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Reynolds v Strutt & Parker LLP, Queen's Bench Division, 15 July 2011

8 September 2011
The issues

Employment – course of employment – team building day – whether employer liable for accident which occurred during out of office event – cycle helmet.

The facts

On the 19 June 2008 the claimant had a serious head injury when he fell from a bicycle whilst he was competing in a race between four cyclists on a track near Deal in Kent. It happened when his bicycle collided with that ridden by a work colleague. The race was one of three activities in which the defendant’s Canterbury office staff were taking part at the end of an afternoon which had been described as “a team bonding event”, “a team bonding day”, “an office outing” and “a thank you to the staff”.

The claimant brought a claim for personal injuries against his employer, alleging that he was at work during the event. The collision occurred, the judge found, as the result of a deliberate attempt by the claimant to force his work colleague out of the race. Notwithstanding the claimant’s evidence, the judge’s finding was that the claimant made a deliberate decision to prevent his colleague passing him, in the expectation that his colleague would brake, avoiding a collision and allowing the claimant to win the race.

At the time of the accident, although cycle helmets were available, the claimant was not wearing one.

The decision

Although a risk assessment had been undertaken, it had been done by two people who lacked the necessary skill to make a suitable to sufficient assessment of risks associated with bicycle racing and, in particular, they had completely overlooked the most obvious of risks, namely that of collision. Equally, neither assessed properly the need to recommend, let alone require, the wearing of cycle helmets. The failures to carry out risk assessment involved breaches of Regulations 3(1) and 10 of the Management of Health and Safety At Work Regulations 1999 and Regulations 8 and 9 of the Provision and Use of Work Equipment Regulations 1998, and Regulations 4, 9 and 10 of the Personal Protective Equipment At Work Regulations 1992, and Regulation 12 of the Workplace Health & Safety Welfare Regulations 1992. However, none of those Regulations had any application unless the Claimant was at work.

Was the claimant at work at the time of the accident?
Attendance was not compulsory. Neither was engagement in any part of the event. Equally, it had been argued for the claimant that employees were expected to attend, particular given that it was a Thursday afternoon when they would otherwise have been at work and that the event was managed and organised by the employer, at least in part with the person fostering an espriit de corps to the employer’s benefit. The leading cases which dealt with the concept of the course of employment dealt almost invariably with the issue of whether a wrongful act was within the course of employment so as to attract vicarious liability rather than the pure concept itself. The ‘close connection’ test said nothing about what degree or type of connection was necessary. Following Ilkiw v Samuels [1983] the proper approach as to the nature of employment was a broad one, ie: not by trying to dissect the task of the employee into its component activities, but by asking what was the job on which he was engaged and answering that question as a jury would. Applying this approach, it was clear that a jury would simply say that the defendant’s staff were not engaged in any job, but were just having a good time.

A third approach, which was sometimes referred to as ‘being engaged in something which is an ordinary incident of the work upon which someone is engaged’, also suggested that it was impossible to say that having a fun day out was an ordinary incident of normal employment. To hold that the employer should be liable offended a sense of justness and reasonableness in terms of a conclusion that the Health and Safety At Work Act was ever intended to be of application in circumstances of this case.

It was not the case however that there was no duty owed by the defendant to the claimant. Nor was it argued that the defendant was not vicariously liable for any breach of duty they owed in that the organisers of the event, who had carried out the risk assessments, were certainly acting in the course of employment when arranging and organising the event. The duty on the defendant in this case was to take such reasonable care as any reasonable employer would take to ensure that the employees were reasonably safe and engaging in the activities which the employer had arranged and in the making and management of the arrangements that were being organised. That duty of care included the making of adequate and suitable risk assessments. That failure had been indirectly causative of the injury – applying Uren v Corporate Leisure UK Ltd [2011]. Had an appropriate risk assessment been carried out, the most significant risk, ie: of collision, would have been clear. It would have led to the employees being required to wear helmets in cycle racing. If an employee had refused to wear a helmet, then they should, in accordance with a proper assessment, have been excluded from the bicycle racing activity.

The claimant had been contributorily negligent. He had been aware that cycle helmets were available. If, as had been found in Smith v Finch [2009], those who failed to use helmets on roads were contributorily negligent, those who engaged in competitive racing, even for fun, should be held partly to blamed for the failure to protect themselves.

The claimant had to be responsible, not merely in respect of a failure to wear a helmet, but also in terms of assessing relative blameworthiness and causative potency. Given the claimant’s responsibility for the collision, he had to accept the greater proportion of the blame and a fair apportionment of liability would be two-thirds / one-third in favour of the defendant.

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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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