Scenario: medium size factory employing 100+ people, hazardous environment so no smoking on site

One of my clients reported these two incidents totall y independent recently:

Employee goes off site onto public land to smoke a cigarette. Large tree in area, employee trips over exposed tree roots and bruises wrist - deemed non work-related case, outside control of company where the individual chooses to smoke during free time 

Second employee decides to go and have a quick word about work with a colleague who is standing in the same off-site "smoking area", after her conversation is over, she partakes of her vape and then as she turns to talk to another colleague, she trips over one of the exposed tree roots (one of many 10-15 that are 2mm to ~30mm in height) and sustained a hairline fracture to ankle - RIDDOR case?!? 

Can she sue the employer? 

Edited by user 05 September 2023 13:08:12(UTC)  | Reason: added informaiton as per enquiry #3

She can sue the employer as this would be under common law - whether there is merit in doing so and if there would be an award in her favour is an entirely different question and in the hands of your clients insurers.

Originally Posted by: HSSnail

1st incident i agree - not work related so not RIDDOR.

Second case - what was the conversation about? Was it work matter? Did the person know they should not be going into the "smoke area" for such a conversation? So bit more information needed. I think this may also influence any chance of a civil claim.

Already said it was about a work matter.

Do employees have permission to leave their job to smoke or vape?

"Public Land" must be someone responsible there may be a claim there but trees can't be sued as far as I know ha ha

I think a mobile phone could have been better for asking the questions.

The second is clearly more complicated. Were they talking in a professional capacity? NO Is this common practice YES (common practice to have a brief chat when having a smoke / vape) and is it a widely accepted practice? YES Has the business designated this area for smoking NO or is it just "where employees go? YES - although some will return to their cars to smoke / vape

There will probably be more factors to consider but these are the first ones that come to mind for me. If the answer to 1 or more of these questions is yes then an argument could be made for it being a work related accident

Hi Evans

My take on thisL

1. First incident "not in the course of employment" - ergo would not have been RIDDOR reportable even if the injury had met one of the thresholds.

Second incident - probably "in the course of their employment".but subject to argument that the work element might have finished and now, effectively in "own time" - or as one judgment in the case law says "on a frolic of their own".

Now many of those who might agree that the victim was in the "course of their employment" would go on to follow the HSE guidance on RIDDOR and conclude that it was NOT reportable despite meeting a RIDDOR injury threshold - broken bone in foot other than in a toe.

However, based on the actual wording of the Regulations rather than the HSE guidance which has always seemed designed to discourage reporting of reportable accidents that are not going to be of any interest to the HSE in terms of follow up - rather than the primary purpose of RIDDOER - to provide intelligence about numbers of accidents and their immediate causes.....in my book reportable.

2. Of course the victim can sue, but who?

Employer has duty of care but this is dependent on how much control they had over the condition of the premises where the accident happened and if off site, probably none, and likely that any case against the employer would fall IF put to the challenge and not quickly settled out of Court.

Now if the tree is an ent [cf Lord of the Rings] with attitude and lifts its roots to exacerbate the tripping risk then possibly a case against the tree but there is no point in suing somebody with no means to pay compensation, unless doing only for the verdict and not the pay out.

If the tree is on land owned by somebody other than the employer [or even if the land IS owned by the employer] we are into Occupier's Liability with slightly different rules in e.g. Scotland than in e.g. England & Wales.

However there were a few judgments in the early 20th Century which established that in general there is no duty under Occupier's Liability to protect against injury involving a natural hazard that is obvious. A case involving East of Scotland Water Authority much later confirmed that this principle applied also to artifical structures posing very similar risks to natural features of the environment - so the drowning risk in an above ground reservoir v any lake.

All these judgments then being supported in the 21st Century in Tomlinson v Congleton Borough Council but with the caveat that the exception from liability might not apply if there was something UNUSUAL such as an adverse camber on a path.

Various guidance on all this, e.g. from RoSPA, Visitor Safety in the Countryside Group and Environment Agency.