Davies v Global Strategies Group ( Hong Kong) Ltd. & Anor

In a negligence claim involving continued exposure to a serious workplace risk, proof that the risk was capable of reduction may place an evidential burden on the defendant employer to explain why it was not reduced. Once that burden is met by admissible evidence, the court must evaluate all the relevant evidence to decide whether the precaution was reasonably practicable. A defendant may discharge the burden through hearsay evidence accepted as truthful, even where stronger evidence or further witnesses might have been available. An appellate court should not interfere with such an evaluative factual conclusion unless the evidence compelled the opposite result.

Julian Davies, a former SAS serviceman employed in Iraq by the respondents’ security operation, was killed by a sniper’s bullet which passed through the windscreen of a Toyota Landcruiser. His widow claimed that the respondents were negligent in failing to provide greater protection, including bullet-resistant windscreens.

Burnett J dismissed the claim on 25 September 2009: [2009] EWHC 2342 QB. The appeal concerned whether the judge had wrongly evaluated the evidence and applied the evidential burden relating to the availability and practicability of fitting bullet-resistant windscreens.

1. Appeal dismissed. The judge applied the correct approach, reflected in Brown v Corus UK Limited [2004] EWCA Civ 337. Where a claimant shows exposure to a serious risk capable of reduction, the defendant must provide an explanation justifying the continuation of that risk or the failure to adopt the precaution.
2. The judge was entitled to find that the respondents’ evidence, given by Mr Arnold and Mr Perl, discharged the initial evidential burden. Their evidence that inquiries had been made of Bukkehave and that bullet-resistant windscreens were unavailable was admissible hearsay. The judge accepted it as truthful.
3. Once the initial burden was discharged, the court correctly evaluated the relevant evidence as a whole. It was entitled to prefer the respondents’ evidence over Mr Robson’s unspecific and unsatisfactory evidence, and to conclude that fitting a bullet-resistant windscreen was not reasonably practicable before the attack. The absence of stronger evidence or additional witnesses did not compel an adverse inference.
4. The conclusion was evaluative and open to the trial judge on the evidence. The Court of Appeal had not heard the four-day trial and could interfere only if the judge was bound to conclude that the burden had not been discharged. That threshold was not met.
5. Longmore LJ agreed that the respondents had to justify continuation of the high risk, but stressed that satisfaction of the burden was a matter for the trial judge and that appellate interference was limited. Stanley Burnton LJ agreed with both judgments. The formal order was: appeal dismissed.

1. Court of Appeal (Civil Division) — Appeal dismissed on 13 May 2010.
2. High Court, Queen’s Bench Division — Burnett J dismissed the negligence claim on 25 September 2009: [2009] EWHC 2342 QB.