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Yorkshire Traction Company Ltd v Searby, Court of Appeal, 19 December 2003

5 January 2004
The issues

Provision and Use of Work Equipment Regulations 1992 – assault by passenger – bus driver.

The facts

Mr Searby was employed by Yorkshire Traction Company Ltd as a Bus Driver. Late one evening on the 1st November 1998 he was assaulted by a passenger. He suffered physical injuries and developed a Post Traumatic Stress Disorder. The Judge described the assault as a “typical spur of the moment punch-type attack”. Mr Searby alleged negligence and a breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1992, namely that he had not been provided with suitable work equipment and that in particular there should have been a screen set up, separating the driver from the passengers.

Mr Searby had twice been assaulted before in the previous 10 years. During the 14 years prior to the accident, there had been an average of 8 assaults per year on Yorkshire Traction Company Ltd’s drivers. Some bus companies around the country provided screens. Some bus companies did not. The Judge found for the Claimant. The Defendant appealed.

The decision

1. In determining whether a party acted reasonably, the circumstances were to be judged as at the date of the accident. Although absence of complaint from the work force was not conclusive, it was a substantial factor in cases such as this one. There had been substantial evidence from a number of experienced Union Officials as to the problems involved with regard to the insertion of screens, even to the extent of drivers taking action to have removed from buses purchased by the companies, the screens which had been present in them. Union Officials were still urging that there be agreement with the work force before screens were decided upon.

2. The risk of injury to a bus driver from an assault by a passenger was in 1998 very low,
although the number of incidents had increased. Although screens had been successfully trialed in Cleveland, the Judge was not entitled to take the view that the Company had been negligent in failing to insert screens in South Yorkshire. The measure of risk, the perceived disadvantages, and the attitude of the work force, were such that the failure to insert screens did not amount to negligence.

3. As to suitability for the purposes of Regulation 5 of the Provision and Use of Work Equipment Regulations, each party relied on the decision of the Court of Appeal in Marks & Spencer Plc -v- Palmer. That case determined that the test for liability involved a consideration of the degree of risk.

4. The Regulation included protection from risks created by external forces and thus in relation to a public service vehicle, the word “conditions” involved consideration of the weather conditions in which it was used and a consideration of the number and likely behaviour of passengers and other road users.

5. Neither the directive nor the Regulation however required complete and absolute protection. An estimate had to be made of the extent of the risk presented by the alleged defect. Appeal allowed

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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