Harvey v Northumberlland County Council

An employer responsible for a workplace where employees regularly face volatile and aggressive children must take reasonable steps to make that workplace safe. That duty may require practical training in safer restraint techniques where training is needed and suitable techniques are available. An employer cannot leave a known training need on hold pending advice from central government or another external body. Senior management is responsible for investigating what training and techniques are available. The duty is assessed on the evidence, including the known risks, the absence of practical training and the availability of safer methods.

The claimant, a residential social worker at secure accommodation operated by the defendant council, injured his knee during an incident involving an aggressive child. The Newcastle upon Tyne County Court accepted his account, found that the incident involved restraint, and awarded £19,000. The council appealed, challenging the factual finding and the conclusion that staff had not received adequate training. Permission was granted on the training issue, while permission on the witness-evidence grounds was renewed before the Court of Appeal. The central issue was whether the council had taken reasonable steps to make the claimant’s workplace safe.

Lord Justice Scott Baker delivered the first judgment. The Lord Chief Justice agreed.

1. Witness evidence. The judge was entitled to prefer the claimant’s account of the incident. An appellant challenging a trial judge’s choice between competing witnesses faces a very uphill struggle unless there is a manifestly clear reason for concluding that the judge was wrong. The trial judge had heard and seen the witnesses and was better placed to assess them.
2. Characterisation of the incident. The absence of an entry in the restraint logs did not determine whether the incident involved restraint. The contemporaneous accident records were consistent with the claimant’s account, and even the alternative account involved conduct close to a situation requiring physical restraint or other physical action.
3. Training and workplace safety. The council owed a common-law obligation to take reasonable steps to ensure that the claimant’s place of work was safe. Safer restraint techniques were available. Staff had received no practical instruction in how to handle children physically, despite recurring restraints, known safety concerns and recognition that physical-intervention training would benefit staff.
4. Responsibility of management. The council had taken no active steps to find out what training and techniques were available, although the CALM course had been available from early 1997. It could not discharge its obligation by putting training on hold pending advice from central government or another body. That responsibility lay with senior management.
5. Disposition. The appeal was dismissed with costs. The stay was removed and the damages were payable.

• Court of Appeal (Civil Division). In [2003] EWCA Civ 338, the appeal from the Newcastle upon Tyne County Court was dismissed with costs; the stay was removed and damages were payable.
• Newcastle upon Tyne County Court. His Honour Judge Moorhouse found for the claimant, accepted his account of the accident and awarded £19,000.