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PI and Civil Litigation

Law - practice - procedure

25 JUL 2013

Kerry Nicholls v Ladbrokes Betting & Gaming Ltd [2013] EWCA Civ 1963

The defendant successfully appealed a decision that it was liable to the claimant employee in relation to an armed robbery which occurred on its premises.  The defendant recovered its costs of the action, save for a 20% reduction to reflect its conduct of the litigation. 

Court of Appeal

11 July 2013

Jackson LJ, Tomlinson LJ, Floyd LJ

On the evening of 5 November 2007, the claimant was working behind the counter at a betting shop when there was an armed robbery.  She claimed damages for psychiatric injury.  The defendant appealed against a decision that it was liable to the claimant for failing to carry out a risk assessment for potential criminal activity, for having no an inadequate policy for operating the magnetic lock, and for not operating a magnetic lock at all times after the hours of darkness.  The defendant additionally argued that the judge had erred in dismissing its expert evidence and had set too high a standard by which to assess its conduct. 

Whilst the defendant was unable to produce a documented risk assessment of these premises, it was not credible that no such risk assessment had been conducted.  The defendant had either been unable to locate the relevant documentation or had made insufficient effort to do so in the context of a low-value claim.  The evidence of the defendant's security expert was to the effect that the shop was situated within an area with a low crime rate, had no known specific threat and no history of violent incidents.  This evidence was not challenged and there was no basis upon which the judge could properly have rejected it.  The facts did not justify the judge's conclusion that the defendant ought to have instructed that staff should operate the magnetic lock after dark.  The fact that it was not impracticable to use the magnetic lock after the hours of darkness does not necessarily mean that the defendant had acted unreasonably in not putting in place a policy requiring its use.  The ambit of the duty must be informed by the perception of the nature and extent of the risk and by the standards of the industry.  There was no particular or heightened risk to these premises which were not in an area of enhanced risk nor had suffered previous attack.  The judge was offered by the claimant no evidence as to the standards adopted by a reasonably prudent employer in the industry and should not have substituted his own view as to the standards which ought to prevail.  It is not necessary for every betting shop to install and use a magnetic lock when the shop is open in the hours of darkness and there was therefore no adequate basis for the imposition of the duty imposed by the judge in the case of this particular shop.  The defendant's appeal was allowed and the defendant was awarded its costs of the action, save for a 20% deduction to reflect its conduct of the litigation.

Comment

The case provides useful comment on allegations based on risk assessments: it is not sufficient to point out that a risk assessment has not been completed, it needs to be established what a risk assessment would have revealed, and how this may have prevented injury.  Jackson LJ criticised the defendant's conduct:

"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." 

The defendant was deducted 20% of its costs to reflect its conduct. 

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