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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1963,  WLR(D) 277
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ON APPEAL FROM WALSALL COUNTY COURT
HIS HONOUR JUDGE MITHANI QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE FLOYD
| KERRY NICHOLLS
|- and -
|LADBROKES BETTING & GAMING LTD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Thomas Rochford (instructed by Ward and Rider) for the Respondent
Crown Copyright ©
Lord Justice Jackson :
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The first ground of appeal: risk assessment,
Part 6. The second and third grounds of appeal: policy for operating the magnetic lock,
Part 7. The fourth and fifth grounds of appeal: expert evidence and standard of care,
Part 8. Conclusion.
"Every workplace shall have suitable and sufficient lighting."
"Every employer shall make a suitable and sufficient assessment of —
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997."
"If a robbery occurs:
• Remain calm,
• Activate panic alarm if safe to do so,
"The second robber went behind the counter and into the kitchen area with Kerry. I recall the kitchen door that leads into the shop being locked at the time. I presume that Kerry must have unlocked the door to let the robber in. We are told not to allow unauthorised persons in the counter area and always lock the counter door. This was therefore in direct contravention of her training and instruction in the robbery prevention guide."
1. In my opinion Miss NICHOLLS breached company procedures by allowing the robber access to the kitchen area and handing over cash, creating other risks for her colleague and herself."
i) Failure to carry out a risk assessment for the Walsgrave Road betting shop.
ii) Failure to establish a satisfactory policy as to the circumstances in which the magnetic lock should be used at the Walsgrave Road shop.
iii) Failing to require that the magnetic lock at the Walsgrave Road shop should be operated after the hours of darkness.
iv) Failing to install proper lighting, so that staff could see persons who were seeking to enter the shop.
i) The judge erred in finding that the defendant had failed to carry out a risk assessment in respect of potential criminal activity and that this constituted breach of statutory duty and negligence.
ii) The judge erred in finding that the defendant had no clear and satisfactory policy for operating the magnetic lock.
iii) The judge erred in holding that the defendant was negligent in not operating the magnetic lock at all times after the hours of darkness.
iv) The judge erred in dismissing the entirety of the defendant's expert evidence without providing any proper basis for doing so.
v) The judge set too high a standard by which to assess the defendant's conduct.
i) All of the defendant's betting shops were fitted with a range of up to date security equipment, which was designed to deter criminals.
ii) The defendant's training manual highlighted the risk of robbery and recommended using the magnetic lock at opening and closing times.
iii) The defendant was instrumental in developing a code known as the Safebet Alliance, which defined good practice. The defendant complied with this code.
iv) The manager of the Walsgrave Road shop had completed a risk assessment checklist.
v) The Walsgrave Road shop was designated "low risk" because of its location.
Risk of robbery or attempted robbery varies significantly by location. London LBOs experience more than half the total number of UK robberies. Some security measures may be costly to install and/or operate. Therefore in any given LBO it makes sense to implement security measures consistent with the level of risk faced by that individual shop. That level of risk can be determined by carrying out a systematic risk assessment, which is also covered in this document."
In this passage LBO is an abbreviation for "licensed betting office".
"Can all the Shop Teams explain 'Do all staff understand what to do in the event of a robbery?'"
In the right hand column Mrs Swift has recorded "1" against this question, which denotes the answer yes. With the best will in the world this tick box exercise cannot possibly constitute a risk assessment.
"Judge Cowell recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been 'adequate in all the circumstances' he did not need to decide whether the risk assessment had been 'sufficient and suitable'. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury."
Both Hooper LJ and Sir Anthony Clarke MR agreed with that judgment.
"If your shop is fitted with an Electromagnetic Lock ensure all staff are familiar with the operation. Make sure that the ordinary door lock is engaged as well as the electromagnetic lock before opening and after closing."
"A light to be fitted over the front door to help to identify callers after dark before disengaging the maglock. To be controlled both by switch and sensor."
i) The defendant laid down no policy and provided no guidance as to when the magnetic lock should be used (other than during opening and closing).
ii) The defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after the hours of darkness.
iii) The lighting outside the front door was inadequate. The defendant ought to have maintained proper lighting.
Lord Justice Tomlinson:
"External lighting is important to support external CCTV (where installed) and clear vision to aid the use of Maglocks etc. Where possible external lighting also assists to identify potential risks during hours of darkness."
That again is consistent with the magnetic lock being used as a vetting device. So also was Mrs Cheetham's report after the incident, as referred to by my Lord at paragraph 54 above. However I would not myself put too much weight on this recommendation made after the incident and with the benefit of hindsight when assessing what duty lay on the Defendant before the incident had occurred.
"The issue is not whether a magnetic lock is a necessary part of a sufficient (i.e. non negligent) security system. The issue is whether, when there is a magnetic lock, it is negligent not to secure or encourage its use by having a policy as to its use and by having lighting that is such as to render it practicable to use it after dark."
1) A magnetic lock is not perceived in the industry as primarily a vetting device, although obviously it can be used for that purpose;
2) It is not shown that the installation of a magnetic lock at a betting shop is perceived within the industry as an essential security measure. There are many betting shops which have no magnetic lock and on the evidence they could even amount to a majority of such premises;
3) It is not shown that the Defendant's security procedures fell short of those standard in the industry – on the contrary, the evidence suggests that insofar as concerns the safety and security equipment installed at its premises, the Defendant adopted a more exacting standard than its competitors;
4) There had been no previous incident of robbery at this shop which was located in an area not perceived as being at enhanced risk.
Lord Justice Floyd:
The risk assessment ground of appeal
"How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable."
"… it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the [employer's] risk assessment."
"A proper risk assessment would not only have dealt with the vulnerability of the Walsgrave Road shop to the type of criminal activity that occurred on 5 November 2007 but would also have dealt with other factors which would make it possible to assess the extent to which the use of a magnetic lock might have avoided or minimised the risk of such activity during opening hours and how it might have been deployed to achieve that outcome."
The magnetic lock policy ground of appeal
"must weigh up the risks in terms of a likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."
"… I have heard no - or no valid - reasons from any of the witnesses relied upon by the Defendant about why this simple, yet clearly very effective device to control entry to the premises was not used after the hours of darkness."