Foreseeability of injury in occupations with inherent risk: emergency services and prison officers

The High Court has considered on appeal the application of the test of foreseeability when assessing breach of duty in occupations with inherent risk such as the police, fire, ambulance and prison services.

In Hill v Ministry of Justice [2022] EWHC 370 (QB), the High Court rejected a prison officer’s claim for damages for a back injury caused when an inmate pushed him, on the grounds that the risk of injury was not foreseeable based on the individual circumstances of the accident.

Background

A probationary prison offer was escorting two young offenders when one pushed him as part of a preconceived plan to allow them to barricade themselves in a cell together. The prison officer sustained a back injury. The young offender was judged to be in the worst 25% of prisoners in terms of conduct and was known for violence towards other prisoners. The claimant argued that the risk of injury to a probationary officer from the task of escorting this particular young offender was foreseeable and available reasonable measures, such as single inmate transfer or two officer escort, had not been taken to mitigate that risk.

The judge at first instance accepted the defendant’s evidence that escorting prisoners was a routine task and one officer to two prisoners was well within the maximum safe ratio. The claimant was suitably trained to assess risk and properly equipped to minimise risk further if necessary, following his personal assessment on the day. The judge rejected the claimant’s contention that the prisoner was “very dangerous”. There was nothing, he concluded, which should have given rise to an assessment of immediate and specific risk to the claimant beyond the normal background risk which was unavoidably always present. The defendant was not in breach of its duty of care.

Appeal

Various aspects of the duty of an employer to take reasonable care to protect its employees against reasonably foreseeable risk of injury in the workplace were considered in the appeal. It is worth repeating the basic position, as summarised in the judgment:

“Reasonable foreseeability of injury is not a fixed point on the scale of probability. The test is objective, but takes account of all relevant circumstances, including characteristics of the defendant in determining what is foreseeable. It is not necessary that the precise manner in which an accident happens should be foreseeable, so long as an accident of that general kind can be foreseen”.

This test takes into account all the relevant circumstances, including both the background risk inherent in hazardous occupations such as the emergency services and prison management and the foreseeable additional risks created by particular activities. As the judgment reiterates, assessment of foreseeability requires an “intense focus on the circumstances of the individual case.”

It was common ground that prison officers’ employment, in common with certain other occupations such as the ambulance service, carries an inherent risk of injury to employees, but the employer’s duty - to take reasonable care for employee safety - remains the same and is not subject to some special qualification. What it was reasonable for the employer to do, however, must be informed by their knowledge of those inherent risks and the practicalities of taking any particular step. It was agreed that providers of statutory services do not have the option to refuse to take on difficult and hazardous work, and so the practicalities of remedial measures have to take into account the resources available to the employer and the purpose of the hazardous activity. As noted by the judge,

“The prison system in this country has evolved to reflect an overall balance between the need for control of the risk posed by the prison population and what are considered reasonable and acceptable conditions of incarceration.”

There was an issue in the appeal as to whether the nature of the incident, technically an assault but with the purpose of stopping the officer from preventing both inmates from barricading themselves in a cell rather than any malicious intent of causing injury, was relevant to the issue of foreseeability. The court concluded that it was relevant to the question of whether or not any form of disruptive behaviour was foreseeable. The fact that the inmates had cooperated in the events suggested that there had probably been no tension between them immediately prior to the transfer that would have alerted the staff to an imminent risk of trouble. There was nothing known to the defendant in this case that could or should have prompted deployment of a second officer to assist in escorting the two prisoners. Doing so would certainly reduce the risk, but such a step was not reasonably necessary given what was known to the defendant.

Comment

The decision confirms that the general test for the foreseeability of the risk of injury also applies to occupations with inherent risk, but since this includes a requirement to take all the circumstances into account, the employer must address those inherent risks and take appropriate measures. In doing so, the employer is entitled to balance the risk to employees against the purpose of the activity being carried out.

The assessment of what additional steps need to be taken to address additional risks created by particular activities will be highly fact-specific. Those providing services with an inherent risk and those insuring them should take note and ensure that the employer’s individual circumstances have been assessed with a view to determining what precautions can reasonably be taken.