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Law Bulletin - April 2008

THOMPSONS’ CASES

Bus drivers assaulted – duty to install screens – suitability of PUWER REG 4

The claimants were five bus drivers assaulted while working for the defendants between 2001 and 2004. The buses they drove did not have a protective anti-assault screen fitted. The cases were heard together at a liability-only trial in December 2007.

The case involved an assessment of Regulation 4(1) of the Provision and Use of Work Equipment Regulations 1998 (previously Regulation 5(1) of the 1992 Regulations), with reference to the suitability or otherwise of the drivers’ work equipment. The central issue amounted to whether or not the work equipment (the bus) could be considered to be “suitable” without an assault screen.

The defendants relied on the near identical Court of Appeal case of Searby -v- Yorkshire Traction Co Ltd (2003). In Searby the Court of Appeal confirmed that the test of “suitability” involved a qualitative assessment of risk. This meant that the court had to carry out a balancing exercise between resistance of drivers to screens/the competing health and safety issues (such as glare from screens) as against the size of the risk faced by drivers without screens.

In Searby, the court found that the size of the risk in terms of the frequency of assaults was low, and that the employer was entitled to take into account significant local trade union resistance to the fitting of screens in general. It was, accordingly, found that there was no breach of either Regulation 4(1) or common law negligence in providing a bus without a screen at the time and place that Mr Searby was assaulted.

Our trial lasted for five days and evidence was heard from five layers of management from the defendants, the drivers and, significantly, their (UNITE, TGWU section) trade union representatives. A site inspection was also undertaken on the last day of the trial when the Judge and all witnesses examined a variety of screens now fitted to buses at the defendant’s premises.

HH Judge Inglis entered judgement for the claimants on the basis of a breach of Regulation 4(1) and common law negligence. He distinguished the Searby case on the basis that the numbers of assaults were far higher in Nottingham than they had been in the Yorkshire area, and also that there was not only a lack of trade union resistance to screens in Nottingham but positive and repeated requests by the local trade union for screens to be fitted. He found that, given the size of the known risk, the defendants acted too slowly in implementing a dedicated programme of screen fitting.

However, the Judge was at pains to stress that this was a “fact-sensitive” decision and that the same high numbers of assaults and lack of trade union resistance to screens might not exist in other areas of the country. There is, then, still no general principle that buses must be fitted with anti-assault screens – it still depends on the situation on the ground as to whether the “suitability” regulation has been breached.

There is to be no appeal by the defendant.

Judgement: 28 January 2008