In Nicholls v Ladbrokes  EWCA Civ 1963, a majority decision handed down on 11 July, Ladbrokes overturned an award of damages to Kerry Nicholls who had suffered psychiatric injury following a robbery at a betting shop in Walsall.
The original award rested on the decision of the trial judge that it was negligent of Ladbrokes not to have had in place a policy requiring the door to the shop to be kept shut with a magnetic lock during the hours of darkness. The shop in question had a magnetic lock but its use was inconsistent; one manager routinely used it at night while another did not.
The trial judge agreed with the case that the lock should have been used and Jackson LJ, giving the leading judgment in the Court of Appeal agreed and certainly felt that it was a decision the Judge was entitled to reach and so the appeal court should not interfere.
However, Tomlinson LJ and Floyd LJ disagreed. They, like Jackson LJ, acknowledged that there was no evidence that the magnetic locks are required in betting shops as a matter of course. That being so, it could not be said that failing to insist on an installed lock being used could be negligent.
That logic seems unassailable. If it is not negligent not to have the lock at all, it can hardly be negligent to make one available and leave it to the discretion of local management about when to use it. If there was something special about the shop which meant the lock should be used a different decision might be reached but there was no such evidence in this case.
The case is also a useful reminder of the limited conclusions to be drawn from a failure to carry out a risk assessment. These may be mandatory but no claim can lie from a failure to comply by itself; it is necessary to go further.
Where a risk assessment has not been done, liability can only follow if it be shown what the risk assessment would have found, what action should have been taken in light of those findings and, of course, that the cause of the injury would have been avoided by that action.
The evidence here showed that a proper risk assessment had not been done and that, if it had been, the use of the magnetic locks would have been considered. That was insufficient though. It was necessary to show what the findings would have been before it was possible to infer that, for example, the assessment would have led to a policy being implemented which would have prevented the robbery.