As extreme weather events become more frequent, could the standard of reasonable care expected of employers and occupiers begin to shift?
The recent High Court decision in White & Bristow (Personal Representatives of the Estate of Jack Bristow) v (1) Hooke Highways Ltd (2) David Meisels [2026] EWHC 2020 (KB) raises an important question: as extreme weather events become more frequent, will the standard of reasonable care expected of employers and occupiers begin to evolve?
The accident from which the claim arises took place during Storm Eunice on 18 February 2022. Jack Bristow (“the deceased”), was in the course of his employment with the first defendant, Hooke Highways Limited (“Hooke Highways”). He was travelling as a passenger in a work van, being driven by his colleague when a tree fell onto the van, fatally injuring him.
The deceased’s family alleged that his employer, Hooke Highways, should have undertaken a more robust risk assessment following a rare Red Weather Warning issued by the Met Office and considered the steps to (i) decline the undertaking of the job (ii) send operatives from an alternative depot and/or (iii) instruct the deceased to remain at the drop off point rather than travelling back to the depot in extremely adverse weather conditions.
There was no question that Storm Eunice created dangerous conditions. By the morning of the accident, the Met Office had issued a Red Weather Warning covering Oxfordshire and Hampshire, warning of extremely strong winds, flying debris and a risk to life. However, the court emphasised that the warning was ‘advisory only’. It was not a prohibition on travel or a direction to stay off the roads.
Against that background, the court concluded that the particular risk which materialised—the death of an employee travelling on an ordinary public road as a result of a tree falling onto his vehicle—remained a remote possibility rather than a sufficiently probable risk.
The law - foreseeability remains the key test
Master Šabić KC highlighted the test set out by Smith LJ in Baker v Quantum Clothing [2009] EWCA Civ 449, [2009] P.I.Q.R. P19 that “If the employer has acted reasonably, he will avoid common law liability. It might be reasonable for an employer to conclude that a particular risk is so slight or of such little consequence if it occurs that he can properly do nothing to eliminate or reduce it…”
The court considered the guidance in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB); a case which involved a fatal helicopter crash at high altitude in mountainous terrain. In that case, it was found that an unnecessary risk is one that the employer can reasonably foresee and which they can guard against by measures, the convenience and expense of which are not entirely disproportionate to the risk involved. The duty of care placed upon an employer can extend to third-party premises as well as transport to and from work. However, what the standard of reasonable care requires in those circumstances is likely to be different given the lack of control that an employer has over external dangers.
The court considered the scope of Hooke Highways’ non-delegable duty as an employer to take reasonable care to ensure that it was reasonably safe for the deceased, as its employee, to travel on the day in question and, in particular, whether the deceased’s death on the journey was reasonably foreseeable
The circumstances of the journey mattered
The court considered the following in relation to the nature and purpose of the deceased’s journey that day:
The road was an ordinary public road and not inherently dangerous or perilous.
The vehicle itself was not defective or unsafe.
Hooke Highways had no control over the condition of the highway or the tree.
The deceased’s proximity to the tree was entirely incidental and fleeting.
The deceased and his colleague were collecting traffic management equipment from a road in anticipation of the worsening conditions.
The Red Weather Warning itself identified “flying debris” as a danger to life, and the removal of the equipment was intended to reduce precisely that risk.
The work was “essential” or, at the very least, of significant public importance.
Master Šabić KC stated that, given the nature of Hooke Highways’ business and the urgent request to remove the equipment before conditions deteriorated, it was not unreasonable for the employer to undertake the work. Further, it would have been unrealistic to expect a reasonable employer simply to decline the job and/or to compel the deceased to remain at the drop off point.
In relation to allegations of a lack of risk assessment, Hooke Highways already had a risk assessment policy and had introduced additional measures in response to Storm Eunice, including prohibiting lone working, liaison between depots and checking on operatives working during the adverse weather. The court was therefore not persuaded that the employer was required to go further.
Why the case matters for insurers
Storms are only one part of the picture. Employers and occupiers may increasingly face questions concerning extreme heat, flooding, high winds, drought, subsidence and other weather-related risks. The legal test remains the same. What may change is the factual evidence available to a court when applying it.
Interestingly, at paragraph 38 of his judgment, Master Šabić KC comments, “I simply do not know what systems or risk assessments other employers in analogous positions had or could reasonably be expected to have in Red Weather Warnings. There is therefore no sufficient evidential basis for me to conclude that Hooke Highways failed to act as a reasonable employer”.
Whilst the court was not satisfied that Hooke Highways should have realised the risks to the deceased’s life, the court states “the lack of any evidence of the standard of care that would be expected of a reasonable employer is significant against the background of neither party being able to adduce a directly analogous authority on the facts” (paragraph 40 of the judgement).
The judge noted the absence of evidence regarding industry standards or common practice concerning operations during Red Weather Warnings. As extreme weather becomes more frequent, guidance, policies and industry practice may develop. What is regarded as a reasonable precaution today may not necessarily represent the standard expected in the future.
Looking ahead
White & Bristow (Personal Representatives of the Estate of Jack Bristow) v Hooke Highways Ltd does not establish that extreme weather excuses an employer from liability, nor does the existence of a Red Weather Warning automatically require work or travel to stop. Instead, it reinforces the importance of reasonable foreseeability, proportionality and the practical steps available to employers at the time.
The weather itself may not determine liability, but a changing climate may gradually change what courts consider to be reasonably foreseeable and, ultimately, what constitutes reasonable care.
The separate claim against the second defendant, the landowner from whose land the tree fell, remains to be determined and may provide an important next chapter in this developing area of liability.
Please find a copy of the judgment here
As extreme weather events become more frequent, employers and insurers may face increasingly complex questions around foreseeability, risk assessment and reasonable care. Our casualty lawyers can provide practical advice on managing emerging risks and defending claims.
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