Keoghs Insight

Author

Kate Burt

Gavin Redman v Apex Self Storage

AWARE17/04/2013
Casualty Aware 2

Similar to Uren, in a recent Keoghs’ trial success the judge had to consider whether an employee was acting in the course of his employment at the time of his accident.

The claimant attended an ‘It’s a Knockout’ style charity event and brought his action against his employer on the basis that he was acting in the course of his employment and they had failed to adequately risk assess any part of the day and had therefore failed to take any steps to ensure his safety. As part of the event he was required to descend a wet slide into a shallow pool of water. In doing so the claimant alleged he sustained an injury to his Achilles tendon. An employee of the defendant had, at her own behest, arranged the participation of a team consisting of 10 members, only two of which were employees.

A manager for the defendant was present on the day in question but only to support his son and nephew who were taking part in the activities. The defendant sponsored the team in the form of the £350 entry fee in return for the team wearing t-shirts advertising the defendant company. They had no other involvement in the event.

The defendant denied the claimant was acting in the course of his employment and in doing so sought to distinguish the case from Uren. In that case, the defendant commissioned the programme of events and it was common ground that whilst the claimant was taking part voluntarily, he was on duty. At trial the court decided that the purpose of the event was to raise money for charity.

Participants included non-corporate teams. The claimant had volunteered to take part without instruction from the defendant. A notice provided by the organiser and signed by the claimant gave a clear warning that the surfaces would be slippery and wet and that participation was not mandatory. The accident happened just before 4pm and by the time of the accident approximately 60 others had used the slide without injury.

By his own admission, the claimant had stepped into the water prior to using the slide and was therefore aware of the depth. The claimant had not argued or proven that the equipment was defective.

It was held that the claimant was not participating in the course of his employment. If an employee volunteers and the employer later decides to sponsor the team or event, this does not bring the event into the ambit of the employment, despite any goodwill that the employee may be exhibiting. It was also held that irrespective of whether the claimant was acting in the course of employment, no duty of care existed. On the day of the accident the claimant had not believed the defendant had assumed any duty of care. Further, the defendant had no authority to intervene in any aspect of the day.

Interestingly, the court took a similar but independent view to that expressed in Uren. Had a duty of care existed, this would have extended to the defendant satisfying itself that a suitable risk assessment was in place.

The court held that this was simply an accident. The risk of injury was apparent to the reasonable man and that the claimant was given adequate information in respect of health and safety.

Again echoing themes in the Uren case, the court took into account the provisions of the Compensation Act 2006. Section 1 of the act requires a balancing of the risks of participating in desirable activities against the social benefit derived from the same.

In this case, the claimant was found to have willingly accepted the risks involved. There was no negligence or breach on behalf of the defendant and the claim was dismissed. Reassuringly, on occasion, there is such a thing as ‘just an accident’.