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They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause.
Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury. The trial judge held that the defendant's failure to undertake a proper risk assessment constituted both negligence and breach of statutory duty under regulation 3 of the Regulations. I agree with this conclusion and reject the defendant's first ground of appeal. The mere fact that the defendant failed to carry out a proper risk assessment is not, on its own, sufficient to establish the claim.
It forms, however, an important part of the background when one comes to consider the other alleged breaches. If the defendant had carried out a proper risk assessment in relation to the Walsgrave Road shop, it probably would not have committed the alleged breaches of duty relating to the use of the magnetic lock. It is to these issues that I must now turn.
The defendant's training manual states: "If your shop is fitted with an Electromagnetic Lock ensure all staff are familiar with the operation. Make sure that the ordinary door lock is engaged as well as the electromagnetic lock before opening and after closing.
The manual says what should happen at opening and closing times. It gives no guidance about when the magnetic lock should be used at other times. The defendant's case is that their "policy" was that this was left to the discretion of the manager. The consequence of this so called policy was that the use of the magnetic lock depended upon who was in charge of the shop.
When Mrs Gilder was in charge of the shop, the magnetic lock was always used after the hours of darkness. When Mrs Swift was in charge of the shop, the magnetic lock was only used when staff were opening the shop, closing the shop or handling money.
Thus it can be seen that if Mrs Gilder had been on duty during the evening of 5th November , the robbery probably would not have happened. I cannot put this higher than "probably", because the poor lighting outside the front door made it difficult to see who was seeking entry. Ms Foster argued that the magnetic lock was not intended to be used for the purpose of vetting people seeking entry. I do not accept that submission. The magnetic lock had a number of uses. One use was to keep the door locked at opening and closing times.
Another use was to keep the door locked whilst vetting persons seeking entry. One of the managers did indeed use the magnetic lock for that purpose. Furthermore, Mrs Cheetham acknowledged that this was a proper use of the magnetic lock in the risk assessment which she carried out after the incident. She included the following paragraph in her report: "A light to be fitted over the front door to help to identify callers after dark before disengaging the maglock. To be controlled both by switch and sensor.
In her witness statement Mrs Cheetham tried to retreat from this passage in her report. She asserted that the purpose of her recommendation was simply "to give staff further reassurance". The judge found Mrs Cheetham to be an untruthful witness. He robustly dismissed this assertion.
He also robustly dismissed Mrs Cheetham's attempt to retreat from another section of her report concerning the poor quality of the lighting. The Walsgrave Road shop was located in a parade of shops close to Coventry town centre judgment paragraph 2. It was common ground that robberies had occurred to other betting shops in Coventry town centre.
Indeed one had occurred only eleven days before this incident. The Walsgrave Road shop had suffered a snatch robbery when it was located two doors up the road, i. The Walsgrave Road shop stayed open until 9. The evidence was that during the winter months not more than six to eight customers visited the shop after the hours of darkness. The street lighting outside was poor and there was no CCTV along that parade. The owner of a nearby off-licence had been campaigning for the installation of CCTV judgment paragraphs 33 The claimant had previously complained about the quality of the lighting outside the betting shop, but to no avail judgment paragraph On the basis of the evidence the judge reached the following conclusions: i The defendant laid down no policy and provided no guidance as to when the magnetic lock should be used other than during opening and closing.
The defendant ought to have maintained proper lighting. In my view the judge was entitled to reach those conclusions on the basis of the evidence before him, in particular the matters set out in paragraph 56 above. It is quite true that Mr Phillips, the defendant's expert, asserted in his report that the Walsgrave Road was in an area of low crime risk, but the judge rejected Mr Phillips' evidence.
The judge took the view that, given the degree of risk and the fact that the magnetic lock was available, the duty to take reasonable care required that the magnetic lock be used after the hours of darkness. In my view, this court which has not heard the oral evidence or even seen a transcript of it is not entitled to overturn that decision.
It is quite true that the judge, having rejected the evidence of Mr Phillips, did not have any expert evidence from either party to assist him in determining what precautions a reasonably careful and prudent employer would take in the circumstances of this case. In my view the judge was able to decide that issue on the basis of the factual evidence. This was not a professional negligence action. This was a low value employers' liability case, in which the facts were straightforward.
A judge is well able to determine liability in such cases without recourse to expert evidence. There has been a tendency in recent years for expert witnesses to colonise areas of litigation where their presence is not essential. For the avoidance of doubt, I am not saying that magnetic locks should be operated at every betting shop.
The material before the Court of Appeal does not enable this court to give any general guidance about security arrangements in betting shops and I do not do so. This judgment is simply concerned with what the judge was entitled to conclude concerning the Walsgrave Road shop in November , having regard to the evidence upon which the defendant chose to rely.
Since so few customers came during the evenings, it was hardly an inconvenience either to the staff or to the customers if the magnetic lock was operated after the hours of darkness. Accordingly I would reject the defendant's second and third grounds of appeal. The fourth and fifth grounds of appeal can be dealt with more briefly.
Ms Foster submits that the judge erred in rejecting Mr Phillips' expert evidence. She points out that he is an experienced security expert. He has a distinguished CV and was formerly a senior police officer. It is not easy to persuade an appellate court to reject the trial judge's assessment of the witnesses. The judge has seen the witnesses giving evidence and being cross-examined.
It is doubly difficult for Ms Foster to achieve this feat in the present case, since no transcript of the oral evidence is available. We do not know what was put to Mr Phillips in cross-examination or what answers he gave. When Tomlinson LJ probed this aspect during argument, the recollections of the lawyers on both sides were hazy.
That is not surprising, since the trial took place a year ago. In those circumstances the Court of Appeal cannot go behind the trial judge's assessment of Mr Phillips. The only comment which I would make is that, in the light of Mr Phillips' written report, I do not find the judge's assessment surprising. In the circumstances the defendant's fourth ground of appeal must be rejected.
As to the defendant's fifth ground of appeal, the judge correctly directed himself as to the standard of care by reference to the familiar authorities, starting with Stokes v Guest, Keen and Nettlefold  1 WLR He noted that the need for precautions at the Walsgrave Road shop was obvious. He also noted that the precautions which he identified were simple and easy to take.
The judge concluded that the failure to take those precautions was a breach of the defendant's common law duty of care: see paragraph 47 of his judgment. The judge held that the defendant was in breach of statutory duty under regulation 3 of the Regulations in failing to carry out a proper risk assessment.
Although there is some ambiguity in the judgment, the judge also at least implicitly found that the defendant's failure to provide adequate lighting was a breach of regulation 8 of the Regulations. In my view the judge did not set too high a standard of care. He applied the correct standard of care and held that the defendant fell below that standard.
This decision cannot be impugned on appeal. Accordingly I would dismiss the fifth ground of appeal. For the reasons set out in Parts 3 to 7 above, I would uphold the judge's decision and dismiss all the defendant's grounds of appeal.
My Lords, however, both take a different view. In the result, therefore, for the reasons which they explain this appeal will be allowed. Before parting with this case I wish to express my concern about the manner in which the defendant has conducted its defence. The defence of any personal injury case is a serious task, to be undertaken in a fair and responsible manner. It is inappropriate to serve witness statements which refute every allegation, whether right or wrong.
It is also inappropriate for an expert witness to provide a partisan report which backs up his client at every turn. For the avoidance of doubt, I make no criticism of Ms Foster's oral advocacy. Ms Foster was entirely fair and helpful in her submissions to this court, as I am sure she was in the court below.
As my Lords rightly say, the criticisms of the claimant's conduct during the robbery were not pursued at trial. The fact remains, however, that the vast majority of personal injury actions settle before trial on the basis of the written evidence served. Therefore the written evidence matters, even if a party knows that it will abandon certain points in the event of a trial.
As explained in paragraph 68 above, this appeal is allowed and the claimant's claim is dismissed. I am grateful to my Lord for setting out with such clarity the issues which arise for decision on this appeal. I respectfully agree with much of what my Lord has said about the Defendant's conduct of the litigation, although it should be borne in mind that Miss Foster made it very clear at trial that no criticism was made of the Claimant's conduct in the face of the armed and balaclava-helmeted robbers.
I do not for my part consider that the judge was justified in finding that there had been no proper risk assessment dealing with the risk of robbery at the premises and how that risk could be avoided or minimised. It is to my mind not credible that no such risk assessment was conducted by an organisation such as the Defendant.
The more likely explanation is that the Defendant is now unable to locate the relevant documentation, electronic or otherwise, or that it has made insufficient effort so to do in the context of a low value claim. What is to my mind more significant than the absence of any record of a risk assessment is the judge's failure to engage with the evidence to the effect that the Walsgrave Road shop had been designated as, or should in any event be regarded as, at low risk of robbery having regard to its location.
The shop was situated in a parade of shops just off a busy roundabout with a video shop, an off-licence and a KFC outlet adjacent and a pub opposite. It was in what was described to us without contradiction as a "nice area of Coventry". There had been no previous robbery at this location. Somewhat confusingly the judge finds at paragraph 9 of his judgment that "This particular shop had been the victim of a snatch robbery before".
However, as the judge goes on to find, "That robbery had not occurred in its present location. It had occurred in its previous location. In addition, that robbery did not involve the use of a weapon. However that may be, the evidence before the judge did not support any suggestion that the Walsgrave Road shop should have been identified as being at high or enhanced risk of robbery.
On the contrary, the evidence of the Defendant's security expert, Mr Phillips, was to the effect that "The shop is situated within an area with a low crime rate, had no known specific threat and no history of violent incidents. Whilst the judge was very critical of Mr Phillips, this factual evidence was not so far as I am aware challenged and there was no basis upon which the judge could properly have rejected it.
The judge said that he found Mr Phillips' evidence entirely unhelpful, but he could not properly fail to have regard to his unchallenged evidence of fact concerning the crime rate and history of crime in this area and thus as to the objectively assessed threat to premises such as this in this area. The judge's finding that there was no policy in force as to the use of the magnetic lock other than during opening and closing hours is in my view largely a matter of semantics.
At paragraph 26 of his judgment the judge appears to accept that "The decision whether to use it lay entirely with the manager. It is to be noted that the instruction there given is prefaced by the words "if your shop is fitted with an Electromagnetic Lock", a point to the significance of which I shall return. It may thus be a moot point whether the policy was to leave the matter to the discretion of the manager, or whether in the absence of any policy as to the use of the magnetic lock outside opening and closing, the matter simply fell to be dealt with according to the discretion of the manager for the time being, but the result is the same.
It is not ultimately determinative of any issue which the judge had to decide. The evidence also revealed an inconsistency of approach between managers as to the use of the magnetic lock apart from when opening and closing the premises. The judge made no express finding that the magnetic lock is intended to be a device facilitating visual vetting of customers before entry. Obviously it can be used in that way. The judge did not engage with the points that a determined robber could wait until the door was opened from within by a customer leaving the premises and that robbers can "tailgate" customers entering premises.
Although those points are contained within the much criticised evidence of Mr Phillips, they were not controverted and they are obvious. The documentary evidence, such as it was, tends to support the notion that the primary purpose of a magnetic lock is perceived in the industry as being to protect staff when they are at their most vulnerable, which is when opening and closing the premises.
In order to carry out that operation at least one member of staff must leave the more secure area behind the counters in order to disengage the ordinary door lock. The magnetic lock gives protection at this time when the ordinary door lock is disengaged. Hence the instruction in the Robbery Prevention Training Package to ensure that before opening and after closing the ordinary door lock is engaged as well as the magnetic lock.
An example risk assessment appended to the Safebet Alliance document at Appendix 3 refers to the magnetic lock being used to control access at high risk times, not at all times, again consistent with the magnetic lock not being seen as a routine customer vetting system.
Against that, I of course accept that it could be said that after dark is a high risk time. At page 21 of the document and following there appear some "National Standards Security and Safety Measures". At page 22 there appears the following:- "External lighting is important to support external CCTV where installed and clear vision to aid the use of Maglocks etc.
Where possible external lighting also assists to identify potential risks during hours of darkness. So also was Mrs Cheetham's report after the incident, as referred to by my Lord at paragraph 54 above. However I would not myself put too much weight on this recommendation made after the incident and with the benefit of hindsight when assessing what duty lay on the Defendant before the incident had occurred.
The essence of the judge's conclusion adverse to the Defendant is that the Defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after dark. This is a conclusion of law based by the judge upon his findings of fact.
It is a conclusion as to the ambit of the duty of care owed by the Defendant to the Claimant. In my view the facts found by the judge did not justify this conclusion. He reached the conclusion which he did very largely because he could discern "no valid reason why the magnetic lock could not have been used after the hours of darkness" judgment paragraph 44 and see also paragraph 45 to similar effect. That approach however begs the question whether the Defendant's duty extended to having a magnetic lock installed at these premises in the first place, which is perhaps why Mr Thomas Rochford, for the Claimant, submitted in his skeleton argument for use in this appeal that:- "The issue is not whether a magnetic lock is a necessary part of a sufficient i.
The issue is whether, when there is a magnetic lock, it is negligent not to secure or encourage its use by having a policy as to its use and by having lighting that is such as to render it practicable to use it after dark. I agree that that is the issue. However in my view it cannot ordinarily be negligent to fail to ensure that a safety or security device is used if it would not have been negligent not to have installed the device in the first place.
It would ordinarily be negligent of the Master of a modern ocean going trading vessel not to use his radar as an aid to navigation, but by the same token modern standards positively require that an ocean going trading vessel be fitted with radar. The only evidence which the judge had about industry standards in this regard was that the Defendant, where possible, fits magnetic locks to its premises but that because of design and layout this is not always possible. This limitation affected about 50 of its shops within an estate of 2, premises.
There was thus no evidence before the judge on the basis of which he could have concluded that the Defendant would have been negligent in not installing a magnetic lock at these premises. As my Lord has pointed out at paragraph 60 above, the material before this court does not enable it to come to any general conclusion about security arrangements in betting shops, and my Lord's conclusion is not that magnetic locks should, if fitted, be used at all betting shops during the hours of darkness.
I note the evidence that during the winter months only six to eight customers visited this shop after dark and I agree that the judge was provided with no sensible reason why the magnetic lock should not have been used during the hours of darkness. Where however I respectfully part company with both the judge and my Lord is in their conclusion that the Defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after the hours of darkness.
The judge recognised that the fact that it was possible and not impracticable to use the magnetic lock after the hours of darkness does not necessarily mean that the Defendant "had acted unreasonably in not using it" by which he meant I think in not putting in place a policy requiring its use. What was determinative for the judge was that he was given no reason why the magnetic lock was not used after the hours of darkness.
I do not for my part think that this is a sufficient basis upon which to impose a duty. The ambit of the duty must in large be part informed by the perception of the nature and extent of the risk and by the standards of the industry. As to the former, evidence before the judge tended to show that no particular or heightened risk was perceived to attach to these premises which were not in an area of enhanced risk nor had suffered previous attack.
As to the latter, the standards of the industry will not of course be determinative, particularly where they are demonstrably lax. But the judge was offered by the Claimant no evidence as to the standards adopted by a reasonably prudent employer in the industry. The judge decided that he could place no reliance on the Defendant's expert opinion evidence in that regard and, in consequence, in my judgment fell into the error of substituting his own view as to the standards which ought to prevail.
In my judgment the evidence before the judge did not justify his conclusion. The salient features of the evidence are, in my view:- 1 A magnetic lock is not perceived in the industry as primarily a vetting device, although obviously it can be used for that purpose; 2 It is not shown that the installation of a magnetic lock at a betting shop is perceived within the industry as an essential security measure. There are many betting shops which have no magnetic lock and on the evidence they could even amount to a majority of such premises; 3 It is not shown that the Defendant's security procedures fell short of those standard in the industry on the contrary, the evidence suggests that insofar as concerns the safety and security equipment installed at its premises, the Defendant adopted a more exacting standard than its competitors; 4 There had been no previous incident of robbery at this shop which was located in an area not perceived as being at enhanced risk.
In the light of this evidence, I do not consider that the judge was 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. Put in another way, I am not satisfied that it was a breach of duty by the Defendant to leave the use of the magnetic lock after dark at these premises to the discretion of the manager. I am grateful to Jackson LJ for setting out the background, the facts which gave rise to the injury and the issues which fall for decision in the present appeal.
Like Tomlinson LJ, I agree with what Jackson LJ has said about the criticism of the claimant's conduct in the face of what must have been a terrifying experience. Nevertheless, it is clear that no reliance was or could have been placed on this criticism. Whilst I deprecate the fact that these criticisms were made and allowed to be included in the witness statements and expert report, they have, in the end, no bearing on the matters which it is necessary to decide in this appeal.
I have found it of assistance to remind myself of the significance of risk assessments in cases of this kind. Allison v London Underground Limited  EWCA Civ 71;  ICR involved an allegation that the employer had failed to provided adequate training for its drivers in the use of a new design of traction brake controller or "dead man's handle".
The trial judge had held that the training had been adequate, because it dealt with the risks which the employer had actually foreseen see . Although the employer had conducted a risk assessment, the judge had not dealt directly with whether the assessment had been sufficient and suitable. He had also failed to deal with a suggestion that the employer should have sought expert ergonomic advice as to the risks associated with the use of the new handle.
The issue facing the court was what the employer knew or ought to have known about the risks associated with the new design of handle. At  Smith LJ said this: "How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is or should be closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the Regulations.
That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment.
Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable.
Thus, by asking what a suitable and sufficient risk assessment would reveal one can arrive at a conclusion about what steps should be taken to reduce those risks. But as Smith LJ went on to point out in that case at : " it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the [employer's] risk assessment.
That is what the court proceeded to do in that case, finding that the employer appreciated that there was a risk of strain injury and ought to have taken advice from an expert who would have advised the need for training employees as to how to hold the handle in order to avoid injury see . For another use of risk assessment regulations to identify what an employer ought to have foreseen and done, see per Lord Hope in Robb v Salamis  UKHL In the present case I simply do not follow how the failure to produce evidence of a risk assessment, on its own, advances the claimant's case.
The next question has to be: what would such an assessment have shown? The judge made no findings on this subject. At  of his judgment, the judge records a submission made by the defendants that the breach involved in relation to preparing a risk assessment would not itself found a claim in damages against the defendant. In that and the following paragraph, the judge described as uncontroversial the proposition that the law imposed a duty on the defendant to provide a safe and secure work environment, judged by reference to what is to be expected of a reasonably prudent employer.
At  he "leav[es] aside for the present moment the Defendant's failure to carry out the risk assessment of the shop" and makes a finding about the policy in relation to the magnetic lock. At  he says this: "A proper risk assessment would not only have dealt with the vulnerability of the Walsgrave Road shop to the type of criminal activity that occurred on 5 November but would also have dealt with other factors which would make it possible to assess the extent to which the use of a magnetic lock might have avoided or minimised the risk of such activity during opening hours and how it might have been deployed to achieve that outcome.
These observations are no doubt true, but in the absence of any finding about what a formal risk assessment would have shown about any of these matters, the absence of the risk assessment does not help the claimant. Merely to say that a formal risk assessment would have addressed the vulnerability of the shop is to beg the question of what the vulnerability of the shop actually was.
It is trite to say that all shops are vulnerable to robbery. The absence of the risk assessment cannot constitute positive evidence about the nature or extent of the risk. The passage I have quoted from Smith LJ's judgment in Allison v London Underground makes it clear that the court needs to consider what a risk assessment would have found, not what topics it would have addressed or what matters it would have been, in consequence, possible to assess.
Thus I agree with Jackson LJ when he says at  above that the failure to carry out a proper risk assessment is not, on its own, sufficient to establish this claim. However, I do not, for myself, see how it can materially assist the claim. This ground of appeal seeks, understandably, to reverse the judge's finding of fact that the defendants did not carry out a proper risk assessment. However it does not seem to me that success on this ground of appeal would result in a reversal of the order made by the judge, or have any bearing on the other grounds of appeal.
The case, in my judgment, must in such circumstances depend entirely on the grounds of appeal concerning the policy for operating the magnetic lock. Filed under Cases , News , Occupational Stress. You are commenting using your WordPress. You are commenting using your Google account.
You are commenting using your Twitter account. You are commenting using your Facebook account. Notify me of new comments via email. Notify me of new posts via email. Email Address:. You must not rely on any opinion on this blog as advice for any individual claim. To ask about bespoke legal advice click here. Chop the Knot. Skip to content. The Caravana Tales. Safer but not negligent not to mandate its use. Share this: Twitter Facebook LinkedIn. Like this: Like Loading Leave a Reply Cancel reply Enter your comment here Fill in your details below or click an icon to log in:.
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|Kerry nicholls v ladbrokes betting||There was therefore no adequate basis for the imposition of the duty imposed by the judge in the case of this particular shop. Kerry nicholls v ladbrokes betting Claimant in a italian serie a betting tips claim who had failed to file his cost budget prior to the case management hearing contrary kerry nicholls v ladbrokes betting PD 51D was not granted relief from sanction and his budget would be restricted to the applicable court fees. It is quite another matter to conclude that there should have been a policy to operate it at other times, in particular at times when the shop is open, and to operate it for another purpose, namely for the purpose of vetting customers on entry. The magnetic lock gives protection at this time when the ordinary door lock is disengaged. If the magnetic lock had been in operation, the staff could have effectively prevented entry. In my view the judge was able to decide that issue on the basis of the factual evidence.|
|Kerry nicholls v ladbrokes betting||346|
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|Wolfsburg vs bayern munich bettingexpert football||Family: Alternative Dispute Resolution. The only relevant question is number 36, which asks: "Can all the Shop Teams explain 'Do all staff understand what to do in the event of a robbery? At  he "leav[es] aside for the present moment the Defendant's failure to carry out the risk assessment of the shop" and makes a finding about the policy in relation to the magnetic lock. A police officer who had failed to slow and negotiate a mini-roundabout in accordance with the road markings was found more liable than a driver who had entered the roundabout late and in her path. Nevertheless, they must take reasonable care to provide a safe working environment for their employees.|
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|Sporting betting brasil mapa||Oberbettingen motorradgarage defence of any personal injury case is a serious task, to be undertaken in a fair and responsible manner. It is to these issues that I must now turn. The witness statements served 2021 australian election betting las vegas behalf of the defendant contained some incorrect assertions, which the trial judge held to be deliberate falsehoods. Skip to content. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. One piece of equipment which features in this case is a magnetic lock.|
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