A recent judgment from Livingston Sheriff Court highlights the importance of proving that your employer has failed in their statutory duty of care to you as an employee. This must be successfully proven in order to win a personal injury claim for an injury sustained in the workplace.
Former prison officer Bernadette Smith (the pursuer of this case) tried to claim damages from the Scottish Prison Service (SPS). She sustained injuries to her neck, back and shoulder during a “mock riot” training exercise in West Lothian.
The objective of the training exercise was to gain control of a prison wing after a riot. The prison officers were split into two groups: “shield holders” and “workers”. All were dressed in protective clothing. Miss Smith was a “shield holder”. To regain control of the prison wing, the “shield holders” had to get through the metal gates to access the wing. The wing had various bits of debris in it, including furniture and a plank of wood. Whilst trying to get into the gates, a large 12ft plank of wood hit Miss Smith. Following the accident, she was violently sick and was treated in hospital for severe whiplash as a result of her physical injuries.
This case created a bit of controversy in regards to how the pursuer sustained her injuries. The witnesses for the defenders claimed that immediately following her injury, Miss Smith did not mention to her training manager anything about a plank of wood. Furthermore, there seemed to be discrepancies between Miss Smith’s account of how many times she had been hit by the plank of wood in comparison to witnesses for her side of case.
Nonetheless, the sheriff rejected the argument made by the defender that her evidence was unreliable. This was because it was clear she had been injured and greatly affected by the accident, and discrepancies between what she said just after the accident had happened and in her written statement could be put down to shock.
In relation to statutory law, which included regulations such as The Provision and Use of Work Equipment Regulations 1998, Sheriff Kinloch ruled that there had been no breach of any of the statutes relied upon. The common law case was based on the alleged negligence of the SPS. In his written judgment, Sheriff Kinloch’s view was that “the defenders… did as much as they reasonably could to prevent injury, but it seems to me that it was simply not possible to completely remove all risks of injury”.
In his final judgment, he continued:
“The defenders had to make the training as realistic as possible, and the pursuer’s own witnesses accepted that this even made it permissible for the mock rioters to strike prison officers shields with objects. However, given the very many steps which the Scottish Prison Service took to make the course safe I am not persuaded that the risk of injury was anything other than a small risk of a slight injury. There was no evidence before me, for example, that other people had been injured on these courses.”
You can read the full judgment here https://www.scotcourts.gov.uk/search-judgments/judgment?id=f3f5d6a6-8980-69d2-b500-ff0000d74aa7
This case highlights the importance of statutory interpretation, as well as building your personal injury case on the common law. Had the pursuer’s solicitors been able to establish a statutory footing for their argument, their case may have succeeded.
When you instruct a solicitor for your personal injury case, ensure that your injuries are well documented at the time of the accident. This would mitigate the possibility of the other side trying to discredit you and portraying your testimony as unreliable.