Fri 23 Feb 2018

Post-accident changes to the locus or procedures - is it inevitable that liability will attach?

A claimant sustains injury at work and his employer subsequently makes changes to the locus or to its procedures to try to prevent the accident occurring again.  Not an uncommon scenario.  Are we to conclude that the post-accident change to the locus or procedures is effectively an admission of negligence on the part of the employer?  The claimant will usually say yes but is it really as straight forward as that? 

The Court of Appeal dealt with this question in Coates v Jaguar Cars Ltd.  In this case Mr Coates fell when ascending a set of steps without a handrail.  A handrail was erected after his accident.  At first instance, the judge found in favour of Mr Coates and held that a handrail ought to have been in place and that it would have prevented the accident.  The Court of Appeal disagreed and pointed out that the fact that a handrail was provided after the accident was not of itself evidence of negligence.  The Court of Appeal took the view that the steps did not pose a real risk of injury provided that those using them exercised the expected degree of care expected of anyone going up or down a set of steps. 

Another common scenario:  a defender carries out a risk assessment but, nevertheless, a claimant suffers injury.  Are we to conclude that the risk assessment was inadequate?  Again, the claimant will usually say yes but, again, it is not as easy as that?

The Northern Irish courts have recently considered this in relation to a risk assessment carried out of a footpath covered in snow.  The court considered the decision in Coates and emphasised that the fact that an accident had occurred did not mean that the person carrying out the risk assessment had been negligent in making that assessment.  The court held that the risk assessment had not been carried out with a lack of reasonable care.  The accident was unfortunate but the defender was not liable.

There is an attractive simplicity in the argument that a post-accident change to the locus or to procedures to address the cause of the accident amounts to a concession of liability.  However, that simplicity is misplaced.  The question to be answered is whether the risk of injury was foreseeable at the time the accident occurred.  The benefit of hindsight must be approached with caution.  That an accident occurred or a change was made in response to an accident does not make it inevitable that liability will attach.

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