risk by his employer because they failed to tell him about the specific dangers of working with this individual. These risks were clear and preventable.” .

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Provision of a safe system of working

On 14 June 1998, whilst was employed as a health care assistant with the Bradford Community Health NHS Trust at the Kestrel unit of Lynfield Mount Psychiatric Hospital in Bradford, Claire Cook was assaulted by a patient who had a history of behaving violently.

She complained successfully at the High Court, (Leeds District Registry) that her employers were guilty of negligence, in so far as, they had placed her unnecessarily in a position where there was foreseeable risk of injury to her.

The judge, Mr Recorder Burrell QC, held that the situation was one where her presence near to her assailant at the time of the assault was unnecessary and that the standard of care required in providing a safe system of work in these particular circumstances required all persons not immediately engaged in the minding or observing, or caring duties to be put in as safe a position as possible, i.e. not subjected to close proximity to highly dangerous and unpredictably violent individual unless it was unavoidable.

Subsequently, in an appeal heard on Wednesday, 23 October 2002 at the Royal Courts of Justice, Bradford Community Health NHS Trust invited the court to reverse the earlier decision by Mr Recorder Burrell QC.

The Appeal was dismissed.

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On Monday 26th November 2007, at the Court of Appeal in London, Jennifer Rhodes-Hampton won her case for compensation from her employer, Worthing and Southlands Hospitals NHS Trust, for injuries caused to her by a patient at Worthing Hospital.

The details of the Court of Appeal's Judgement may be considered 'essential reading' for anyone trying to get an understanding of how the courts are interpreting 'Duty of Care' responsibilities - and the Transcript is available to view free online: Click Here

In brief, Mrs Rhodes-Hampton, 47, was working as a midwife at Worthing Hospital when, on 20th August 2000, she had been attacked by a female patient whose baby she had just helped deliver. She was punched and kicked so hard she suffered spinal injuries - which caused her significant pain and prevented her from resuming work.

Mrs Rhodes-Hampton subsequently claimed compensation from the Trust alleging: first, that the Trust (as her employer) had failed to provide a safe system of work and a protocol of safe practice for the 'Recovery Suite'; second, that there were insufficient properly trained staff present in the 'Recovery Suite'; third, that the Trust should have fitted 'cot sides' to the beds in the recovery room in line with the practice in the main operating suites within the hospital; and fourth, that anaesthetist, Dr Haraharan, the senior member of staff present, had been negligent in failing to react properly (or at all) to the patient's first outburst of violent agitation by calling for the assistance of more staff and/or by calling for cot sides to be fitted or by instructing the appellant as to how she should react or by providing assistance himself.

After strongly criticising the conduct of the anaesthetist, Dr Haraharan (para 28), Lady Justice Smith went on to conclude that the Trust's failure to arrange for more staff to be in attendance and/or to fit cot sides was causative of the injury suffered by Mrs Rhodes-Hampton. Lady Justice Smith said it seemed obvious that, had cot sides been in position and/or had there been an adequate number of staff present, there would have been no need for Mrs Rhodes-Hampton to make her single-handed attempt to protect the patient; and that if she were involved at all, it would have been in concert with others. Consequently, whilst the Judge couldn't say with certainty that Mrs Rhodes-Hampton would not have been injured, it seemed to the Judge that the dangers of Mrs Rhodes-Hampton being injured would have been reduced to the extent that she could say with confidence that she would probably not have been. Lady Justice Arden and Lord Justice Ward agreed with Lady Justice Smith - and Mrs Rhodes-Hampton had won her case!

Readers of the Appeal Hearing Transcript will also note that Lady Justice Smith dismissed claims by the Trust's legal representative that Mrs Rhodes-Hampton 'had not been obliged to approach the patient to prevent her falling from the bed and had contributed to her injury by her own negligence in failing to ask for cot sides to be fitted, failing to inform the anaesthetist that she was not sufficiently trained to be left with the patient, failing to call for assistance, failing to locate and use the emergency button and failing to react properly to the first incident by calling for assistance etc. Mrs Rhodes-Hampton's solicitor, Richard Thorn, of Richard Thorn and Co., (T: 01273 625600), said after the verdict: "She was abandoned by everyone to cope with a patient who was going berserk. It was a devastating incident and the legal struggle has been considerable. The health authority has resisted every step of the way." Note: When Judge Simpkiss dismissed Mrs Rhodes-Hampton's claim at Brighton County Court, it left her facing more than £50,000 in legal bills! A spokeswoman for Worthing and Southlands Hospitals NHS Trust said: "The trust successfully defended this case at trial in September 2006. It is therefore disappointed at the Court of Appeal's ruling but hopes that it will now be possible to resolve the question of damages amicably."

 

Provision of Appropriate Training

S2 of the Health & Safety at Work Act 1974 requires employers to provide employees with such information , instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of the employees.

 

Training in physical intervention and restraint

In Dominic Harvey v Northumberland County Council 2003, the Court of Appeal was asked to revoke an earlier ruling by a trial judge which went in favour of Mr Harvey, whose claim for damages had arisen out of an accident that occurred at his work on the 9th June 1998.

Mr Harvey's claim was that whilst restraining an unruly child, he was caused to twist sharply causing injury to his right knee. He blamed his injury on inadequate training in restraint techniques.

The Appeal was dismissed - and the judgement provided some really important advice for managers / employers of people who are relied on to carry out physical interventions.

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Training in making arrests

Whilst not strictly Case Law because it was an out of court settlement, a claim by a security guard who was injured whilst effecting an arrest of a burglar that his employer was negligent in not providing him with training to apprehend assailants which may have prevented him from being so badly injured, resulted in his employer, Manchester University, paying him £13,000 in compensation (Dec 2007).

The security guard, Gerard Darlington, aged 48, brought his claim for compensation with the support of his union UNISON and was represented by personal injury specialists Thompsons Solicitors.

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Lone working

In the Scottish case of Collins v First Quench Retailing Limited (31 January 2003) an employee sought from her employer following an armed robbery at the Off Licence where she worked. Although, it was accepted by the court that the general security provisions and training were adequate, it was considered that the prospect of the robbery occurring would have been substantially diminished had there been two members of staff on duty.

The Claimant was awarded £179,000 damages.

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In contrast to the result in Collins v First Quench Retailing Limited, in Humphrey v Tote Bookmakers Limited, a betting shop manager, suffering from post traumatic stress disorder following a robbery, failed in his claim for damages. This was because the Court felt that, in the particular circumstances, it was unreasonable to expect the employer - in that particular situation - to have ensured that two members of staff were present when the shop was to be opened.

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Protective screens

In Ealing Borough Council v Kentucky Fried Chicken (30 July 2002), the fast food chain was successfully prosecuted for a number of breaches including failing to erect glass screens and deep counters. The Court found that had they carried out a specific risk assessment, they would have appreciated that the risk of robbery warranted such protection.

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However, the Court of Appeal took the opposite view in Yorkshire Traction Co Limited v Searby (2003).

In this case, a bus driver who had been assaulted by a passenger argued that there should have been a screen to separate him from passengers and that his employers had been negligent in not providing one.

The claimant initially won his case, however, the Bus Company then appealed successfully. It was shown that the risk of assault had been formally assessed (and the facts showed that actually the risk of injury to bus drivers from assaults by passengers was very low.) The employers had also consulted with drivers and Trade Unions - who had raised serious safety objections about protective screens (one particular objection was the problem of reflection of light on the screens at night). The employer had weighed up the pros and cons and decided on balance against installing the screens.

The Court of Appeal decided that the failure to fit screens did not amount to negligence.

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Personal Protective Equipment

In Henser-Leather v Securicor Cash Services Limited (2002), the Claimant successfully argued that in failing to provide him with body armour his employer had been in breach of their statutory duty .

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More on English Case Law

Judgments from the Civil and Criminal Divisions of the Court of Appeal, and from the Administrative Court, selected by the judge concerned, are available for free on the Bailii (British and Irish Legal Information Institute) database. Click Here