HENSER-LEATHER v SECURICOR CASH SERVICES LTD [2002] EWCA Civ 816

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE HAWKESWORTH QC
(Leeds County Court)
[2002] EWCA Civ 816Case No No B3/2001/2476Venue Royal Courts of Justice, Strand, London WC2, Thursday, 16th May 2002
Between
HENSER-LEATHERSECURICOR CASH SERVICES LTD
Before
Lord Justice KennedyLord Justice MayLord Justice TuckeyMR ANDREW LEWIS (Instructed by Whittles of Leeds) appeared on behalf of the AppellantMR RICHARD BARRACLOUGH (Instructed by Hextall Erskine of London) appeared on behalf of the RespondentDate 16 May 2002

LORD JUSTICE KENNEDY:

This

[1]is an appeal from a decision of His Honour Judge Hawkesworth QC who, in Leeds County Court in November 2001, dismissed the claimant's claim for damages for personal injuries. Facts[2]The claimant was seriously injured on 31st August 1995. The material facts in relation to his injury are not contentious. The claimant was 55 years of age, and was employed by the defendants collecting cash from commercial outlets such as petrol stations. He worked alone in a marked Ford Escort van and collected up to £7,500 at once with a maximum in his van of £250,000. He was provided with a smoke box, a helmet and a visor but no body armour. He had been doing that type of work - known as business link service - working alone from the Bradford depot of the defendants since 1988 or 1989.[3]On 31st August 1995 he had just collected money and cheques in his smoke box from a petrol station in Leeds when he was challenged by a robber who grabbed the smoke box and shot him in the stomach with a .38 calibre hand gun. As a result, he suffered very serious injuries. Before Judge Hawkesworth it was contended on his behalf that his employers were in breach of statutory duty and negligent in failing to provide him with and encourage the use of body armour. Judgment[4]The judge was concerned only with the issue of liability. He began by reviewing the statistical evidence adduced before him, particularly in relation to the Bradford depot. As to that his conclusion was that - "the risk of an attack by an armed assailant and the consequent risk of gun shot injury was a risk present in 1995 to a degree which, put at its lowest, raised the need to examine the potential benefits of the protection afforded by body armour."[5]The judge referred to the evidence of requests made to the defendants for the provision of body armour and to the trials they carried out, none of which were properly recorded. The claimant's expert witness was an accident and emergency consultant, Mr Bleakman, who had a particular interest in knife wounds and was familiar with the literature in relation to firearms. In the light of his evidence the judge rejected various objections to body armour raised by the defendants, such as - 1) That it would not be effective against a weapon fired at point blank range; 2) Even if a bullet was held there would be a serious risk arising from back face deformity; 3) That body armour increases the risk of an assailant using his weapon. As to that the judge said: "It would be highly implausible in my view to conclude that the wearing of body armour increased the risk of an assailant firing his weapon, nor in any event would there be any reliable means of judging whether such an effect had been produced. There was certainly nothing in the literature produced which indicated that the police in the UK, or in the US, held that view of the wearing of body armour." 4) That a wearer of body armour would be more inclined to stand and fight, and less able to run.[6]The judge heard evidence as to what was done by others (such as the Post Office, Securitas and the members of the British Security Industry Association). In effect, in 1995 no employer routinely provided body armour for those involved in the movement of money. At least with some police authorities the position was different. For example, in 1994 Northumbria had body armour available on request. It had disadvantages, including in particular its bulk, that it was hot in summer and that it tended to ride up when driving.[7]Surprisingly, as the judge found, the defendants had done no formal risk assessment in relation to the work done by the claimant and the possibility of providing protective equipment in the form of body armour. As the judge said:
"I find that state of affairs in relation to the responsibility for the health and safety of its employees astonishing."
[8]The judge therefore concluded that the defendants' operations director's decision - "not to issue body armour, either as a standard uniform item, or as an option, was not based upon adequate assessment of its effectiveness, or upon a full and proper understanding of its capabilities."

The judge had regard to the general practice in the industry at the time, but said:

" ..... from the claimant's standpoint, the duty owed to him as an individual, required the employer to evaluate the risks applying to his particular employment, and in his particular locality. Bradford was one location within the country, and there were others, where the incidence of attacks on the defendants' employees did, in my judgment, require the defendants to take effective steps to assess scientifically and methodically the risks and benefits of the provision of body armour by at least 1993 to 1994."
[10]The judge went on to find that a covert type of vest of a type produced in court could have been made available in 1995. He continued:
"Had a proper assessment been carried out its wearability could have been tailored to meet the ergonomic demands of the defendants' staff, although I accept that it would have been uncomfortable to wear in hot weather and may have had some tendency to ride up when the wearer was seated. Its weight of 2.3 kilos was by no means excessive or made it unduly cumbersome."
[11]Thus the judge concluded that the defendants - "were in breach of their common law duty of care in failing to make such protection available to staff at their Bradford branch engaged in cash collections and deliveries in August 1995."[12]However, the judge then drew a distinction between business link staff and others, saying that - "in the absence of a specific warning of attack I do not consider that in relation to business link work the staff, such as the claimant, should have been required to wear such protection if they did not wish to do so. The amounts of cash handled were of relatively low value, and as Mr Duncombe said in evidence, such work was regarded as of a comparatively lower risk than other cash handling work."[13]The judge then considered whether, if it was left to him, the claimant would have worn the equipment and the judge was not persuaded that he would have done so.[14]That disposed of the issue of common law liability, but the claimant also relied on the Personal Protective Equipment at Work Regulations 1992 which had come into effect on 1st January 1993. They were introduced to meet the obligations of the United Kingdom to comply with the Personal Protective Equipment Directive. Having consulted that Directive, the judge held that the Regulations were not apt to cover body armour so there could be no breach of the Regulations. Before the judge neither side had contended for the construction of the Regulations which appealed to the judge, and before us counsel are in agreement that the judge was wrong. The judge said that if he was wrong then - "Holding as I do that body armour was effective and could have been suitably provided, it would follow that a breach of the Regulations would have been established."[15]He went on to say that having regard to Regulation 10 a causative breach of the Regulations would have been established by the claimant if the Regulations had applied. This Appeal[16]Both sides now appeal the judge's conclusions in relation to negligence at common law. The defendants attack the primary finding of breach of duty, and the claimant contends that the judge should have found that even business link staff at Bradford should have been required to wear body armour. The claimant also challenges the judge's finding that he would not have worn body armour if it had been provided. In addition the claimant contends that he is entitled to the full benefit of a finding of breach of statutory duty, and it is that aspect of the appeal to which I now turn. The Statutory Duty[17]The 1992 Regulations were introduced under Section 15 of the Health and Safety at Work Act 1974 and a breach of the Regulations does give rise to civil liability (see Section 47 (2) of the 1974 Act). Regulation 4 (1) provides:
"Every employer shall ensure that suitable personal protective equipment is provided to employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective."
[18]Personal protective equipment is defined by Regulation 2 which provides:
" ..... `personal protective equipment' means all equipment (including clothing affording protection against the weather) which is intended to be worn ..... at work and protects him against one or more risks to his health or safety ..... "
[19]On the face of it, that wording is clearly wide enough to include body armour where there is a risk of being shot. But Regulation 4 (1) requires that the equipment be suitable. As to that, Regulation 4 (3) provides:
" ..... personal protective equipment shall not be suitable unless - (a) it is appropriate for the risk or risks involved and the conditions at the place where exposure to the risk may occur; (b) it takes account of ergonomic requirements ..... of the person or persons who may wear it; (c) it is capable of fitting the wearer correctly ..... (d) so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;"
[20]Regulation 6 (so far as material) provides:
"(1) Before choosing any personal protective equipment which by virtue of regulation 4 he is required to ensure is provided, an employer ..... shall ensure that an assessment is made to determine whether the personal protective equipment he intends will be provided is suitable. (2) The assessment required by paragraph (1) shall include - (a) an assessment of any risk or risks to health or safety which have not been avoided by other means; (b) the definition of the characteristics which personal protective equipment must have in order to be effective against the risks referred to in sub-paragraph (a) of this paragraph, taking into account any risks which the equipment itself may create; (c) comparison of the characteristics of the personal protective equipment available with the characteristics referred to in sub-paragraph (b) of this paragraph."
[21]I do not doubt that the risk to someone doing the job which this claimant was doing when he was shot can be to some extent controlled by measures such as parking his van reasonably close to the office from which cash had to be removed, and training employees not to offer resistance and to use the smoke box which was provided. But so long as it remained (as it plainly did) well above the risk to other members of the public going about their daily tasks, it seems to me that the control could not be described as adequate.[22]There was therefore, in my judgment, a clear obligation on the employers to carry out the assessment envisaged by Regulation 6, which they did not do, and then "ensure" that "suitable" body armour was provided. On the judge's findings of fact such body armour was available in 1995.[23]Furthermore Regulation 10 placed obligations on employer and employee in relation to the wearing of such equipment. So far as material it provided:
"(1) Every employer shall take reasonable steps to ensure that any personal protective equipment provided to his employees by virtue of regulation 4 (1) is properly used. (2) Every employee shall use any personal protective equipment provided ..... "
[24]The defendants took no steps to comply with Regulation 10(1) so it is, in my judgment, impossible to contend that the claimant would not have complied with his obligations under Regulation 10(2) had the body armour been supplied and had those steps been taken. The judge found that if body armour had been supplied and it had been left to him to decide whether or not to wear it, he would not have done so. That is a totally different situation. Mr Barraclough's case[25]In his submission to us today Mr Barraclough, on behalf of the respondent, said first that the judge did not properly analyse the risk for the purposes of Regulation 4 (1) or the suitability of the equipment available in 1995.[26]As to the risk, he pointed out, and I would accept that the risk to a business link driver such as the claimant was statistically less than the risk to a member of a cash-in-transit team. Mr Barraclough posed the question whether it was a risk within the meaning of Regulation 4, so as to require the provision of personal protective equipment, as opposed to control by other means. As to that it seems to me that so long as the other means cannot reduce the risk to the sort of level to which I have referred (that is to say, the level experienced by ordinary members of the public going about their ordinary business) then it plainly falls within the scope of Regulation 4, not least because of the possibility of serious injury if a gun is used. The risk to health or safety under consideration is not just the risk of dermatitis or a cut hand, it is a risk of grave injury or death.[27]Mr Barraclough then submitted that where the risk is, to use his word, "minimal", that fact should inform the obligation imposed by Regulation 4 to ensure that "suitable" personal protective equipment is provided. He invited us to re-visit a topic canvassed at trial, namely whether the provision of protective vests would actually increase the risk. That is clearly a relevant factor, as can be seen from Regulation 4 (3) (d) and Regulation 6 (2) (b). Mr Barraclough criticised the evidence of the claimant's expert, Mr Bleakman, as he did in the court below. He referred to the general practice in the industry of trying to "take the operative out of the equation" by instructing him or her to co-operate and not to resist. But that does not seem to me to address the residual risk to which Regulation 4 relates.[28]Mr Barraclough reminded us that the judge found that the defendants were not liable at common law for not insisting on the use of body armour by business link drivers and submitted that for such drivers body armour was not "appropriate" for the risks involved as required by Regulation 4 (3) (a). But, as Lord Justice May pointed out during the course of argument, this submission seemed to be based on a mis-reading of Regulation 4 (3). The primary obligation is that in Regulation 4 (1), to ensure that suitable personal protective equipment is provided. Regulation 4 (3) makes it clear that equipment will not be suitable if it does not meet certain criteria, but failure to meet those criteria does not relieve the employer of the obligation imposed by Regulation 4 (1).[29]Mr Barraclough invited our attention to what, on the evidence up to 1995 and since, the police and the security industry as a whole has been doing. He pointed out that in 1995 the vests available were, as he submitted, hot to wear and would tend to ride up when driving. Those were arguments canvassed and taken fully into account when dealing with liability at common law. The judge concluded, and on the evidence he was clearly entitled to conclude, that what was available, despite its disadvantages, could have been effectively used in that employees could realistically have been required to wear it.[30]Mr Barraclough then re-visited the issue canvassed below as to whether the issue of body armour would increase the risk of firearms being discharged, perhaps by encouraging robbers not merely to threaten but to fire at some unprotected area such as the legs. Obviously, many in the security industry adhere to that view which, Mr Barraclough submits, is based on their extensive consideration of criminal psychology. But, as the judge pointed out, there was before the judge no statistical support for that view in circumstances where, it might be thought, evidence of that kind could be produced. In those circumstances with expert evidence from Mr Bleakman to the opposite effect, the judge was, as it seems to me, plainly entitled to decide as he did.[31]Mr Barraclough pointed out that Mr Bleakman was more emphatic at the beginning of his evidence than at the end, and invited our attention to what he said and to what was put to him in relation to blunt trauma injury. Clearly there was, and still is, much debate. In 1997 a police report stated:
"The most important aspect of the body armour's performance is to prevent penetration of the bullet. The ability of an armour to prevent excessive behind-armour injury or trauma, as it is more commonly called, has been the subject of debate for many years. The discussion is still unresolved and medical opinion varies."
[32]Obviously there is a balance to be struck but some blunt trauma injury may be significantly better than being shot, and here again the whole issue was fully canvassed at the trial. I have checked the various references to which Mr Barraclough invited our attention. I notice that in re-examination Mr Bleakman made the point that 20 years of prior experience had not yielded any recorded case of significant internal injury attributable to back face deformity or blunt trauma.[33]Returning to the question of discomfort, Mr Barraclough drew attention to the position of women. That again was a problem canvassed in evidence, and it is possible to see how with time better fitting vests became available, but in the context of this case that is something of a red herring because the claimant was a man, working alone.[34]Perhaps the most powerful point advanced by Mr Barraclough related to the practice in the industry to which I have already referred. He reminded us of the assessment made by the Post Office in 2000 which concluded as follows:
"Based upon the analysis detailed above and the attached risk assessment at this time it is recommended that ballistic protective clothing is not provided and issued to CIT employees as the current risk of injury to staff from firearms and bladed instruments is LOW. Furthermore, currently there is no suitable product available on the market which is light weight, offers little restriction to movement and provides full protection to all parts of the body."
[35]Whether that constitutes an adequate response to the duty imposed by Regulation 4 (1), we do not have to decide. I have also, as requested, read the report of Mr Duncombe, the defendants' operations and security director at page 431 and the statement of Mr Benson at page 369G, and his evidence, as well as that part of the evidence of Mr Fullicks of Securitas which we were asked to consider. Mr Barraclough also reminded us of the evidence of Mr Goodall, consultant to the British Security Industry Association. We were reminded that in 1995 not many police forces were using body armour and that it was not until 1997 that the use of such equipment was, as Mr Barraclough put it, "rolled out" with the Metropolitan Police. Up to that time the "Met Vest", as it has been described, had not met the Police Scientific Development Branch standards.[36]Mr Barraclough's overall submission was that if the judge had considered, as he should have done, the question of suitability raised by Regulation 4 (3) he would or should have concluded that, for a variety of reasons, what was available in 1995 was unsuitable and inappropriate having regard to the level of risk. I find that impossible to accept, firstly because in my judgment it depends on a flawed approach to Regulation 4, which is not designed to give comfort to an employer, and secondly because, in effect, what Mr Barraclough is asking us to do in this court is to re-open the decisions of the judge in relation to a variety of matters which he had to consider in the context of common law liability. Those decisions were almost entirely dependent on his evaluation of the evidence he heard, and, as Mr Barraclough in effect concedes, there was evidence, in particular from Mr Bleakman, on which the judge was entitled to rely. In those circumstances I do not see how this court can realistically be expected to interfere with the judge's decisions. I would therefore allow the appeal and order that judgment be entered for the claimant for damages to be assessed. Postscript[37]Although this case may well be, as Mr Barraclough submitted, of some importance to the industry, it must be remembered that it is a decision made on specific evidence called in 2001 in relation to an incident in 1995. It is clear from the evidence and from the submissions that as time goes by perceptions change as to risk, and as to what can be done to control risk. Not too much should be made of a decision which in the end is bound to be both facts and evidence specific.

LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by Lord Justice Kennedy.

LORD JUSTICE TUCKEY: I also agree.

Order

Appeal allowed with the costs subject to detailed assessment. Permission to appeal refused

Cited in 1 later judgment