1st October 2015 saw the second anniversary of this piece of legislation, which deals with civil liability arising from breach of statutory duty. S69 triggered a fundamental change to the basis upon which employees can bring civil claims for compensation against their employers.
While it is likely to be some time before there are a sufficient volume of judgments from which to draw any firm conclusions on how the courts are implementing section 69, a recent Scottish case does raise some interesting issues.
Gilchrist V ASDA Stores (2015) is a judgment of the Outer House of the Court of Session, the Scottish equivalent of the English and Welsh County Court.
Mrs Gilchrist (the claimant) was employed by ASDA (the defendant) as a shop assistant. The claimant was 5ft tall and was using a ‘Dalek’ footstool to hang clothes onto a rack, which was 7ft off floor level. The claimant fell backwards from the stool, injuring her ankle.
The claimant argued that the defendant was in breach of their common law duties to the claimant, citing well-established common law duties including, providing a safe system of work and proper work equipment.
What was interesting was how the claimant sought to argue that the defendant had breached their common law duty of care. In simple terms, the claimant argued:
The claimant acknowledged, relying on the Court of Appeal decision in Hide v Steeplechase Co (2013), that the defendant may still avoid liability if the accident was caused due to unusual and unforeseen circumstances beyond the employer’s control; or if the cause was some exceptional event which could not have been avoided, despite the exercise of all due care.
It has correctly been reported that the trial judge accepted the claimant’s submissions on the impact of section 69. She did so because (for reasons, which are not clear) the defendant made no contrary submissions.
It remains to be seen how much can be read into this part of the judgment.
For example, there is no reference in the judgment to the Court of Appeal’s findings in Hide that the defendant’s common law duties in that case were lower than their statutory equivalent and, had the matter been decided on common law principles, the defendant would have succeeded.
Ultimately, the claimant’s claim failed. It was not argued that the Dalek stool was unsafe per se. The judge’s finding was that the claimant fell after she had finished hanging up clothes and the accident was caused by the claimant making a mistake as to her footing.
What can we draw from this, albeit for the moment, isolated judgment?
Eric Woolley
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