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CA S E LAW
Flawed risk assessments lead to appeal Appeal judge finds for worker who suffered head injuries after falling from the back of a van. worker appealed against the dismissal of his claim for damages for personal injury and won. But his claim was subject to a 50% discount for his own contributory negligence. The claim was brought against his employer following an accident the employee suffered at work and highlights how important it is that an organisation’s risk assessments adequately identify the risks from the task in hand. The employee had fallen from the back of a box van or lorry while making deliveries. He had lowered the tail lift on the vehicle and shortly afterwards he either stepped backwards, or lost his footing, and fell approximately 1m to the ground, causing him to strike his head and sustain serious head injuries. A work activity assessment form had identified as hazards both working at height and operation of the tail lift. The activities were placed in a high-risk band. The employee asserted that the employer had breached the Work at Height Regulations 2005, in particular regulation 4 on organisation and planning of work at height, and regulation 6 on the avoidance of risks from work at height. He said that measures should have been in place to ensure that the tail lift was always raised if
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a worker was in the back of the lorry. The judge found there to be no breaches of these regulations, and that it would not have been reasonably practicable to raise the tail lift when the back of the lorry was occupied. The employee submitted that the judge wrongly treated the test of ‘reasonable practicability’ as involving a simple balancing exercise, rather than one in which a measure was only not reasonably practicable if there was gross disproportion between the quantum of risk and the sacrifice involved in taking that measure.
Appeal and judgement At appeal, it was discussed that the work activity assessment form identified the risk of fall injuries from working at height and operation of the tail lift, but had wrongly assumed there was a safe system of work document in place for the loading of vehicles. The assessment had also identified a ‘toolbox talk’ for safe working with delivery vehicles, yet that was also not in place, and only implemented after the accident. The risk should have been addressed by the employer pre-accident, and failure to do so constituted a breach of
A ‘toolbox talk’ for safe working with delivery vehicles was only implemented after the accident the Work at Height Regulations 2005. It was also considered whether the previous judge addressed the concept of reasonable practicality. It was found that the judge misdirected himself and wrongly decided that the measure was not reasonably practicable. The risk had been considered by the employer as high and the measure was implemented after the accident. It was also discussed how the claimant had lowered the tail lift and was therefore aware that there was a drop from the back of the vehicle. The judge allowed the appeal and found for the claimant, subject to the 50% deduction for his own negligence.
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