Approach to assessment of real risk of injury in manual handling claim should be practical and common sense

Lawyers advising clients in manual handling claims where it is alleged that there was a failure to carry out a detailed risk assessment should consider whether the operation constitutes a ‘real risk’ of injury, and not assume that there must have been a risk, just because it resulted in injury. Cindy Tsang, partner at Kennedys, examines the case of Stewart (now White) v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 2091, [2017] All ER (D) 81 (Dec)

What is the significance of this case? Why is it important for practitioners?

The appellant’s case was put on the basis that the lifting of the oxygen box was a sufficiently hazardous operation to require a risk assessment under the Manual Handling Operations Regulations 1992, SI 1992/2793 (MHOR 1992). The trial judge and the appeal judges had to determine whether the task in question involved a real risk of injury, both under MHOR 1992 and at common law.

The case reinforces Hale’s LJ (as she then was) judgment in Koonjul v Thameslink Healthcare Services [2000] EWCA Civ 3020, namely that the employer’s duty under MHOR 1992, reg 4 only arises where there is a ‘real risk’ of injury ‘…there must be a real risk, a foreseeable possibility of injury, certainly nothing approaching a probability. I am also prepared to accept that in making an assessment of whether there is such a risk of injury the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees’ safety which they might not otherwise have. However, in making such assessments there has to be an element of realism. According to Appendix 1 at para [3] of the Health and Safety Executive guidance on MHOR 1992, a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort. It then goes on to give numerical guidelines for the purpose of providing an initial filter which can help to identify those manual handling operations deserving more detailed examination. It also seems clear that what does involve the risk of injury must be context-based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved.’

The case is also an important reminder to practitioners that the burden of proof is on the claimant to establish the task involved a real risk of injury. One of the grounds of appeal was that the trial judge had misdirected himself when holding that the claimant bore the burden of showing that a risk assessment was required and ought instead to have found that the defendant bore, and had failed to discharge, the burden of showing that an assessment was not required.

Given the nature, design and weight of the oxygen box and the absence of any complaints, suggestion or evidence that it had posed any difficulties for midwives of any age, the vast majority of whom were women, over a number of years of regular use, the trial judge was not satisfied, on the balance of probabilities, that any risk assessment was required. The claimant had been trained in how properly to lift items, and in cross-examination, accepted she could not think of any further training which would have helped. She accepted she had to make her own assessment of what was to be lifted, however decided to scoop up the oxygen box (despite it being fitted with a handle as well as a strap) with both arms underneath it, with her knees bent and her back straight. She agreed it was obvious that the handle was there to lift it by.

The appeal judges held that the trial judge’s conclusion that there was no real risk of injury was a factual conclusion which he was entitled to reach on the evidence, and with which the Court of Appeal should not interfere.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

The judgment is a useful reminder that the first stage in manual handling claims is always to consider whether the manual handling operation presents a ‘real risk’ of injury, the burden of proof of which is on the claimant. Further, that the various duties imposed under MHOR 1992 only come into play if the manual handling operation gives rise to a real risk of injury.

In establishing whether a ‘real risk’ of injury existed, the appeal judges endorsed the trial judge’s practical and common-sense interpretation of the lifting and lowering risk filter in Appendix 3 of the HSE guidelines, where the oxygen box, which weighed 7.5–8kg, fell between the 7–13kg zones on the filter. Given the nature, design and weight of the oxygen box and the absence of any complaints or suggestion of any difficulties with the lifting of it over a number of years of regular use, the trial judge accepted the defendant’s view that it was safe if properly handled and did not require a detailed assessment.

The courts’ approach to the HSE guidelines is a helpful reminder that the weight limits or zones should not be considered as mandatory statutory categories for safe lifting, but that a common-sense approach should be taken with regard to the circumstances.

What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?

Lawyers advising clients in manual handling claims where it is alleged that there was a failure to carry out a detailed risk assessment should consider whether the operation constitutes a ‘real risk’ of injury, and not assume that there must have been a risk, just because it resulted in injury. In Stewart, the trial judge, having found there was no breach of duty, did go on to find that there was a reason that the claimant had suffered a back injury while performing the task, notwithstanding it was reasonably safe. This was that she had a pre-existing degenerative back condition which was unknown to both parties.

Clients should be reminded that the HSE guidelines are not designed to be interpreted strictly, and if the history and circumstances of the operation indicate that no risk exists, then an operation that fell within an intermediate zone between boundaries will not automatically constitute a need for a detailed assessment.

The risks of a court case should always be in the forefront of the lawyer and client’s mind. This judgment reinforces the position that if, and only if, the task involved a real risk of injury, does the obligation under MHOR 1992, reg 4(1)(b)(i) arise to make a suitable and sufficient assessment of the task, having regard to the factors and questions specified in MHOR 1992, Sch 1. Clients are to be reminded of the numerous claims of this nature having failed at the first hurdle—including Rozario v The Post Office [1996] Lexis Citation 5242 (repeatedly lifting boxes weighing 10.26kg from 4-5 inches—no foreseeable risk of injury), Koonjul v Thameslink Health Services (bending to manoeuvre a low bed did not involve a real risk), Alsop v Sheffield County Council [2002] EWCA 29, [2002] All ER (D) 45 (Mar) (no real risk arising from moving wheelie bins up and down a ramp), and Brazier v Fairway Ltd [2005] EWCA Civ 1469, [2005] All ER (D) 76 (Nov) (no real risk of injury from lifting a wooden pallet from a stack).

How does this case fit in with other developments in this area of the law? Do you have any predictions for future developments in this area?

By reason of section 69 of the Enterprise and Regulatory Reform Act 2013 and the consequent amendment to section 47 of the Health and Safety at Work Act 1974, no civil liability attaches to breach of MHOR 1992 for accidents occurring from 1 October 2013. However, MHOR 1992 continues to impose a criminal liability and to inform the content of the common law.

This change of regime emphasises a more reasonable and proportionate approach to the handling of health and safety requirements.

In this case, the courts’ endorsement of a practical and common-sense approach to the application of MHOR, reg 4(1)(b)(i), and the guidance in Appendix 3 of the HSE guidelines, is a good example of this reasonable and proportionate approach, which is likely to be a common theme for future workplace claims.

Interviewed by Evelyn Reid. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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