Employers doubtless hope that their risk assessments will sit on their shelves gathering dust and will never need to be dug out (except, of course, to be updated) as part of a disclosure exercise. It is obvious that the purpose of the assessment is to encourage employers to think of risks to their employees and to get them to take steps to reduce those risks. But how far does an employer have to go when risk assessing? Can an employer delegate the exercise of carrying out a risk assessment? What is the point anyway of the risk assessment in personal injury litigation?
These questions were all considered in the recent case of Uren v Corporate Leisure (UK) Ltd and MOD (Unreported, 2nd February 2011). Mr. Uren was employed by the MOD and was taking part in a game at a 'Health and Fun Day' (not in Afghanistan but RAF High Wycombe). The game involved retrieving plastic fruit from an inflatable pool with sides which were cylindrical and 1.04 metres high and with water 18 inches deep. Tragically Mr Uren dived into the pool head first and was rendered tetraplegic as a result of breaking his neck. The issue was whether the defendants were in breach of their common law duty of care. Accordingly the questions for the court were the magnitude of the risk and whether such risk could reasonably be reduced or eliminated. The defendants succeeded at trial but the claimant's appeal was allowed on the basis that the judge failed to give sufficient reasons for preferring the defendants' expert.
The Court of Appeal in Uren made some useful comments on risk assessments. Smith L.J. commented that it was obvious that the failure to carry out a proper risk assessment could never be the direct cause of an injury. It may be indirectly causative where it can be shown that some action could reasonably have been taken which would have prevented the injury had been a proper assessment been carried out. The role of the risk assessment at trial is therefore very often bound up with assessing the magnitude of the risk of injury as well as what steps could have been taken to prevent it.
One of the difficulties with those carrying out risk assessments is how far the assessor needs to go. There was some discussion in the case about the impossibility of considering every variable in a given activity. Smith L.J. commented that formal risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way but they may be a less effective tool where a lot of variables may come into play. She expressed sympathy with the recommendation to 'keep it simple'. Defendants may well want to use this passage when being criticised for a simple risk assessment which does not cover every variable. Equally, when faced with a poor generic assessment (created simply to tick the box) claimants will want to draw attention to Smith L.J.'s comment that risk assessments are an 'opportunity for intelligent and well-informed appraisal of risk'.
On the question of whether the risk assessment can be delegated, Smith L.J. reiterated that it could not. However she said that where an employer used a contractor for an activity and satisfied himself that the contractor had carried out a thorough risk assessment, that might lead to the conclusion that the risk assessment carried out by the employer was suitable and sufficient even though not as detailed as would otherwise be required. In the case of Uren the two defendants had not even conferred and so the court had little difficulty in saying that the MOD could not properly rely on the contractor's assessment.