Nicholls v Ladbrokes Betting & Gaming Ltd

In an employers’ liability claim arising from a robbery, the absence of a documented risk assessment does not itself establish breach or liability. The court must consider what a suitable and sufficient assessment would have revealed about the actual risk and necessary precautions. A security device installed at premises does not ordinarily create a duty to use it where there was no duty to install it in the first place. A risk of robbery, together with the ability to operate a magnetic lock, is insufficient without evidence of a particular or enhanced risk or relevant industry practice. Industry standards inform the standard of care but are not determinative. The appeal was allowed and the claim dismissed.

Kerry Nicholls, an employee at a Ladbrokes betting shop, suffered psychiatric injury during an armed robbery. She claimed damages for negligence and breach of statutory duty, alleging failures to conduct a proper risk assessment, operate a magnetic lock after dark and provide adequate lighting.

After a trial in the Walsall County Court, His Honour Judge Mithani QC found liability and awarded agreed damages of £9,000. Ladbrokes appealed on liability. The central issues were whether the evidence justified findings concerning the risk assessment and whether the defendant owed a duty to require use of the magnetic lock after dark at those premises.

Disposition. By a majority, Tomlinson and Floyd LJJ allowed the appeal, dismissed the claim and made a costs order depriving the defendant of 20 per cent of its costs up to and including trial because of its unsatisfactory conduct of the litigation. Jackson LJ dissented and would have upheld the trial judge’s decision.

1. Risk assessment. Tomlinson LJ considered that the finding that no proper risk assessment had been conducted was not justified on the evidence. Floyd LJ agreed that failure to produce a formal assessment could not, by itself, materially advance the claim. The court had to consider what a suitable and sufficient assessment would actually have revealed about the nature and extent of the risk and the measures required under Regulation 3 of the Management of Health and Safety at Work Regulations 1999. The absence of an assessment was not positive evidence of the level of risk.
2. Standard of care. The common-law duty required assessment of the likelihood and potential consequences of injury, the probable effectiveness of precautions, and their expense and inconvenience. The perceived nature and extent of the risk and relevant industry standards informed the scope of the duty, although industry practice was not conclusive. The court applied the approach in Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776, supported by the reference to Baker v Quantum Group [2011] UKSC 17.
3. Magnetic lock. It was ordinarily inappropriate to impose a duty to use a security device where it would not have been negligent to omit its installation. The risk of robbery and the ability to operate an installed magnetic lock were insufficient. The evidence did not establish that the shop faced a particular or enhanced risk, that magnetic locks were an essential industry security measure, or that a reasonably prudent employer would have required their use after dark.
4. Scope and minority reasoning. The majority gave no general guidance that magnetic locks should be operated at every betting shop. Jackson LJ would have upheld the findings on the risk assessment, magnetic lock and lighting, and considered that expert evidence was unnecessary in this straightforward employers’ liability claim.

• Court of Appeal (Civil Division) In [2013] EWCA Civ 1963, the majority allowed Ladbrokes’ appeal, dismissed the claim and varied the costs consequences because of the defendant’s litigation conduct.
• Walsall County Court On 15 May 2012, His Honour Judge Mithani QC found Ladbrokes liable in negligence and breach of statutory duty and awarded the agreed damages of £9,000.