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Wycherley v South Somerset District Council (1) and Mr K Antoski t/a Yeovil Martial Arts Centre (2), Yeovil County Court, 12 March 2004

18 March 2004
The issues

Leisure – Self Defence – Management of Health & Safety at Work Regulations 1999 – Risk Assessment – Negligence

The facts

The Claimant was employed by the First Defendant, South Somerset District Council, as a Fraud Investigations Officer. Part of this role involved her visiting clients in their homes to investigate cases of suspected fraud. In 1999, a training need was identified for the staff in the Fraud Investigation Team to be trained in basic self-defence. Four of the staff members were asked to attend a course run by the Second Defendant at the Yeovil Martial Arts Centre, set up by the First Defendant’s Training Officer. As a result of an internal issue, the Claimant could not attend the course with the other three staff members. It was therefore arranged that she would attend separately on a 1-1 basis after the other three staff members. The Council asked the Second Defendant to provide two sessions of three hours each.

The three staff members to attend the course prior to the Claimant all came through successfully. The Claimant similarly came through her first 3-hour session well and without incident. On 4th August 1999, the Claimant attended her second 3-hour session. The Claimant alleged that about 2 hours into the course the Second Defendant had told her he was going to show her an advanced throw, which she would never be able to carry out as she would never reach the required standard to do so. The Claimant admitted that she was not a good student and speculated that the Second Defendant had become tired of her lack of progress and included the advanced throw to make things more interesting. The Claimant alleged that when thrown the first time, she fell heavily on her right side, causing immediate pain to her left knee. Despite this, the Claimant allowed herself to be thrown again, which by her evidence caused severe pain to her left knee, after which she asked for the session to be stopped. The Claimant did not report her injury to the Second Defendant, although it subsequently became clear that she had suffered a torn medial meniscus to her left knee.

The Claimant alleged negligence against the Second Defendant and negligence and breach of statutory duty against the First Defendant, her employers, for failing to carry out a risk assessment, failing to warn her of the risks of attending the course and therefore failing to ensure she was provided with a safe system of work at all times.

In evidence, the Second Defendant confirmed that he would not have carried out any advanced techniques on a novice and further that all the techniques he would have taught would have been things that the Claimant and her colleagues would be able to put into practice. The Second Defendant however had very little recollection of the course in question, save that he could recall that no injuries were reported to him. The First Defendant’s case was that care was taken in choosing and booking the course (although the First Defendant was unable to produce anything other than hearsay evidence as to this point, the Training Officer in question having since died). Furthermore, the First Defendant argued that it was reasonable for the employers to have asked the Claimant and her colleagues to attend the course, taking into account the risks they faced in their jobs and that the potential risk of injury from a physical course of that nature should have been self-evident.

The decision

1. It was accepted, and indeed pleaded within the First Defendant’s Defence that the Management of Health & Safety at Work Regulations 1999 did not apply. The alleged incident was prior to their coming into effect;

2. The case against the Second Defendant was adjudged as the easier to determine. The Court accepted that the Second Defendant had very little memory of the course in question. It was found that this was unsurprising seeing as the first notification that the Second Defendant appeared to have received about the incident was within the Letter of Claim sent in July 2002, 3 years on. Nevertheless, the Second Defendant had described in evidence, which was accepted, the sort of things he would teach on a basic course of this type and confirmed that this would not involve any advanced techniques or throws.

3. The Court accepted the Second Defendant’s professional expertise, qualifications and reputation and further that he would not have taught the Claimant or her colleagues anything that would be beyond their capabilities or irrelevant to their needs. The case therefore against the Second Defendant failed.

4. In respect of the case against the First Defendant, this was adjudged as more serious, taking into account the First Defendant’s non-delegable duty to the Claimant as her employer.

5. In view of the lack of evidence, the Judge found that there had been insufficient research into the course that was provided and further that there had not been a risk assessment carried out. However, there could not be any criticism in hindsight of the course nor the trainer selected, particularly as the Claimant’s three colleagues, who had attended the course prior to her, had come through without incident.

6. Had the risk assessment been carried out, it would have identified the risk of injury. However that risk should was self-evident. The employer was entitled to weigh that self-evident risk against the benefit to its employees, including the claimant, of attending the course. The risk of injury from assault was greater than the risk of attending a course in self-defence. The employer could not be said to have weighed the risk incorrectly.

7. In any event, even if the risks had been made explicitly known to the Claimant, she would probably still have attended the course. By her own evidence, she had stated that the course was a good idea and that she had enjoyed the first session. Therefore, even if the Claimant had been able to prove her case as to primary liability against the First Defendant, on causation she would fail.

Claim dismissed.

Comments

It may be interesting to note that as a result of the dismissal of the Claimant’s case, both Defendant’s were awarded their costs in full, with the District Judge making deductions only in respect of Counsel’s fees, claimed in excess of the maximum £750.00 permitted. The District Judge’s finding as to the time claimed by each Defendant in relation to document work was informed by the fact that both Defendants together had failed to rack up the 50 hours of document work claimed by the Claimant!

For further information please contact Kate Winston on katewinston@veitchpenny.co.uk or Joel Kendall on kendall@12kbw.co.uk.

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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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