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Nicholls v Ladbrokes Betting and Gaming Ltd, Court of Appeal, 11 July 2013

31 July 2013
The Issues

Risk assessment – Work Place (Health Safety and Welfare) Regulations 1992 – duty of employer to prevent robbery

The Facts

Kerry Nicholls started working for Ladbrokes at their shop in Coventry in March 2007. She was employed as a cashier. In November 2007 she was working behind the counter with Mrs Swift, the manager of the shop, when a robbery occurred. Two men, dressed in black and wearing balaclava helmets burst into the shop. One man pointed a gun at the claimant and demanded that she unlock the door into the staff area, open the safe and give him all the money. The petrified claimant did so. The robbers then made their getaway. As a result of the incident the claimant suffered a psychiatric injury. She bought an action against her employer on the basis that the robbery had occurred because the defendant had failed to take proper precautions. The case came to trial in Coventry County Court in August 2010, when the claimant alleged breaches of statutory duty and negligence and in particular a failure to carry out a proper risk assessment as required by Regulation 3 of The Management of Health & Safety at Work Regulations 1999, failure to provide adequate lighting outside the front door as required by Regulation 8 of The Work Place (Health, Safety and Welfare) Regulations 1992 and a number of allegations in negligence including an allegation that the company was negligent in failing to keep the front door locked by operating a magnetic lock which was fitted to it.

The defendant, by its witness evidence and expert evidence placed the blame on the claimant for allowing the robber behind the counter area, contrary to what they described as her training and instruction in the Robbery Prevention Guide. The trial judge and the Court of Appeal described this aspect of the defence as “shocking”.

At trial the judge entered judgment for the claimant in the sum of £9,000. The defendant appealed.

The Decision

The judge had been critical of the defendant’s security expert. However, the expert had given unchallenged evidence to the effect that the shop was situated in an area with a low crime rate, had no known specific threat and no history of violent incidents. The judge had found that there was no policy in force as to the use of a magnetic lock on the door, other than during opening and closing hours. The judge had not engaged all the relevant issues including the issue of whether or not the magnetic lock was intended to be a devise for facilitating visual vetting of customers before entry or with the issue as to whether determined robbers could wait until the door was opened from within by a customer leaving the premises and ‘tailgating’ customers into the shop. The judge had been offered by the claimant no evidence as to the standards to be adopted by a reasonably prudent employer in the industry and fell into the error of substituting his own view as to the standards he thought to prevail.

The assailant feature of the evidence was that a magnetic lock was not perceived in the industry as primarily a vetting device; that it was not shown that the installation of a lock at a betting shop was perceived within the industry as an essential security measure; that it was not shown that the defendant’s security procedures fell short of this standard in the industry; and that there had been no previous incident of robbery at this shop located in an area not perceived at being seen as an enhanced risk. In the light of this evidence the judge was not justified in concluding that a reasonably prudent employer would have imposed a policy of using the magnetic lock at these premises in the hours of darkness.

As to the risk assessment, on the one hand it was not credible that no risk assessment had been conducted by an organisation such as the defendant and the more likely explanation was that the defendant was now unable to locate it or had made insufficient efforts to do so in the context of a low value claim. In any event the failure to produce evidence of a risk assessment did not advance the claimants case. The next question had to be ‘what would such an assessment have shown?’ The judge made no findings on this subject. In the absence of findings about what a formal risk assessment would have shown, the absence of a risk assessment did not help the claimant. Merely to say that a formal risk assessment will have addressed the vulnerability of the shop was to beg the question as to what the vulnerability of the shop actually was. It was trying to say that all shops were vulnerable to robbery. The absence of a risk assessment could not constitute positive evidence about the nature or extent of the risk. It followed from Allison v London Underground that the court needed to consider what a risk assessment would have found, not what topics it would have addressed or matters it would have been in consequence possible to assess.

The appeal would therefore be allowed. However, as to costs the defendant would recover its costs safe that it would be deprived of 20% up to and including trial in order to reflect its unsatisfactory conduct of the litigation. The criticisms of the claimants conduct during the robbery were not pursued at trial but, the fact remained that the vast majority of personal injury actions settled before trial on the basis of the written evidence served. Therefore the written evidence mattered even if a party knew that it would abandon certain points in the event of a trial.

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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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