Scottish Pleasure Cruise Business not Liable for Personal Injury
07/27/2021
Prior v Forth Boat Tours [2021] 3 WLUK 314
The recent case of Prior v Forth Boat Tours is an example of where a personal injury claim failed because the employer had done everything right. From risk assessments to staff training, Forth Boat Tours demonstrated that it took its duty of care seriously. Therefore, the case itself is a refreshing illustration of how a personal injury claim can be successfully defended.
The background to the decision
The Defender operated a pleasure cruse business. Its vessels were berthed at a marina alongside floating pontoons with ramps between them and the quayside. The pontoons and ramps moved with the tide: when the tide was low, there would be a steep angle between them and the quayside. The Defender used trolleys to move stock to and remove rubbish from its vessels; that happened at all tidal levels. The trolleys were typical of those used throughout the UK and Europe.
Regulated by the Maritime and Coastal Agency (MCA), the Defender was subject to regular audits and inspections of its operations. The MCA had approved the risk assessment associated with overloading trolleys, contained in its Domestic Safety Management documentation. Crew were told not to overload trolleys and when coming down a ramp, it was protocol that another crew member stood behind the trolley to guide it onto the boat. When the ramp was at a steep angle at low tide, anyone moving the trolley was required to ask for help.
Upon joining Forth Boat Tours, the Pursuer underwent induction training and signed a document acknowledging that he had read and understood all the DSM documentation relevant to his role, including the risk assessment. Before working on his own, he had shadowed an experienced colleague who had shown him how to use the trolley correctly.
On the day of the accident, the Pursuer was loading bar stock onto a vessel using a trolley. As the tide was low, the ramp was steeply angled. The Pursuer tried to take the trolley down the ramp on his own, lost control of it and was subsequently injured.
Following the accident, a representative of the local authority's health and safety team examined the risk assessment and found it to be precise and appropriate for the task in question.
The Pursuer claimed that the Defender had breached its common law duty to take reasonable care, arguing the risk assessment and his training/instruction had been insufficient, and that the trolley did not have brakes.
The Court’s decision
On examining the evidence, the Sheriff Personal Injury Court found that there had been no prior accidents involving trolleys, indicating that the regularly inspected risk assessment was effective in preventing dangerous incidents. Both the MCA and local authority had approved the suitableness of the risk assessment.
“The defender carried out a risk assessment, identified the relevant risks and appropriate control measures. That was sufficient to discharge its common law duty in respect of the risk assessment.”
In regard to training, the Court held the Pursuer had been aware of the approved system of work and the reasons for the control measures. He had received training during his induction and had been shown by other staff members the safe way to maneuverer trolleys at low tide.
The brakes on the trolley were found to be simple but effective. There had been no evidence of any accident involving a trolley having occurred during the 14 years that the Defender had operated out of the marina, no evidence that an alternative type of trolley with a more elaborate braking system was available or in use elsewhere, and no evidence about what an alternative braking mechanism might be and whether, if introduced, it would have prevented the Pursuer's accident.
A decree of absolvitor was therefore granted.
Comment
It can be challenging for organisations to measure what constitutes ‘reasonable care’ in terms of negligence action. It is worth reading this decision in full as it provides a clear illustration of how a judge will assess whether the health and safety measures, including risk assessments and staff training are adequate enough to provide a defence to a claim that an employer breached their duty of care.
While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these article.
