Personal injury law

Employer's duty of care and the novus actus of an assault

Cook v Bradford Community Health NHS Trust, CA (Lords Justice Schiemann and Scott Baker and Mr Justice Pumphrey), 23 October 2002

In [2002] Gazette, 28 November, 31, this column considered the novus actus interveniens of an employee deliberately pushing a platform on which his colleague was working causing him to fall off and suffer injury.

The employer was held not responsible, although this was a little surprising.

Most novus actus cases at the place of employment involve acts of violence by third parties.

In Charlton v The Forrest Printing Company Ltd, CA [1980] IRLR 331, Lord Denning gave a judgment which has maintained its strength.

Mr Charlton, a chief chemist at the defendant company, had been sent to collect the wages from the bank on a Friday morning and suffered damage to his eyesight when ammonia was sprayed into his eyes by robbers who stole the 1,500 he had collected.

The Court of Appeal dismissed his claim on the basis that it was custom and practice among businesses of the defendant's size for employees to collect the wages and not to use one of the security companies.

Additionally, the employer had warned the claimant that he should vary his method of picking up the money in terms of the vehicle he drove, the bag he used to collect the wages, etcetera, in order to put robbers off the scent.

The court relied on Lord Reid's judgment in Wagon Mound (No 2) [1967] 1 AC 617, when he stated 'the general principle is that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which should never influence the mind of a reasonable man'.

The judgment has always struck me as being harsh on a man whose eyesight was permanently disabled, particularly when one considers that the defendants had changed their bank from one in central London because of the attempted robbery of one of their employees while collecting the wages.

There seems to have been a foreseeable risk that Mr Charlton would suffer the consequences of a further robbery.

In the instant case, Ms Cook was a healthcare assistant for the defendants working at a psychiatric hospital in Bradford.

She was taking cups of coffee to her colleagues in the 'seclusion suite' of the unit where violent patients were kept.

The patient who subsequently assaulted her was unstable, unpredictable and dangerous to the extent that he apparently wanted to hit the staff as he thought they were eating his brain.

He had a history of egregious violence and threats of violence.

As Ms Cook was delivering the coffee, the patient asked to go to the lavatory.

While she was still in the suite the door was opened too far, he walked out, went straight towards her and punched her hard in the face.

She suffered substantial psychiatric injuries as a result.

The Court of Appeal found in favour of Ms Cook because the defendants had a duty 'not to place her unnecessarily in a position where there is a risk of foreseeable injury to her'.

The accident could have been avoided by not having let the patient out of his room until she had left the suite.

The system was negligent.

In taking up Lord Reid's dicta, an employer could have taken simple steps to eliminate the risk.

The defendants argued a number of points about Ms Cook's qualifications as a care worker.

The court agreed that it would have been a different situation if the patient had attacked one of his two careworker minders.

The employers would then have had a responsibility to assess the risk and minimise it as it would have been a risk 'ordinarily incidental to their particular tasks' (Lord Justice Schiemann).

However, Ms Cook, had no reason to be present when the patient was released.

The risk was avoidable.

The approach of the Court of Appeal in Cook seems more appropriate than Lord Denning's judgment in Charlton.

The cost of employing a security company in Charlton would have been relatively small according to the figures stated in the transcript.

To avoid the risk of a violent assault, which more than occasionally goes hand in hand with a robbery, by telling your chief chemist to vary his method of picking up the wages does not fairly seem to satisfy the duty of care.

The approach in Cook sets out the law relating to assaults at work in more considerate terms.

By Simon Allen, Russell, Jones & Walker, Sheffield