Watson v The Richmond Fellowship

In assessing an employer’s liability for an accident caused by an employee or volunteer departing from authorised work, the central question is whether the employer took all reasonable steps to ensure safety. The inquiry is not determined by foreseeability or authorisation alone, although both may be relevant factors. Causation requires consideration of the counterfactual question of what would have happened if the defendant had acted differently. An employer is not liable where it has taken all reasonable steps and the claimant independently embarks on conduct which defeats those precautions. The same responsibility may apply to volunteers and employees where the circumstances justify that approach.

The claimant, Sandra Ann Watson, appealed against the dismissal of her dependency claim arising from the death of her husband, David Watson, after an accident at premises operated by The Richmond Fellowship. The claim concerned alleged negligence and breach of statutory duty, including duties under the Work at Height Regulations 2005.

The County Court found that the authorised gutter-cleaning task had been completed safely. Mr Watson then independently retrieved a ladder, climbed onto a roof contrary to repeated instructions, and fell while attempting to return to the ladder. The central issue on appeal was whether the Respondent could reasonably have done more to prevent the accident, particularly through the presence of its agents.

1. Appeal dismissed. The County Court judge had correctly directed himself on causation and the employer’s duties. The expression “a frolic of his own” was treated only as shorthand for the distinction between circumstances in which an employer has taken all reasonable steps to prevent harm and circumstances in which it has not.
2. The applicable legal question was whether the employer had taken all reasonable steps to ensure that its employees or volunteers were safe. The test was not foreseeability or authorisation as such. Those matters could be relevant factors when determining what reasonable steps were required in all the circumstances.
3. Causation did not require the employer’s breach to be the exclusive cause of the injury. It was sufficient that the breach was a cause in the but-for sense. In an employment context, the court could use a counterfactual inquiry, including asking what the claimant would have done if the employer had acted differently. The principles discussed in Boyle v Kodak Ltd and McWilliams v Sir Arrol & Co Ltd supported that approach.
4. The judge was entitled to find that the first phase of the work was a low-risk task, that appropriate instructions and risk assessment had been provided, and that the accident occurred only during a later unauthorised phase. The evidence showed repeated warnings against going onto the roof and no evidence that the Respondent could reasonably have prevented Mr Watson’s determined ascent.
5. The presence of Mr Hiscock did not create liability because he lacked sufficient knowledge of the task and had no reasonable opportunity to intervene. The presence of Mr Tyler likewise did not establish liability. Although Mr Tyler was present and gave warnings, nothing further could reasonably have been done through him to prevent the accident.
6. The appellate point concerning Mr Tyler could properly be considered because it involved no new evidence and required only the application of law to facts found at trial. The rule in Ladd v Marshall therefore did not prevent consideration of the point. The appeal was dismissed without the need to consider contributory negligence.

• High Court (Chancery Division): On 24 July 2019, Marcus Smith J dismissed the appeal from the County Court’s dismissal of the claimant’s liability claim.
• County Court at Salisbury: His Honour Judge Berkley dismissed the claim following a liability-only trial.