Yorkshire Traction Company Ltd. v Searby

Suitability under regulation 5 of the Provision and Use of Work Equipment Regulations 1992 requires a qualitative, context-sensitive assessment. The court must consider the degree of risk to health or safety, the conditions and operations of use, and competing risks created by a proposed precaution. A reasonably foreseeable possibility of injury alone does not establish breach, and the duty does not require complete protection. For a public service vehicle, relevant conditions may include passenger numbers and likely behaviour. The informed views of an experienced workforce are not determinative, but may be a substantial factor. On the evidence, the absence of an assault screen was neither negligence nor breach of the statutory duty.

The respondent, a bus driver employed by the appellants, was assaulted by a passenger while driving a late-evening service on 1 November 1998. He suffered physical injury and post-traumatic stress disorder. He claimed damages for negligence and breach of regulation 5 of the Provision and Use of Work Equipment Regulations 1992, arguing that the bus should have had a protective screen separating him from passengers.

His Honour Judge Grenfell, sitting at Leeds County Court, found liability and awarded damages of £32,140.73 on 19 May 2003. The employer appealed against the finding on liability. The central issues were whether the absence of a screen made the bus unsuitable for its route and conditions of use, whether the employer had been negligent, and whether any failure to investigate alternative designs caused the injury.

1. Appeal allowed. Pill LJ gave the leading judgment, Chadwick LJ agreed, and May LJ agreed with both judgments.
2. The judge’s formulation in Askham v Yorkshire Traction, that breach followed once reasonably foreseeable conditions represented a possible cause of injury and caused injury, misstated regulation 5(3). Suitability under the Provision and Use of Work Equipment Regulations 1992 requires a qualitative assessment of the degree of risk. The approach in Marks and Spencer plc v Palmer [2001] EWCA Civ 1528 was applied: context matters, the assessment is made without hindsight, and the risk must be sufficient to affect health or safety.
3. Regulation 5 was capable of addressing risks created by external forces. In relation to a public service vehicle, conditions include weather and human conditions, such as the number and likely behaviour of passengers and other road users. The regulation does not require complete or absolute protection.
4. The European directives supported that construction. The Framework Directive 89/391/EEC and Work Equipment Directive 89/655/EEC recognise risk evaluation, substitution of dangerous measures by less dangerous ones, minimisation of unavoidable risks, and consultation with workers and their representatives. The employer may therefore have to balance the risk of assault against safety risks caused by screens. The workforce’s views were not conclusive, but the coherent objections of experienced, union-represented drivers required substantial weight.
5. For negligence, the relevant question was what conduct was reasonably required in the particular circumstances, assessed at the date of the accident. The risk was statistically very low, the available screens created genuine problems of reflection, claustrophobia and isolation, and the workforce had not supported their use after an unsuccessful trial. Failure to fit a screen by November 1998 therefore fell short of neither the common-law standard nor regulation 5.
6. Even if the employer had been negligent in failing to investigate alternative designs, that failure was not causative. The evidence did not establish that further investigation would probably have led to a screen being installed on the relevant bus before the accident. The finding of liability was accordingly reversed.

1. Court of Appeal (Civil Division): On appeal, the court allowed the appeal and reversed the finding of liability in [2003] EWCA Civ 1856.
2. Leeds County Court: His Honour Judge Grenfell gave judgment for the respondent on 19 May 2003 and awarded damages of £32,140.73.