Obtaining reports from experts
Heyward v Plymouth Hospital NHS Trust, [2005] EWCA Crim 939


In this occupational stress claim, the parties had each obtained a report from a consultant psychiatrist.


The claimant sought to adduce additional evidence from a psychologist. His argument was that the psychiatrist would be unable to identify the steps that should have been taken by the trust to avoid him suffering from mental injury.


In giving leave to appeal, Lady Justice Smith was concerned that the court should avoid any 'inequality of arms'.


It was identified that in such cases large employers often adduce evidence from a quasi-expert such as a human resources director, which the claimant would need to rebut at trial.


This case was classed as 'relatively straightforward' as far as liability at common law was concerned as it would stand or fall on its facts. Lord Philips held that the psychiatrist could address the question of what the employers ought to have done by way of risk assessment and the implementation of steps to avoid injury. He also found that while no evidence had yet been disclosed so that the court could not consider the nature of the defendant's evidence, should the defendants, on exchange of witness statements, seek to adduce such 'quasi-expert' evidence, then the claimant could make an application to the court to adduce further evidence himself.


The Court of Appeal had previously accepted that there was likely to be a requirement for expert evidence to assist the court in identifying the steps that the employer should have taken (see Lady Justice Hale in Hatton v Sutherland [2002] EWCA Civ 76). Therefore, it is a matter for the parties to question their expert prior to instruction as to whether he feels capable of addressing this issue, as the courts are intent on limiting the number of experts in all but the most complex cases.


An interesting aside was the comment by Lord Philips that arose from the hearing before the deputy district judge, which took place by telephone. He said: 'I pause to say that I would commend the practice of carrying out case management conferences or other interlocutory matters by telephone where it is appropriate; but where this is done it is important that the judge who is conducting the hearing should have available before him the appropriate documentary material in a form which the parties to the proceedings are able to duplicate so that their submissions are readily intelligible.'


This section is worth quoting to a district judge who is reluctant to permit telephone hearings.


Lord Philips went further to indicate a slight degree of frustration that the court system has not yet found itself in a position to fund the introduction of electronic case files into the civil process, thereby making the need to attend court and the copying of bulky documents redundant. One wonders how long it will be before we have a virtual courtroom.






Assessing risk

O'Gara v Paul John Construction (Leicester) Limited, QBD, unreported, 2 August 2005


In recent months, we have been faced with the conundrum of balancing the views of those who would seek to lobotomise the technical skills from employers' liability law to reduce costs, with the complexity caused by the Court of Appeal's entanglement in the interpretation of words such as 'suitable' and 'efficient'. It is therefore refreshing to see the approach of the judge to a simple interpretation of regulations applicable to workplaces.


In response to an accident in which a reversing dumper truck slipped off a ramp into a hole at the edge of the ramp, the judge found that the hole was a 'trap', and the remedy was simple, namely, 'either fill in the hole or fence it off'.


The defendant's failure to do either, unaided by the critical failure to risk assess the task, resulted in a finding for the claimant that 'the accident should easily have been avoided'.


Equally, an attempt to shift some of the blame on to the claimant was defeated by a straightforward approach that the claimant reversing a dumper truck would necessarily have been observing the rear of the truck rather than the wheels at the front, one of which left the ramp.


Adopting the judgment of Lord Justice Sachs in Williams v Devon County Council 2003 PI QR, the judge found that to blame the employee in light of the circumstances of this accident would be to 'emasculate' the regulations.


This case, although in the Queen's Bench Division, is useful in reminding us that the regulations are there to protect employees in the workplace. At times, the appeal court appears to forget this principle.


Regulations whose interpretation seem clear become complicated. The failure to risk-assess the task presented to the claimant, and the simple circumstances of his accident, resulted in a direct interpretation of the regulations in the claimant's favour.


It is pleasing to see that contributory negligence was not used to diminish the impact of the regulations.


Once more, employers are reminded that risk assessment is not an option, despite some of the confusing commentary from the appeal court.




Robert Hood v Mitie Property Services (Midlands) Ltd & Royal Mail Group Plc, QBD, 1 July 2005


This case reminds us of the responsibilities of a contractor for his employees while working at an occupier's site.


Mr Hood had the misfortune to overbalance and fall 35 feet through a Perspex skylight, suffering serious injuries.


At the time, his employers had been contracted by the Royal Mail Group (the Post Office) to do repairs on their premises.


The Post Office did what occupiers should do, namely 'taken reasonable care to appoint competent and safe contractors' (see Bottomley v Todmorden Cricket Club 2004, PI QR 275), in that it had ensured that detailed questionnaires and interviews were completed; it had considered health and safety issues in depth; and ensured that the contractors did a risk assessment before the roof work was undertaken.


It was identified that this assessment should have spotted that the claimant was working at a high level in close proximity to an unguarded drop.


In short, the Post Office had satisfied its responsibility. Mr Hood's employers were 'in control' of the place of work, the method of work, and the equipment used to do the work in relation to a task that he had to perform.


Adopting the approach of Lady Justice Hale in McCook v Lobo, 2003 ICR 89, the Post Office did not 'control the way in which the claimant was doing his work'.


On many occasions, the claimant is put in the position of wondering whether to sue the employer or the occupier.


This case, as with previous authorities, demonstrates that he should sue the employer, for he will not know the steps taken by the occupier to satisfy his responsibility in terms of appointing competent and safe contractors.


It is for the employer to demonstrate that the responsibility attaches to the occupier.


By Simon Allen, Russell Jones & Walker, Sheffield