Personal injury law

The value of the risk assessment

Griffiths v Vauxhall Motors Limited [2003] EWCA Civ 412 CA (Lords Justice Clarke, Judge, Aldous)

The claimant suffered injury through the 'kick-back' of a tool he used to tighten bolts in fitting seat belts into Vauxhall Astra motor vehicles.

There was evidence of previous instances and 'observation' rather than complaint by the workers, of this phenomenon.

The trial judge found the defendant liable through not carrying out a risk assessment, which would have resulted in an instruction to the workforce to grip the tool more tightly.

This would likely have avoided the claimant's injury.

He did, however, find the claimant 50% to blame for not gripping the tool more tightly.

There was no identifiable defect in the tool and the court found no breach of regulation 4 of the Provision and Use of Work Equipment Regulations1998 when the injury results from 'the inadequate control or mishandling of the equipment'.

The Court of Appeal upheld the judge's finding for the claimant on the basis that, though the failure to risk assess does not give rise to civil liability (regulation 15 (i) of the Management (Health & Safety at Work) Regulations 1999), it was causative of the injury, in that a competent employer would have warned his employees.

Lord Justice Clarke made the following important comment: 'The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether the particular operation gives rise to risk to safety and, if so, what is the extent of that risk, which of course includes the extent of any risk of injury, and what can and should be done to minimise or eradicate the risk.'

This is a refreshing attitude to risk assessment from the claimant's perspective.

It contrasts starkly with the rather lax approach born out of the judgement of Lord Justice Staughton in Hawkes v London Borough of Southwark 1998 CA (unreported), when he defined the need to risk-assess as 'a mere exhortation', and which has been nurtured by a number of subsequent Court of Appeal judgements.

Lady Justice Hale in Koonjul v Thames Link Healthcare Services [2000] PIQR 123 said of risk assessments that they are 'not an end in itself, merely a structured way of analysing and pointing the way to practical solutions'.

With the move to attach civil liability to the failure to risk assess, there is a growing expectation that the responsibility on employers envisaged by the European Commission may shortly be established and the view of her ladyship will become inaccurate.

In terms of contributory negligence, the trial judge had found that the claimant was 50% responsible.

It was argued on his behalf that extremely monotonous work of this type lends itself to occasional inadvertence, thoughtlessness or forgetfulness (see Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 52).

However, the Court of Appeal was reluctant to interfere with the judge's finding, stating that the respondent should have known to hold the gun more tightly.

This aspect of the judgement took up a mere four out of 45 paragraphs.

It seems to have been treated inadequately, considering the effect on the damages.

One's concentration threshold necessarily fails with heavy repetition.

Therefore, it is arguably more important for employers to keep the workforce on their guard through warning and instruction repeated at regular intervals.

A counsel of perfection? The Court of Appeal clearly thinks so.

By Simon Allen, Russell Jones & Walker, Sheffield