England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WALSALL COUNTY COURT
HIS HONOUR JUDGE MITHANI QC
0CV02151

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th July 2013

Lord Justice Jackson :

1. This judgment is in eight parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The present proceedings,

Part 4. The appeal to the Court of Appeal,

Part 5. The first ground of appeal: risk assessment,

Part 6. The second and third grounds of appeal: policy for operating the magnetic lock,

Part 7. The fourth and fifth grounds of appeal: expert evidence and standard of care,

Part 8. Conclusion.

Part 1. Introduction
2. This is an appeal by the owner of a betting shop against a decision that it is liable to an employee for failing to take steps to prevent a robbery occurring.
3. Ladbrokes Betting and Gaming Ltd is defendant in the action and appellant in this court. Ms Kerry Nicholls is claimant in the action and respondent in this court.
4. The first issue in the appeal is whether the judge was right to find the defendant negligent and in breach of statutory duty by failing to carry out a risk assessment. The remaining issues concern whether the judge was right to find the defendant negligent and in breach of statutory duty by failing to take certain measures to prevent the occurrence of robbery.
5. I shall refer to the Workplace (Health, Safety and Welfare) Regulations 1992 as "the 1992 Regulations". I shall refer to the Management of Health and Safety at Work Regulations 1999 as "the 1999 Regulations".
6. Regulation 8 (1) of the 1992 Regulations provides:

"Every workplace shall have suitable and sufficient lighting."

7. Regulation 3 (1) of the 1999 Regulations provides:

"Every employer shall make a suitable and sufficient assessment of —

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997."

8. One piece of equipment which features in this case is a magnetic lock. This is a device which enables shop staff to control who enters the premises. If a magnetic lock is in operation, the front door of the shop is held closed unless and until a member of staff presses a switch to release the magnetic lock. This device is quite often used in jewellers' shops and certain other shops where there is a security risk. Magnetic locks are fitted in most, but not all, of the betting shops operated by the defendant.
9. After these introductory remarks, I must now turn to the facts.
Part 2. The facts
10. The defendant operates approximately 2,200 licensed betting shops throughout the UK. One of their shops is situated in Walsgrave Road, Coventry. In October 2006, this shop was moved two doors up the road to its present location, where it underwent a refit.
11. The defendant employs Mrs Jacqueline Swift as manager and Mrs Leanne Gilder as deputy manager at the betting shop in Walsgrave Road. Other employees of the defendant who feature in the narrative are Mr Michael Lewis and Mrs Jeanette Cheetham. Mr Lewis is the defendant's security and safety co-ordinator with national responsibility. Mrs Cheetham has worked for the defendant in a variety of roles, but since December 2006 she has been a security and safety investigator.
12. In March 2007 the claimant, who was then aged 18, started to work for the defendant as a cashier at the betting shop in Walsgrave Road. She received training in the defendant's company procedures.
13. The training manual which was used for the purpose of the claimant's training included a section headed "Robbery and Prevention Advice". This contained the following passage:

"If a robbery occurs:

• Remain calm,

• Activate panic alarm if safe to do so,

• Co-operate."

14. On the evening of 5^th November 2007 Mrs Swift was on duty as manager. She and the claimant were working behind the counter. At about 6.30 p.m. a robbery occurred. Two men dressed in black and wearing balaclava helmets burst into the shop. One of the men pointed a gun at the claimant. He demanded that she unlock the door into the staff area, open the safe and give him all the money. The claimant was petrified and duly complied. The robbers then made their get away. The whole incident was filmed on CCTV, but the faces of the robbers cannot be seen on the film because of their headgear.
15. The claimant was badly shaken by the incident. Her parents came to take her home. She gave a statement to the police on the following day. As a result of the incident the claimant suffered psychiatric injury, but fortunately no physical harm.
16. The claimant and her advisors took the view that the robbery had occurred because of the defendant's failure to take proper precautions. They intimated a claim for damages, which the defendant strongly denied.
17. In those circumstances the claimant commenced the present proceedings.
Part 3. The present proceedings
18. By a claim form issued in the Coventry County Court on 18^th August 2010 the claimant claimed damages for personal injuries caused by the defendant's negligence and breach of statutory duty.
19. The breaches of statutory duty and negligence pleaded in the amended particulars of claim included failure to carry out a proper risk assessment, as required by regulation 3 of the 1999 Regulations, and failure to ensure that there was adequate lighting outside the front door, as required by regulation 8 of the 1992 Regulations. The claimant also pleaded a number of allegations of negligence which went beyond the defendant's statutory duties. In particular, she alleged that the defendant was negligent in failing to keep the front door locked by operating the magnetic lock which was fitted to it.
20. In due course the defendant served a defence denying all the alleged breaches and denying causation. The evidence which the defendant served in support of its defence was far from satisfactory. The witness statements served on behalf of the defendant contained some incorrect assertions, which the trial judge held to be deliberate falsehoods.
21. Paragraph 25 of Mrs Swift's first witness statement reads as follows:

"The second robber went behind the counter and into the kitchen area with Kerry. I recall the kitchen door that leads into the shop being locked at the time. I presume that Kerry must have unlocked the door to let the robber in. We are told not to allow unauthorised persons in the counter area and always lock the counter door. This was therefore in direct contravention of her training and instruction in the robbery prevention guide."

22. The trial judge described that paragraph as "shocking" and I agree with that assessment. A terrified young woman who is forced at gun point to let a robber into the counter area can hardly be criticised for breaching company policy. Mrs Swift's grudging qualification of that paragraph in a later witness statement simply makes the matter worse.
23. Mr Lewis asserted in his witness statement that every Ladbrokes betting shop had been the subject of individual risk assessment. Despite that assertion no record of a risk assessment relating to the Walsgrave Road shop was produced by the defendant on disclosure or subsequently. When Tomlinson LJ pressed the defendant's counsel about this during argument, the best answer which counsel could give was that there was undoubtedly something somewhere; it had just not been located.
24. To make matters worse the defendant served an unsatisfactory expert report prepared by a retired police officer called Barry Phillips. In that report Mr Phillips expressed views favourable to the defendant on every single issue in the case. He indicated a preference for the defendant's factual evidence over the claimant's factual evidence. He even included the following paragraph:

"COMMENT

1. In my opinion Miss NICHOLLS breached company procedures by allowing the robber access to the kitchen area and handing over cash, creating other risks for her colleague and herself."

25. It is most surprising that an expert witness feels able to endorse this particular criticism of the claimant. Furthermore Mr Phillips' comment was based on a misreading of company policy. The training manual required staff to co-operate with intruders in the event of a robbery: see Part 2 above.
26. The action came on for trial before His Honour Judge Mithani QC in the Walsall County Court in May 2012. Quantum of damages was agreed in the sum of £9,000. So the only issue was liability.
27. At the start of the trial the judge watched a film of the incident as recorded on CCTV. The claimant then gave evidence in support of her claim. She gave an account of the robbery and its effect upon her. She also said that she had complained to Mrs Swift about the quality of the lighting outside the front door of the shop, but those complaints were ignored. The judge found the claimant to be an honest witness and accepted her evidence.
28. The defendant's witnesses also gave evidence and were cross-examined. They did not make a favourable impression upon the court. The judge concluded that these witnesses were simply seeking to defend the defendant's position, even on matters where it was indefensible.
29. On 15^th May 2012 the judge gave judgment in favour of the claimant on liability and awarded damages in the agreed sum of £9,000.
30. In the course of his judgment the judge was strongly critical of the manner in which the defendant had conducted its defence. He rejected the entirety of the defendant's expert report as being biased and unreliable.
31. The judge found the following breaches of statutory duty and negligence proved:

i) Failure to carry out a risk assessment for the Walsgrave Road betting shop.

ii) Failure to establish a satisfactory policy as to the circumstances in which the magnetic lock should be used at the Walsgrave Road shop.

iii) Failing to require that the magnetic lock at the Walsgrave Road shop should be operated after the hours of darkness.

iv) Failing to install proper lighting, so that staff could see persons who were seeking to enter the shop.

32. In relation to causation, the judge held that if the defendant had complied with the above duties the robbery would probably not have occurred. One significant feature of this case is that in order to avoid being identified on CCTV, robbers needed to put on balaclava helmets before entering the premises. If the counter staff had seen two men dressed in black and wearing balaclava helmets outside the front door, they would not have wished to let them in. If the magnetic lock had been in operation, the staff could have effectively prevented entry. It is quite true, as Tomlinson LJ points out, that robbers may gain entry by "tailgating". On the other hand, any robbers outside waiting for an opportunity to tailgate would be likely to attract attention. The evidence was that very few customers visited the shop after dark.
33. The defendant was aggrieved by the judge's decision. Accordingly it appealed to the Court of Appeal.
Part 4. The appeal to the Court of Appeal
34. By an appellant's notice dated 6^th June 2012 the defendant appealed to the Court of Appeal against Judge Mithani's decision on liability.
35. I would summarise the grounds of appeal which have been actively pursued as follows:

i) The judge erred in finding that the defendant had failed to carry out a risk assessment in respect of potential criminal activity and that this constituted breach of statutory duty and negligence.

ii) The judge erred in finding that the defendant had no clear and satisfactory policy for operating the magnetic lock.

iii) The judge erred in holding that the defendant was negligent in not operating the magnetic lock at all times after the hours of darkness.

iv) The judge erred in dismissing the entirety of the defendant's expert evidence without providing any proper basis for doing so.

v) The judge set too high a standard by which to assess the defendant's conduct.

36. It should be noted that the pleaded grounds of appeal deal with risk assessment as the second issue. I believe it is more logical to deal with risk assessment first. In my summary I have therefore taken the liberty of reversing the order of grounds one and two.
37. The pleaded grounds of appeal also include a challenge to the judge's findings on causation. Very sensibly Ms Foster for the defendant did not pursue this ground of appeal at the hearing. So I shall say no more about it.
38. I shall now address the grounds of appeal individually.
Part 5. The first ground of appeal: risk assessment
39. In support of this ground the defendant relies upon its evidence of the following matters:

i) All of the defendant's betting shops were fitted with a range of up to date security equipment, which was designed to deter criminals.

ii) The defendant's training manual highlighted the risk of robbery and recommended using the magnetic lock at opening and closing times.

iii) The defendant was instrumental in developing a code known as the Safebet Alliance, which defined good practice. The defendant complied with this code.

iv) The manager of the Walsgrave Road shop had completed a risk assessment checklist.

v) The Walsgrave Road shop was designated "low risk" because of its location.

40. The first of these points may be correct, but it is irrelevant to the issues. The claimant's complaint is that relevant equipment, namely the magnetic lock, was not used, not that the defendant had failed to provide it.
41. As to the second point, the training manual did indeed say that the magnetic lock should be used at opening and closing times. It was silent about the use of this equipment at other times.
42. As to the third point, the Safebet Alliance is an admirable document. On page 5 it states:

"Robbery

Risk of robbery or attempted robbery varies significantly by location. London LBOs experience more than half the total number of UK robberies. Some security measures may be costly to install and/or operate. Therefore in any given LBO it makes sense to implement security measures consistent with the level of risk faced by that individual shop. That level of risk can be determined by carrying out a systematic risk assessment, which is also covered in this document."

In this passage LBO is an abbreviation for "licensed betting office".

43. Unfortunately the defendant did not comply with this passage in the code, or at least there is no evidence of such compliance. The defendant has not produced any document which constitutes a "systematic risk assessment" in relation to the Walsgrave Road shop. It may possibly be, as Ms Foster speculates, that such a document exists but cannot be located. This speculation cannot, however, assist the defence case.
44. As to the fourth point, the checklist relied upon contains questions about all sorts of things. The only relevant question is number 36, which asks:

"Can all the Shop Teams explain 'Do all staff understand what to do in the event of a robbery?'"

In the right hand column Mrs Swift has recorded "1" against this question, which denotes the answer yes. With the best will in the world this tick box exercise cannot possibly constitute a risk assessment.

45. As to the fifth point, there was no satisfactory evidence that the vicinity of Walsgrave Road was low risk. See paragraph 56 below.
46. The judge found at paragraph 37 of his judgment that there was no proper risk assessment dealing with the risk of robbery at the Walsgrave Road shop or how that risk could be minimised. In my view the judge was entitled to so hold on the evidence which had been adduced.
47. The importance of undertaking risk assessments was a matter which the Court of Appeal addressed in Allison v London Underground Ltd [2008] EWCA Civ 71, [2008] ICR 719. In that case the Court of Appeal, reversing the county court judge, held London Underground Ltd liable for shoulder strain developed by one of its drivers. In relation to risk assessment Janet Smith LJ said this at paragraph 58:

"Judge Cowell recognised that there was a connection between risk assessment and adequacy of training but thought that, once he had decided that the training had been 'adequate in all the circumstances' he did not need to decide whether the risk assessment had been 'sufficient and suitable'. With respect to the judge, I think he put the cart before the horse. Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has lead directly to the injury."

Both Hooper LJ and Sir Anthony Clarke MR agreed with that judgment.

48. The trial judge held that the defendant's failure to undertake a proper risk assessment constituted both negligence and breach of statutory duty under regulation 3 of the 1999 Regulations. I agree with this conclusion and reject the defendant's first ground of appeal.
49. The mere fact that the defendant failed to carry out a proper risk assessment is not, on its own, sufficient to establish the claim. It forms, however, an important part of the background when one comes to consider the other alleged breaches.
50. If the defendant had carried out a proper risk assessment in relation to the Walsgrave Road shop, it probably would not have committed the alleged breaches of duty relating to the use of the magnetic lock. It is to these issues that I must now turn.
Part 6. Second and third grounds of appeal: policy for operating the magnetic lock
51. The defendant's training manual states:

"If your shop is fitted with an Electromagnetic Lock ensure all staff are familiar with the operation. Make sure that the ordinary door lock is engaged as well as the electromagnetic lock before opening and after closing."

52. The manual says what should happen at opening and closing times. It gives no guidance about when the magnetic lock should be used at other times. The defendant's case is that their "policy" was that this was left to the discretion of the manager.
53. The consequence of this so called policy was that the use of the magnetic lock depended upon who was in charge of the shop. When Mrs Gilder was in charge of the shop, the magnetic lock was always used after the hours of darkness. When Mrs Swift was in charge of the shop, the magnetic lock was only used when staff were opening the shop, closing the shop or handling money. Thus it can be seen that if Mrs Gilder had been on duty during the evening of 5^th November 2007, the robbery probably would not have happened. I cannot put this higher than "probably", because the poor lighting outside the front door made it difficult to see who was seeking entry.
54. Ms Foster argued that the magnetic lock was not intended to be used for the purpose of vetting people seeking entry. I do not accept that submission. The magnetic lock had a number of uses. One use was to keep the door locked at opening and closing times. Another use was to keep the door locked whilst vetting persons seeking entry. One of the managers did indeed use the magnetic lock for that purpose. Furthermore, Mrs Cheetham acknowledged that this was a proper use of the magnetic lock in the risk assessment which she carried out after the incident. She included the following paragraph in her report:

"A light to be fitted over the front door to help to identify callers after dark before disengaging the maglock. To be controlled both by switch and sensor."

55. In her witness statement Mrs Cheetham tried to retreat from this passage in her report. She asserted that the purpose of her recommendation was simply "to give staff further reassurance". The judge found Mrs Cheetham to be an untruthful witness. He robustly dismissed this assertion. He also robustly dismissed Mrs Cheetham's attempt to retreat from another section of her report concerning the poor quality of the lighting.
56. The Walsgrave Road shop was located in a parade of shops close to Coventry town centre (judgment paragraph 2). It was common ground that robberies had occurred to other betting shops in Coventry town centre. Indeed one had occurred only eleven days before this incident. The Walsgrave Road shop had suffered a snatch robbery when it was located two doors up the road, i.e. before October 2006 (judgment paragraph 9). The Walsgrave Road shop stayed open until 9.30 p.m. in the evenings. The evidence was that during the winter months not more than six to eight customers visited the shop after the hours of darkness. The street lighting outside was poor and there was no CCTV along that parade. The owner of a nearby off-licence had been campaigning for the installation of CCTV (judgment paragraphs 33 – 34). The claimant had previously complained about the quality of the lighting outside the betting shop, but to no avail (judgment paragraph 36).
57. On the basis of the evidence the judge reached the following conclusions:

i) The defendant laid down no policy and provided no guidance as to when the magnetic lock should be used (other than during opening and closing).

ii) The defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after the hours of darkness.

iii) The lighting outside the front door was inadequate. The defendant ought to have maintained proper lighting.

58. In my view the judge was entitled to reach those conclusions on the basis of the evidence before him, in particular the matters set out in paragraph 56 above. It is quite true that Mr Phillips, the defendant's expert, asserted in his report that the Walsgrave Road was in an area of low crime risk, but the judge rejected Mr Phillips' evidence. The judge took the view that, given the degree of risk and the fact that the magnetic lock was available, the duty to take reasonable care required that the magnetic lock be used after the hours of darkness. In my view, this court (which has not heard the oral evidence or even seen a transcript of it) is not entitled to overturn that decision.
59. It is quite true that the judge, having rejected the evidence of Mr Phillips, did not have any expert evidence from either party to assist him in determining what precautions a reasonably careful and prudent employer would take in the circumstances of this case. In my view the judge was able to decide that issue on the basis of the factual evidence. This was not a professional negligence action. This was a low value employers' liability case, in which the facts were straightforward. A judge is well able to determine liability in such cases without recourse to expert evidence. There has been a tendency in recent years for expert witnesses to colonise areas of litigation where their presence is not essential.
60. For the avoidance of doubt, I am not saying that magnetic locks should be operated at every betting shop. The material before the Court of Appeal does not enable this court to give any general guidance about security arrangements in betting shops and I do not do so. This judgment is simply concerned with what the judge was entitled to conclude concerning the Walsgrave Road shop in November 2007, having regard to the evidence upon which the defendant chose to rely. Since so few customers came during the evenings, it was hardly an inconvenience either to the staff or to the customers if the magnetic lock was operated after the hours of darkness.
61. Accordingly I would reject the defendant's second and third grounds of appeal. The fourth and fifth grounds of appeal can be dealt with more briefly.
Part 7. The fourth and fifth grounds of appeal: expert evidence and standard of care
62. Ms Foster submits that the judge erred in rejecting Mr Phillips' expert evidence. She points out that he is an experienced security expert. He has a distinguished CV and was formerly a senior police officer.
63. It is not easy to persuade an appellate court to reject the trial judge's assessment of the witnesses. The judge has seen the witnesses giving evidence and being cross-examined. It is doubly difficult for Ms Foster to achieve this feat in the present case, since no transcript of the oral evidence is available. We do not know what was put to Mr Phillips in cross-examination or what answers he gave. When Tomlinson LJ probed this aspect during argument, the recollections of the lawyers on both sides were hazy. That is not surprising, since the trial took place a year ago.
64. In those circumstances the Court of Appeal cannot go behind the trial judge's assessment of Mr Phillips. The only comment which I would make is that, in the light of Mr Phillips' written report, I do not find the judge's assessment surprising. In the circumstances the defendant's fourth ground of appeal must be rejected.
65. As to the defendant's fifth ground of appeal, the judge correctly directed himself as to the standard of care by reference to the familiar authorities, starting with Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776. He noted that the need for precautions at the Walsgrave Road shop was obvious. He also noted that the precautions which he identified were simple and easy to take. The judge concluded that the failure to take those precautions was a breach of the defendant's common law duty of care: see paragraph 47 of his judgment.
66. The judge held that the defendant was in breach of statutory duty under regulation 3 of the 1999 Regulations in failing to carry out a proper risk assessment. Although there is some ambiguity in the judgment, the judge also at least implicitly found that the defendant's failure to provide adequate lighting was a breach of regulation 8 of the 1992 Regulations.
67. In my view the judge did not set too high a standard of care. He applied the correct standard of care and held that the defendant fell below that standard. This decision cannot be impugned on appeal. Accordingly I would dismiss the fifth ground of appeal.
Part 8. Conclusion
68. For the reasons set out in Parts 3 to 7 above, I would uphold the judge's decision and dismiss all the defendant's grounds of appeal. My Lords, however, both take a different view. In the result, therefore, for the reasons which they explain this appeal will be allowed.
69. Before parting with this case I wish to express my concern about the manner in which the defendant has conducted its defence. The defence of any personal injury case is a serious task, to be undertaken in a fair and responsible manner. It is inappropriate to serve witness statements which refute every allegation, whether right or wrong. It is also inappropriate for an expert witness to provide a partisan report which backs up his client at every turn.
70. For the avoidance of doubt, I make no criticism of Ms Foster's oral advocacy. Ms Foster was entirely fair and helpful in her submissions to this court, as I am sure she was in the court below. As my Lords rightly say, the criticisms of the claimant's conduct during the robbery were not pursued at trial. The fact remains, however, that the vast majority of personal injury actions settle before trial on the basis of the written evidence served. Therefore the written evidence matters, even if a party knows that it will abandon certain points in the event of a trial.
71. As explained in paragraph 68 above, this appeal is allowed and the claimant's claim is dismissed. The defendant will recover costs of the action, except that it will be deprived of 20% of its costs up to and including trial in order to reflect its unsatisfactory conduct of the litigation.

Lord Justice Tomlinson:


 


72. I am grateful to my Lord for setting out with such clarity the issues which arise for decision on this appeal.
73. I respectfully agree with much of what my Lord has said about the Defendant's conduct of the litigation, although it should be borne in mind that Miss Foster made it very clear at trial that no criticism was made of the Claimant's conduct in the face of the armed and balaclava-helmeted robbers. The Defendant was also not assisted by its inability to produce a documented risk assessment of these premises, although it should again be borne in mind that this is far more likely to be as a result of the Defendant adopting a new database in 2006/7 than to be indicative that no risk assessment was ever carried out. I do not for my part consider that the judge was justified in finding that there had been no proper risk assessment dealing with the risk of robbery at the premises and how that risk could be avoided or minimised. It is to my mind not credible that no such risk assessment was conducted by an organisation such as the Defendant. The more likely explanation is that the Defendant is now unable to locate the relevant documentation, electronic or otherwise, or that it has made insufficient effort so to do in the context of a low value claim.
74. What is to my mind more significant than the absence of any record of a risk assessment is the judge's failure to engage with the evidence to the effect that the Walsgrave Road shop had been designated as, or should in any event be regarded as, at low risk of robbery having regard to its location. The shop was situated in a parade of shops just off a busy roundabout with a video shop, an off-licence and a KFC outlet adjacent and a pub opposite. It was in what was described to us without contradiction as a "nice area of Coventry". There had been no previous robbery at this location. Somewhat confusingly the judge finds at paragraph 9 of his judgment that "This particular shop had been the victim of a snatch robbery before". However, as the judge goes on to find, "That robbery had not occurred in its present location. It had occurred in its previous location. In addition, that robbery did not involve the use of a weapon." Perhaps it would have been more accurate to refer to there having been a previous snatch robbery at this branch. However that may be, the evidence before the judge did not support any suggestion that the Walsgrave Road shop should have been identified as being at high or enhanced risk of robbery. On the contrary, the evidence of the Defendant's security expert, Mr Phillips, was to the effect that "The shop is situated within an area with a low crime rate, had no known specific threat and no history of violent incidents . . .". Whilst the judge was very critical of Mr Phillips, this factual evidence was not so far as I am aware challenged and there was no basis upon which the judge could properly have rejected it. The judge said that he found Mr Phillips' evidence entirely unhelpful, but he could not properly fail to have regard to his unchallenged evidence of fact concerning the crime rate and history of crime in this area and thus as to the objectively assessed threat to premises such as this in this area.
75. The judge's finding that there was no policy in force as to the use of the magnetic lock other than during opening and closing hours is in my view largely a matter of semantics. At paragraph 26 of his judgment the judge appears to accept that "The decision whether to use it lay entirely with the manager." That appears to accord with the evidence of both Mrs Swift and Miss Gilder that it was at the discretion of the manager of the shop whether to use the magnetic lock apart from its use at opening and closing as mandated by the Defendant in its Robbery Prevention Training Package at Part 3. It is to be noted that the instruction there given is prefaced by the words "if your shop is fitted with an Electromagnetic Lock", a point to the significance of which I shall return. It may thus be a moot point whether the policy was to leave the matter to the discretion of the manager, or whether in the absence of any policy as to the use of the magnetic lock outside opening and closing, the matter simply fell to be dealt with according to the discretion of the manager for the time being, but the result is the same. It is not ultimately determinative of any issue which the judge had to decide. The evidence also revealed an inconsistency of approach between managers as to the use of the magnetic lock apart from when opening and closing the premises.
76. The judge made no express finding that the magnetic lock is intended to be a device facilitating visual vetting of customers before entry. Obviously it can be used in that way. The judge did not engage with the points that a determined robber could wait until the door was opened from within by a customer leaving the premises and that robbers can "tailgate" customers entering premises. Although those points are contained within the much criticised evidence of Mr Phillips, they were not controverted and they are obvious. The documentary evidence, such as it was, tends to support the notion that the primary purpose of a magnetic lock is perceived in the industry as being to protect staff when they are at their most vulnerable, which is when opening and closing the premises. In order to carry out that operation at least one member of staff must leave the more secure area behind the counters in order to disengage the ordinary door lock. The magnetic lock gives protection at this time when the ordinary door lock is disengaged. Hence the instruction in the Robbery Prevention Training Package to ensure that before opening and after closing the ordinary door lock is engaged as well as the magnetic lock. An example risk assessment appended to the Safebet Alliance document at Appendix 3 refers to the magnetic lock being used to control access at high risk times, not at all times, again consistent with the magnetic lock not being seen as a routine customer vetting system. Against that, I of course accept that it could be said that after dark is a high risk time. At page 21 of the document and following there appear some "National Standards – Security and Safety Measures". At page 22 there appears the following:-

"External lighting is important to support external CCTV (where installed) and clear vision to aid the use of Maglocks etc. Where possible external lighting also assists to identify potential risks during hours of darkness."

That again is consistent with the magnetic lock being used as a vetting device. So also was Mrs Cheetham's report after the incident, as referred to by my Lord at paragraph 54 above. However I would not myself put too much weight on this recommendation made after the incident and with the benefit of hindsight when assessing what duty lay on the Defendant before the incident had occurred.

77. The essence of the judge's conclusion adverse to the Defendant is that the Defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after dark. This is a conclusion of law based by the judge upon his findings of fact. It is a conclusion as to the ambit of the duty of care owed by the Defendant to the Claimant. In my view the facts found by the judge did not justify this conclusion. He reached the conclusion which he did very largely because he could discern "no valid reason why the magnetic lock could not have been used after the hours of darkness" – judgment paragraph 44 and see also paragraph 45 to similar effect. That approach however begs the question whether the Defendant's duty extended to having a magnetic lock installed at these premises in the first place, which is perhaps why Mr Thomas Rochford, for the Claimant, submitted in his skeleton argument for use in this appeal that:-

"The issue is not whether a magnetic lock is a necessary part of a sufficient (i.e. non negligent) security system. The issue is whether, when there is a magnetic lock, it is negligent not to secure or encourage its use by having a policy as to its use and by having lighting that is such as to render it practicable to use it after dark."

78. I agree that that is the issue. However in my view it cannot ordinarily be negligent to fail to ensure that a safety or security device is used if it would not have been negligent not to have installed the device in the first place. It would ordinarily be negligent of the Master of a modern ocean going trading vessel not to use his radar as an aid to navigation, but by the same token modern standards positively require that an ocean going trading vessel be fitted with radar. The only evidence which the judge had about industry standards in this regard was that the Defendant, where possible, fits magnetic locks to its premises but that because of design and layout this is not always possible. This limitation affected about 50 of its shops within an estate of 2,200 premises. The evidence of Mr Phillips, again not controverted, was that so far as concerned other companies within the industry, because of financial constraints and "policy" magnetic locks were installed in about 40-50% of betting shops, and their installation was triggered by a risk of repeat robbery offences.
79. There was thus no evidence before the judge on the basis of which he could have concluded that the Defendant would have been negligent in not installing a magnetic lock at these premises. As my Lord has pointed out at paragraph 60 above, the material before this court does not enable it to come to any general conclusion about security arrangements in betting shops, and my Lord's conclusion is not that magnetic locks should, if fitted, be used at all betting shops during the hours of darkness. I note the evidence that during the winter months only six to eight customers visited this shop after dark and I agree that the judge was provided with no sensible reason why the magnetic lock should not have been used during the hours of darkness. Where however I respectfully part company with both the judge and my Lord is in their conclusion that the Defendant ought to have instructed that at this particular shop staff should operate the magnetic lock after the hours of darkness. The judge recognised that the fact that it was possible and not impracticable to use the magnetic lock after the hours of darkness does not necessarily mean that the Defendant "had acted unreasonably in not using it" – by which he meant I think in not putting in place a policy requiring its use. What was determinative for the judge was that he was given no reason why the magnetic lock was not used after the hours of darkness. I do not for my part think that this is a sufficient basis upon which to impose a duty. The ambit of the duty must in large be part informed by the perception of the nature and extent of the risk and by the standards of the industry. As to the former, evidence before the judge tended to show that no particular or heightened risk was perceived to attach to these premises which were not in an area of enhanced risk nor had suffered previous attack. As to the latter, the standards of the industry will not of course be determinative, particularly where they are demonstrably lax. But the judge was offered by the Claimant no evidence as to the standards adopted by a reasonably prudent employer in the industry. The judge decided that he could place no reliance on the Defendant's expert opinion evidence in that regard and, in consequence, in my judgment fell into the error of substituting his own view as to the standards which ought to prevail.
80. In my judgment the evidence before the judge did not justify his conclusion. The salient features of the evidence are, in my view:-

1) A magnetic lock is not perceived in the industry as primarily a vetting device, although obviously it can be used for that purpose;

2) It is not shown that the installation of a magnetic lock at a betting shop is perceived within the industry as an essential security measure. There are many betting shops which have no magnetic lock and on the evidence they could even amount to a majority of such premises;

3) It is not shown that the Defendant's security procedures fell short of those standard in the industry – on the contrary, the evidence suggests that insofar as concerns the safety and security equipment installed at its premises, the Defendant adopted a more exacting standard than its competitors;

4) There had been no previous incident of robbery at this shop which was located in an area not perceived as being at enhanced risk.

81. In the light of this evidence, I do not consider that the judge was justified in concluding that a reasonably prudent employer would have imposed a policy of using the magnetic lock at these premises in the hours of darkness. Put in another way, I am not satisfied that it was a breach of duty by the Defendant to leave the use of the magnetic lock after dark at these premises to the discretion of the manager.
82. I would allow the appeal in the terms proposed by my Lord at paragraph 71 above.

Lord Justice Floyd:

83. I am grateful to Jackson LJ for setting out the background, the facts which gave rise to the injury and the issues which fall for decision in the present appeal. Like Tomlinson LJ, I agree with what Jackson LJ has said about the criticism of the claimant's conduct in the face of what must have been a terrifying experience. Nevertheless, it is clear that no reliance was or could have been placed on this criticism. Whilst I deprecate the fact that these criticisms were made and allowed to be included in the witness statements and expert report, they have, in the end, no bearing on the matters which it is necessary to decide in this appeal.

The risk assessment ground of appeal

84. I have found it of assistance to remind myself of the significance of risk assessments in cases of this kind. Allison v London Underground Limited [2008] EWCA Civ 71; [2008] ICR 719 involved an allegation that the employer had failed to provided adequate training for its drivers in the use of a new design of traction brake controller or "dead man's handle". The trial judge had held that the training had been adequate, because it dealt with the risks which the employer had actually foreseen (see [20]). Although the employer had conducted a risk assessment, the judge had not dealt directly with whether the assessment had been sufficient and suitable. He had also failed to deal with a suggestion that the employer should have sought expert ergonomic advice as to the risks associated with the use of the new handle.
85. The issue facing the court was what the employer knew or ought to have known about the risks associated with the new design of handle. At [57] Smith LJ said this:

"How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable."

86. Thus, by asking what a suitable and sufficient risk assessment would reveal one can arrive at a conclusion about what steps should be taken to reduce those risks. But as Smith LJ went on to point out in that case at [59]:

"… it is quite possible to decide the issue of what the employer ought to have known about the risks without reference to the [employer's] risk assessment."

87. That is what the court proceeded to do in that case, finding that the employer appreciated that there was a risk of strain injury and ought to have taken advice from an expert who would have advised the need for training employees as to how to hold the handle in order to avoid injury (see [65]). For another use of risk assessment regulations to identify what an employer ought to have foreseen and done, see per Lord Hope in Robb v Salamis [2006] UKHL 56.
88. In the present case I simply do not follow how the failure to produce evidence of a risk assessment, on its own, advances the claimant's case. The next question has to be: what would such an assessment have shown? The judge made no findings on this subject. At [38] of his judgment, the judge records a submission made by the defendants that the breach involved in relation to preparing a risk assessment would not itself found a claim in damages against the defendant. In that and the following paragraph, the judge described as uncontroversial the proposition that the law imposed a duty on the defendant to provide a safe and secure work environment, judged by reference to what is to be expected of a reasonably prudent employer. At [42] he "leav[es] aside for the present moment the Defendant's failure to carry out the risk assessment of the shop" and makes a finding about the policy in relation to the magnetic lock. At [46] he says this:

"A proper risk assessment would not only have dealt with the vulnerability of the Walsgrave Road shop to the type of criminal activity that occurred on 5 November 2007 but would also have dealt with other factors which would make it possible to assess the extent to which the use of a magnetic lock might have avoided or minimised the risk of such activity during opening hours and how it might have been deployed to achieve that outcome."

89. These observations are no doubt true, but in the absence of any finding about what a formal risk assessment would have shown about any of these matters, the absence of the risk assessment does not help the claimant. Merely to say that a formal risk assessment would have addressed the vulnerability of the shop is to beg the question of what the vulnerability of the shop actually was. It is trite to say that all shops are vulnerable to robbery. The absence of the risk assessment cannot constitute positive evidence about the nature or extent of the risk. The passage I have quoted from Smith LJ's judgment in Allison v London Underground makes it clear that the court needs to consider what a risk assessment would have found, not what topics it would have addressed or what matters it would have been, in consequence, possible to assess.
90. Thus I agree with Jackson LJ when he says at [49] above that the failure to carry out a proper risk assessment is not, on its own, sufficient to establish this claim. However, I do not, for myself, see how it can materially assist the claim.
91. This ground of appeal seeks, understandably, to reverse the judge's finding of fact that the defendants did not carry out a proper risk assessment. However it does not seem to me that success on this ground of appeal would result in a reversal of the order made by the judge, or have any bearing on the other grounds of appeal. The case, in my judgment, must in such circumstances depend entirely on the grounds of appeal concerning the policy for operating the magnetic lock.

The magnetic lock policy ground of appeal

92. I agree with Jackson LJ at [60] and Tomlinson LJ at [79] that the material before this court does not justify a finding that every betting shop should operate magnetic locks to restrict entry. As Tomlinson LJ has explained, there was no industry standard to that effect, or even a general perception that the purpose of magnetic locks was to act as a vetting procedure. The question before the judge and this court is whether the evidence justified a finding that the defendants ought to have put in place a policy of operating a magnetic lock as a vetting procedure in the hours of darkness at the Walsgrave Road shop.
93. Operators of retail premises are in the business of allowing customers into their shops rather than restricting them from entering. Nevertheless, they must take reasonable care to provide a safe working environment for their employees. As Swanwick J said in Stokes v Guest, Keen & Nettlefold [1968] 1 WLR 1776 at 1783, in a passage which carries the authority of the Lord Mance in the Supreme Court in Baker v Quantum Group [2011] UKSC 17 at [9], the employer:

"must weigh up the risks in terms of a likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

94. The judge was plainly strongly influenced by the fact that a magnetic lock had been installed, and by what he saw as the relative ease with which a policy of insisting on its operation in the hours of darkness could have been implemented. Thus at [45] he held that:

"… I have heard no - or no valid - reasons from any of the witnesses relied upon by the Defendant about why this simple, yet clearly very effective device to control entry to the premises was not used after the hours of darkness."

95. However, this is, in my judgment, to start the analysis at the wrong point. The defendant's practice of installing the lock at premises where it was possible to do so was to provide additional security at times of perceived additional risk, namely during opening and closing. These are times when the employees are away from the secure area and the shop is either not yet fully open, or closed for business. For that purpose it is both a highly effective measure and involves no inconvenience to anyone. It is quite another matter to conclude that there should have been a policy to operate it at other times, in particular at times when the shop is open, and to operate it for another purpose, namely for the purpose of vetting customers on entry.
96. The defendants were of course aware, as are all retail operators, that robbery is a possibility. It was also the case that the installation of the magnetic lock meant that it was possible to insist on its operation. But if these twin considerations were adequate to impose a duty to ensure the magnetic lock is operated, then there would be no basis for saying that it should only be operated in the hours of darkness. Robbers do not confine their activities to those hours. These considerations show that a risk of robbery coupled with the ability to operate a magnetic lock is not a sufficient basis for saying that it should be operated.
97. If one accepts, as I believe one must, that it is not necessary for every betting shop to install and use a magnetic lock when the shop is open in the hours of darkness, it is necessary to identify with precision what it was about the Walsgrave Road betting shop which made it prudent to do so. As to that, there was no evidence before the judge that the Walsgrave Road shop was located in an area of enhanced risk. The judge excluded the evidence of Mr Phillips as to the crime rate in the area and the absence of known specific threats or any history of violence. But that still left him without any evidence from which it could be inferred that these premises faced any particular or enhanced threat. There was therefore no adequate basis for the imposition of the duty imposed by the judge in the case of this particular shop.
98. Accordingly, on this ground, I too would allow the appeal. It is not therefore necessary to express a view on the remaining grounds. I also agree with the order for costs which Jackson LJ has proposed in [71] above.