A Victory for Common Sense - Court rules that assessment of every risk is not realistic

In the case of Hodgkinson v Renfrewshire Council, the Scottish Courts rejected a claim for personal injury saying that it was, “clearly not realistic to expect an employer to risk assess every single detail of an employee’s work”.

Heather Hodgkinson, who was employed as a gardener, made a claim for personal injury after being hit in the face by a park gate. The gate was fitted with a metal lug about five feet above ground level to stop it swinging beyond the gate post into the street. The court heard arguments from Ms Hodgkinson’s legal team to the effect that a risk assessment should have been carried out on the operation since opening the gate was a necessary part of her work.

It was agreed the gate was work equipment and the park a workplace. Both the Provision and Use of Work Equipment Regulations 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992 impose an absolute duty but define suitability as “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person”.

Judge Lady Wise held that no damages were due to Ms Hodgkinson because she had failed to prove that the construction of the gate gave rise to more than a mere possibility of injury if opened carelessly. In handing down her judgement she said that “the particular gate in question, fitted with the lug at eye level, had been opened each day for many years without any incident taking place” and furthermore “there was nothing to suggest it posed a risk of harm to employees.” The judge attributed blame for the accident to the actions of Ms Hodgkinson herself, not to the presence or absence of the lug.

Our Comment

The case has been hailed a victory for common sense. While each personal injury case will turn on its specific facts, Hodgkinson v Renfrewshire Council does show that the courts are willing to take a pragmatic view on liability for accidents which involve employees engaging in routine low risk activities. The gate was found to be suitable and there was no evidence of deterioration or lack of maintenance. Therefore, there was no breach of the relevant regulations. As the judge observed, in these circumstances the claimant could only have succeeded if liability attached to an employer whenever an accident happened, whatever its cause.