Teresa White & Anor v Hooke Highways Limited & Anor

An employer’s duty to take reasonable care extends to work-related travel, but liability depends on a risk being reasonably foreseeable and sufficiently probable to require precautions. An advisory red weather warning does not, without more, make a fatal accident from a fallen tree foreseeable. The court must consider the nature and likelihood of the risk, the employer’s control over external dangers, the purpose of the work, available precautions and their practical consequences. A missing or inadequate risk assessment is not independently determinative; liability arises only where a suitable assessment would probably have produced a precaution that would probably have prevented the injury. Precautions must be realistic and assessed without hindsight.

Teresa White and Gary Bristow, as representatives of Jack Bristow’s estate, brought claims against his employer, Hooke Highways Limited, and the landowner from whose land a tree fell. Jack died when the tree struck an employment van during Storm Eunice. This judgment concerned only the employer’s liability; the claim against the landowner remained for later determination.

The central issues were whether the employer should have foreseen the risk of fatal injury during a journey undertaken during a Red Weather Warning, whether it should have cancelled or altered the work or kept the employees at a depot, and whether any failure to assess or mitigate the risk caused the death.

Disposition. The claim against Hooke Highways Limited was dismissed. It was unnecessary to determine causation. The separate claim against the landowner was unaffected, and consequential directions were left for agreement or further determination.

1. Duty and foreseeability. The employer owed a non-delegable duty to take reasonable care for the employee’s safety. Applying the reasonableness approach in Baker v Quantum Clothing [2009] EWCA Civ 449 and [2009] P.I.Q.R. P19, the court treated liability as dependent on whether the employer had exposed the employee to an unnecessary and reasonably foreseeable risk. Under Whippey v Jones [2009] EWCA Civ 452, a remote possibility was insufficient; there had to be a sufficient probability of injury to require anticipation.
2. Application to the journey. The Red Weather Warning was advisory, not a prohibition on travel. Its principal relevance was to fallen debris and travel disruption. The journey used ordinary domestic infrastructure, the employer lacked control over the highway and tree, the employee’s proximity to the tree was incidental, and there was no evidence of an industry standard requiring additional precautions. The accident was therefore not a real or sufficiently probable risk of the kind necessary to establish liability. The journey was materially different from the inherently perilous journey considered in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB).
3. Risk assessment. The court applied the risk-assessment principles stated in Allison v London Underground Limited [2008] EWCA Civ 71 and endorsed in Kennedy v Cordia [2016] UKSC 6. The absence of a bespoke assessment was not determinative. The need for, and adequacy of, an assessment was context-specific and depended on reasonably foreseeable risks. Applying Uren v Corporate Leisure (UK) Ltd & Ministry of Defence [2011] EWCA Civ 66, liability would require a suitable assessment probably to have produced a precaution that probably would have prevented the injury. That evidential link was not established.
4. Proposed precautions. Even assuming foreseeability, declining an urgent and publicly important job, reallocating it to another depot, or requiring the employees to remain at the Hampshire depot was unrealistic or impracticable. The proposed standard would impose hindsight-based operational expectations. Hooke Highways was not required to do more than it had done.