Cruz v The Chief Constable of Lancashire Police
An injury sustained by a civilian detention officer during the transportation of a prisoner to a cell was an unfortunate accident...
Court of Appeal (Tomlinson LJ, Simon LJ and Morgan J)
26 April 2016
An injury sustained by a civilian detention officer during the transportation of a prisoner to a cell was an unfortunate accident. The fact that the cell door had been left partially open had not presented a real risk of relevant injury and there was accordingly no breach of Regulation 5 or Regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 (‘the Regulations’).
The claimant was a civilian detention officer (CDO) employed by G4S and working at Burnley Police Station under a contract between the police and G4S for the provision of custody services. Although not the claimant’s employer, the police owed her duties under the Regulations in relation to the workplace by virtue of their control of the police station.
In mid 2010, together with a fellow CDO, the claimant was escorting a drunk and disorderly female prisoner to a cell. Although the normal practice at the police station was to leave unoccupied cell doors fully open and virtually flush with the outside walls of the cells, on this occasion the door of the designated cell had inadvertently been left partially open at just under 90 degrees, leaving a gap of only 13 inches through which the two CDOs and the female prisoner had to pass.
That necessitated the claimant’s colleague releasing her grip on the prisoner to open the door fully. As she did so, the prisoner suddenly went to ground, pulling the claimant with her and unfortunately trapping the claimant’s left arm between her body and the floor. Although the claimant did not think she had suffered any significant injury at the time, it later transpired she had a significant injury to her dominant left wrist.
Following a liability and causation trial before His Honour Judge Butler in Preston County Court, the judge concluded that there was no breach of duty as the partially opened door presented no foreseeable risk of injury. The claimant appealed.
Court of Appeal
The parties agreed that if the partially opened cell door presented no foreseeable risk of injury then there was no breach of Regulation 5 as it could not be said that the workplace (i.e. the corridor) was not maintained in an efficient state.
Delivering the lead judgment in the Court of Appeal (with which Simon LJ and Morgan J agreed) Tomlinson LJ observed that there needed to be a foreseeable material risk of relevant injury. Here, the question had to be focused on identification of a foreseeable material risk of injury to the CDOs, not the prisoner. So the fact that a partially opened door might lead to a short delay delivering the prisoner to the cell, increasing the risk of injury to a prisoner who needed to be placed in the cell, had “little or no bearing on the question whether the partially opened door presented a foreseeable risk of injury to the CDOs”.
The claimant pointed to evidence at the first instance trial that the usual practice was to leave the doors fully open and that any obstruction ought to be avoided if possible. Police witnesses agreed that a fully opened door reduced the risk of it being a hazard blocking the corridor. It was conceded that it was “just common sense” that doors should be fully open.
There was a comprehensive risk assessment identifying risks associated with cells and their doors but not any risk associated with partially opened cell doors. The trial judge had concluded that the risk assessment was suitable and sufficient, noting that neither the claimant nor her fellow CDO had thought to report the incident at the time or suggest any breach of systems or instructions.
The Court of Appeal agreed with the police: “The Judge’s conclusion that the partially opened door presented no real risk of injury was…not just within the ambit of reasonable decision-making but obviously correct.”
Having noted that the cell complex contained 27 cells and five detention rooms, Tomlinson LJ observed that “the notion that every time one of those doors is inadvertently left partially open ….created a material risk of injury to those who work in the corridors lacks reality”.
The Court of Appeal also commented on the judge’s conclusion that Regulation 17, requiring the traffic routes in a workplace to be suitable for persons using them, had not been breached. The judge had held that an open door in perfectly good working order and capable of being moved created no unsuitability. The claimant agreed that the problem was “transient” and that the judge had approached the suggested breach of Regulation 17 correctly. The Court of Appeal agreed that failure under Regulation 17 was fatal to the claimant’s argument under Regulation 5. As Tomlinson LJ put it: “The corridor was the workplace and if the partially open door did not render it unsuitable for pedestrians under Regulation 17 it could not render it not maintained in an efficient state under Regulation 5, not even for the specific subset of persons escorting drunk and disorderly detained persons”.
Despite expressing sympathy for the claimant, the court observed that “the notion that a cell door inadvertently left half open should in this context expose [the police] to strict liability for injury attributable to an accident of the type which here occurred lacks all reality.”
This judgment is an exposition of common sense. Despite sympathy for the claimant, in reality this was simply an unfortunate accident. Although this case predates the implementation of the Enterprise and Regulatory Reform Act 2013, hence the focus on actionable breaches of statutory regulations, it is even more likely that the same outcome would result now in respect of incidents after 1 October 2013.
- The judgment highlights the importance of employers undertaking comprehensive risk assessments in respect of the risks faced by their employees and visitors. It also acts as a useful reminder to such employers and anyone handling EL claims on their behalf that it is important to:-Identify the precise workplace being complained of (in this case the corridor as opposed to any other part of the premises), in order to consider the extent of the duty of care and any breach; and
- As the applicable duties apply to issues of health and safety rather than operational efficiencies, failings in systems or processes applicable to the latter alone are unlikely to give rise to a cause of action.
Following the granting of permission to appeal by a single Court of Appeal judge, this matter had been referred to mediation under a Court of Appeal scheme. The mediation having taken place but failed to result in settlement, the claimant sought to criticise the defendant’s conduct in relation to the mediation and its associated costs, notwithstanding the upheld findings on liability. The Court of Appeal dismissed that argument with costs both in the Court of Appeal and below awarded to the police.
Nick Peel, partner at Weightmans acted for the defendant in this case.
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