McGinnes v Endeva Service Limited - Court of Session, Lord
Emslie, 9th March 2006
This case is perhaps best summed up by the old advertising
slogan "Should have gone to Radio Rentals". Mr McGinnes
had been employed by Radio Rentals as a field service engineer
repairing televisions, videos and other household appliances for
some 28 years. In 2001, Radio Rentals merged with Granada to form a
new firm, Endeva Service Limited, the Defenders in this case. The
Pursuer continued employment with the new company based at the
Coatbridge depot and working primarily in the east side of Glasgow.
In June 2003 he was allocated a job to repair a television at a
house in the Easterhouse area. He completed the job at around 10am
and was just about to open the backdoor to his van which was parked
in the street when he was set upon and seriously injured by two men
armed with knives.
Mr McGinnes raised a claim at common law against his employers
on the basis that they had failed to provide him with a safe system
of work. He said that the area where the attack had taken place was
known to be dangerous and suggested that his employers ought to
have a system whereby two men were allocated to jobs in such areas.
It was said that historically service engineers had always been
able to request the presence of a second man if they felt it
necessary and that there had, during the Radio Rentals era, been a
system whereby certain postcode areas had been identified as
dangerous and a second man was automatically allocated to all jobs
which came up within those areas. Mr McGinnes claimed that the new
company had adopted the postcode system for a while but cutbacks in
a number of service engineers meant it was no longer operated and
that requests for assistance from individual service engineers were
not readily granted.
Colin McEachran QC, for Mr McGinnes submitted that the area
where the attack occurred would have qualified for double manning
under the previous postcode system and that the Company should be
liable unless they could show the arrangements in place at the time
of the accident were sufficient to meet their duty to take
reasonable care for the Pursuer's safety.
Lord Emslie was not persuaded and found that Mr McGinnes had not
proved his case. The judge made it clear that in his view liability
depended upon the circumstances in existence at the time of the
assault and that it was up to Mr McGinnes to prove that those
arrangements were inadequate. Lord Emslie suggested that the
Defenders' duty of care in particular circumstances should be
identified by considering (1) the degree of foreseeability of the
harm complained of; (2) the relative ease or difficulty of taking
effective precautionary measures; and (3) where the failure alleged
against the Defenders was one of omission, the existence of any
other relevant practice adopted by other employers in like
circumstances.
In relation to the first question Lord Emslie found that the
Defenders and their predecessors made over a million previous calls
of similar nature without any recorded incidents of violence
against employees. The judge noted that the Pursuer himself
accepted that he had been working in and around the area in
question for 28 years and had never experienced anything similar.
Lord Emslie also pointed out that statistical and expert evidence
led at the Proof suggested that there were a number of other areas
in Glasgow with far higher recorded incidents of serious assault
and that on balance Easterhouse was not exceptional.
On the second question of precautionary measures, Lord Emslie
found on the evidence that the Defenders had a system in place
whereby the individual engineer could request assistance if he
thought it necessary. The judge took the view that Mr McGinnes was
in the best position to decide whether or not assistance was
required given his experience. The fact that Mr McGinnes made no
request for assistance suggested that he did not think it was
necessary.
On the third question of relevant practices adopted by other
employers, Lord Emslie was not convinced on the evidence he had
heard that even under the old Radio Rentals postcode system this
job would have been automatically allocated for double manning. He
pointed out that in any event no evidence was led to suggest that
any other employers used a double manning system in the area.
The judge went on to say that even if he had found that the
Defenders were in breach of their duty of care to the Pursuer in
not providing a double manning system, Mr McGinnes' claim would
still have failed. On the evidence Lord Emslie indicated that he
was not persuaded that the presence of the second man would have
prevented the assault.
In these days of the six pack regulations and strict liability
we thought this case was worth reporting as a reminder of the
difficulties that a Pursuer still faces with proving a case at
common law.