The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company had said that helmets were available, and recommended. The claimant said there had been no mention of helmets in the introduction to the race, though he was experienced as a cyclist.
Held: The activity could not fairly be described as having been within the claimant’s course of employment. Nevertheless one could not simply ignore the employment relationship, and a comparable duty of care arose. No sufficient risk assessment had been carried out.
The course providers would have insisted than any member of the public contracting with them should wear a helmet. Moreover: ‘It was argued that, because the claimant was an experienced cyclist, he could, had he wished, have chosen to use a helmet, and the fact that he did not supports a conclusion that he would not have complied with any requirement. I do not accept that argument. If the defendant had required the wearing of helmets and some of the staff refused to wear them, then they would, quite simply, and in accordance with the assessment they should have made, have excluded them from the bicycle racing activity.’
Nevertheless the claimant was contributorily negligent. Other riders wore helmets, they were clearly on view, and he could have requested one.
As to the apportionment of liability: ‘, it is not simply a matter of assessing the comparative blameworthiness of the parties, but of their respective responsibility for the damage, particularly bearing in mind the defendant’s duty of care involved, on my findings, taking precautions against the claimant’s own negligence. That needs to be weighed against the fact that the claimant’s fault was causative of the injury he suffered. In the final analysis, I need to assess both relative blameworthiness and causative potency of the parties’ respective faults. In my judgment, given my findings as to the claimant’s responsibility for the collision, he must accept the greater proportion of blame. In these circumstances, in my judgment, a fair apportionment of liability is two thirds/one third in favour of the defendant.’
Judges:
Oliver-Jones QC
Citations:
[2011] EWHC 2263 (Ch)
Links:
Statutes:
Health and Safety at Work Act 1974 52, Personal Protective Equipment at Work Regulations 1992 3(2)(e)
Jurisdiction:
England and Wales
Citing:
Cited – Froom v Butcher CA 21-Jul-1975
The court asked what reduction if any should be made to a plaintiff’s damages where injuries were caused not only by the defendant’s negligent driving but also by the failure of the plaintiff to wear a seat belt. It had been submitted that, since . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – SO v Hsbc Bank Plc and Another CA 3-Apr-2009
Etherton LJ held that ultimately the decision as to whether there is vicarious liability ‘is a conclusion of law based on primary facts rather than a simple question of fact’. . .
Cited – Smith v Finch QBD 22-Jan-2009
The claimant cyclist was severely injured in an accident when hit by a motorcyclist, the defendant. He was not wearing a cycle helmet, and the injuries were to his head. He was slowing down to turn right, and was hit a heavy glancing blow by the . .
Cited – Ilkiw v Samuels CA 1963
The plaintiff was injured by the careless manouvering of a lorry by the defendant’s employee.
Held: When considering the vicarious liability of an employer, the proper approach to the nature of the servant’s employment is a broad one. . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Ilkiw v Samuels CA 1963
The plaintiff was injured by the careless manouvering of a lorry by the defendant’s employee.
Held: When considering the vicarious liability of an employer, the proper approach to the nature of the servant’s employment is a broad one. . .
Cited – Ministry of Defence v Radclyffe CA 30-Jun-2009
The court held the appellant Ministry liable for a soldier’s injuries incurred when jumping from a high bridge. A senior officer had earlier ‘assumed responsibility to prevent the junior soldiers from taking undue risks of which he was or ought to . .
Cited – Uren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Negligence, Health and Safety, Vicarious Liability, Employment
Updated: 02 June 2022; Ref: scu.464218