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Law Bulletin - June 2007

Are employers liable for tickling?

The claimant was injured during a role play on a control and restraint course. She was one of three people restraining a fourth person. The person being restrained lashed out and she suffered injuries to her ribs. The person being restrained said that he was being tickled at the time and that is why he had lashed out the way he did. Our case was based on the vicarious liability of the employer, that the employer was liable for the actions of an employee in intentionally tickling the employee who lashed out.

Regretfully, the case failed. The Judge, who did not really give a precise reasoning, was not convinced that there was any intentional tickle and felt that it may have been a one-off careless touch and therefore the employer was not liable.

Tait -v- Bedfordshire & Luton Mental Health & Social Care. Luton County Court, 13 March 2007

Claimant falls in ditch – council liable

The claimant had been at a party. He was walking home just after midnight through a rural area with no street lighting. It was pitch dark.

The footpath deviated to the left away from the roadside. This was to take pedestrians away from a grass verge at the side of the road, and to make sure that they did not fall down a manmade ditch situated in the grass verge. When the road was built it was necessary to put in place a concrete strengthening device to support the road, which was raised as a consequence of the grass verge. This structure created a drop of about three foot which was not guarded off. The claimant decided to take a route along the grass verge instead of following the footpath. He fell into the ditch breaking his leg.

The defendant said that it was not foreseeable that anyone would walk down the grass verge given that a footpath had been built for the purpose of directing pedestrians away from the hazard. They also argued that it was unreasonable to expect them to guard or fence every conceivable hazard as it would cost too much. Nevertheless after the accident they had put in place a guardrail either side of the hazard (at a cost of £120).

The Judge held that the defendants had failed in their common law duty of care to the claimant as a pedestrian. The structure was a unique project that created a sheer drop of three foot. It was foreseeable that pedestrians would choose to use the grass bank at night and stay near the road rather than the footpath which was below the height of the road and even more secluded. However the Judge decided one third contributory negligence on the basis that the claimant should have taken a torch as he knew he would be walking home late, could have kept to the footpath, could have crossed the road or walked on the other side.

Bowes -v- North Yorkshire County Council. Leeds County Court, 23 April 2007.