Handling Loads
Cases
Dunleavy v. Glen Abbey Ltd
[1992] ILRM 1
The plaintiff was employed by the defendant as a storekeeper and clerk. On the day in question he had to take in and store nine small cartons each weighing between 35 and 42 kilos. The cartons arrived in a van stored on a pallet. The plaintiff could not use the factory’s fork-lift truck because it was inoperative and began to lift the cartons by hand from the van. In doing so he suffered an injury to his back. The plaintiff’s case was that the defendant had a statutory obligation under the Factories Act, 1955, (Manual Labour) (Maximum Weights and Transport) Regulations, 1972, both to give him adequate training in the various techniques of lifting loads and to make a fork-lift truck available and claimed that if he had either received training or if the fork-lift truck had been available he would not have suffered the injury which he did. The 1972 regulations apply to persons employed in any process which includes the manual transport of loads and the defendant submitted that what the plaintiff was doing when he met with his injury was not a process and that, in any event, the failure to provide training was not a causative factor of the accident.
Held by Barron J. in finding that the defendant had been in breach of its statutory duty towards the plaintiff and in awarding the plaintiff £15,010 damages, 1, the word ‘process’ in the 1972 regulations meant any operation or service of operations being an activity of more than a minimal duration. Nursev. Morganite Crucible Ltd. [1989] A.C. 692 followed. 2. What the plaintiff was doing when he met with his injury was a process within the meaning of the regulations. It being common case that the plaintiff received no training in the methods of lifting, carrying, putting down, unloading and stacking different types of loads and that the defendant was aware that the fork lift truck was inoperative, it followed that the defendant was in breach of its statutory duties both as to training and as to the provision of suitable mechanical devices. 3. This breach of duty was a causative factor of the accident. If the plaintiff had been given the proper advice, or if the fork lift truck had been available, it was clear that the plaintiff would not have set about his particular task in the way he did.
Gravatom Engineering Systems Ltd v Parr
[2007] EWCA Civ 967
Lord Justice Keene :
This case concerns a claim by an employee for damages for injury suffered during the course of his employment by the defendant. It is an appeal by the defendant employer from the judgment of Mr Recorder Fraser at Southampton County Court, delivered on 4 December 2006 after a three day trial.
On 24 July 2002 the claimant, Mr Parr, and some colleagues were involved in moving four very large machines from a delivery bay, where they had just been delivered, to positions inside the factory where the claimant worked as a handyman/labourer. Three of the machines were very heavy, weighing in one instance 2,800 kilograms and the other two each 3,100 kilograms, i.e., a little under or a little over 3 imperial tons. The fourth machine was not so heavy. The machines were moved manually and the claimant’s case was that in the course of this operation he injured his back. He experienced severe symptoms later that day, did not come to work the following day, and had at the time of trial not worked properly since then.
Both liability and quantum were in issue at trial, but it was agreed during the trial that no detailed findings on quantum should be made and that the judge should, if it became relevant, only deal with matters of principle on quantum. It was not in dispute that the claimant’s involvement in moving these machines had caused an acceleration in some degenerative condition in a disc in his spine, but the period of acceleration was in issue.
The claim was brought both in negligence and for breach of statutory duty, the duty arising under Regulation 4 of the Manual Handling Operations Regulations 1992 (“the 1992 Regulations”). It was accepted that the moving of the machines was a manual handling operation covered by the 1992 Regulations, and the focus of the case was on the alleged breach of statutory duty. In the event the judge found that there had been a breach of Regulation 4(1)(a), 4(1)(b)(i) and 4(1)(b)(ii). These provisions read as follows:
“4. – (1) Each employer shall –
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured: or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured –
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable”
Schedule 1 duly sets out the factors to which the employer must have regard and the questions he must consider when making an assessment of manual handling operations. It is unnecessary to set out the contents of that Schedule in this judgment, but they require the employer to have regard to the tasks and the loads involved, the working environment and individual capability. Amongst other matters the employer must ask himself whether the load is heavy, whether the task involves excessive pushing or pulling and whether it involves frequent and prolonged physical effort.
To assist employers in performing these statutory duties, the Health and Safety Executive has published Guidance. That Guidance recognises that some manual activities involve negligible risk, the example given being lifting a teacup, and so the Guidance sets out a “filter” to help identify situations where a detailed risk assessment is necessary. That filter is based on
“… a set of numerical guidelines developed from data in published scientific literature and on practical experience of assessing risks from manual handling. They are pragmatic, tried and tested; they are not based on any precise scientific formulae. The intention is to set out an approximate boundary within which the load is unlikely to create a risk of injury sufficient to warrant a detailed assessment.
The application of the guidelines will provide a reasonable level of protection to around 95% of working men and women. However, the guidelines should not be regarded as safe weight limits for lifting. There is no threshold below which manual handling operations may be regarded as ‘safe’. Even operations lying within the boundary mapped out by the guidelines should be avoided or made less demanding wherever it is reasonably practicable to do so.” (Guidance, Appendix 1, paragraphs 3 and 4)
The point about the numerical figures not representing safe limits is repeated at the end of Appendix 1, which then adds:
“Even for a minority of fit, well-trained individuals working under favourable conditions, operations which exceed guideline figures by more than a factor of about two may represent a serious risk of injury. Such operations should come under very close scrutiny.”
Much of the Guidance is directed towards lifting operations, but pushing and pulling are also covered. Paragraph 12 of Appendix 1 provides:
“For pushing and pulling operations (whether the load is slid, rolled or supported on wheels) the guidance figures assume the force is applied with the hands between knuckle and shoulder height. The guideline figure for starting or stopping the load is a force of about 25 kg (ie about 250 Newtons) for men and about 16 kg (ie about 160 Newtons) for women. The guideline figure for keeping the load in motion is a force of about 10 kg (ie about 100 Newtons) for men and about 7 kg (ie about 70 Newtons) for women.”
The four machines in the present case had to be moved distances of between 50 and 70 feet, with a 90 degree bend being involved. The machines had been delivered that morning by Mr Norman, the owner of XYZ Haulage Limited, for which he drove and which regularly provided delivery services for XYZ Machine Tools Limited, the supplier of these four machines. The machines were unloaded by crane onto roller devices known as skates. There were three skates, all provided by Mr Norman. One had a steering mechanism by means of a plate and a handle, enabling the load to be manoeuvred round corners. That skate was placed under the front of the machine being moved, while the other two skates, without steering mechanisms, were positioned beneath the back of the machine. The machines were then pushed through the factory to the places of installation. The whole operation took some hours.
There was some dispute and indeed some uncertainty in the evidence as to how many men were involved in each operation, but there is no doubt that Mr Norman on each occasion was at the front operating the steering mechanism, and that the claimant was on each occasion one of two people pushing at the back of the machine. There also seems to have been someone at the side of the machine. The judge found that, apart from Mr Norman, three men in total were involved in moving each machine, though it seems that, apart from the claimant and Mr Norman, the individuals involved varied, as the claimant said in his own evidence. For much of the time Mr Jeffreys, the manufacturing manager of the defendant, was one of the two pushing at the back but his evidence was that he was not present for the whole of the operation. Another employee, Mr Wheavil, was only involved in moving two of the machines; he again was at the rear. He described there being one man at the front, two at the rear and one at the side “to keep a look-out”: witness statement, paragraph 7.
The witnesses generally were handicapped by the fact that almost all the contemporaneous documents, including statements taken from them by the defendant’s adviser on health and safety soon after the incident, were missing by the time of trial. That was true both of the hard copies of these documents and of the computerised versions. No records were available of the post-accident investigation which had been carried out. No explanation for this was given and, unsurprisingly, the judge was critical of the defendant on this aspect of the case.
He found that the operation involved the movement of heavy machinery and was outside the usual duties performed by the claimant. There was agreed expert evidence that, for the heaviest machines, about 140 kg of force (kgf) was required to start the machine moving and about 90 kgf to maintain it in motion, more when going round corners. That led the judge to consider how much force would have been provided by the claimant as one of the two men pushing at the rear. The judge noted that force would not be applied constantly or equally by all of the people involved, and so he considered the roles played by each. His finding on that topic are criticised by the defendant in this appeal. I summarise what those findings were.
The judge found that the two men pushing at the back would have been applying “the prime force” for a substantial amount of the time or, as he put it elsewhere in his judgment, “the majority of the forward motive force”. He found that Mr Norman at the front would have provided negligible force, since he would have been concentrating on the steering:
“… although he said he was pulling too, he was steering the large machines through a relatively narrow area. The machines were expensive and new, and his prime focus would inevitably be steering and not pulling.”
As for the lookout at the side, the judge found that he would not be pushing “all the time” but would have only provided intermittent force as he was also keeping a lookout. Given these findings, the judge concluded that the claimant was, when pushing the heaviest machines, applying a force of about 45 kgf upwards for a considerable period of time. This was arrived at on the basis that there would have been three people providing the force to get the machine moving in the first place (140 kgf divided by 3) and that, once in motion, at times when the lookout was not pushing, two people were providing the necessary 90 kgf. At other times when the lookout was pushing, the claimant would have been applying at least 30 kgf. These figures were almost twice the guideline figure for starting a load in motion (25 kgf) and three or four times the guideline figure for keeping the machine in motion (10 kgf).
Consequently the judge found that a detailed risk assessment was necessary but was not done. Indeed, he found that no risk assessment, detailed or otherwise, had been done. In that respect there had been a breach of Regulation 4. Had a detailed risk assessment been carried out, it would have identified a considerable danger of serious injury to the operatives pushing the machines. Such a manual operation could have been avoided by mechanical means, such as towing by a fork-lift truck, or the machines could have been moved by specialist movers, as had earlier happened at another of the defendant’s premises. The judge observed that it was likely that the team of operatives with the specialist movers would have had considerably more training in such operations than the defendant’s employees had had. If manual handling could not have been avoided by the defendant, the risk to its employees could and should have been reduced so far as was reasonably practicable, which could have been accomplished, said the judge, in various ways. The judge instanced
“not permitting the same individual to push more than one machine, or by rotating the people at the back pushing with the lookout position, or by using more personnel.” (paragraph 30)
He found that the defendant had not considered the factors set out in Schedule 1 to the Regulations.
Having found the breaches of Regulation 4 to which I referred at the beginning of this judgment, he went onto consider the evidence of the extent to which the claimant’s back problem had been accelerated by the events of 24 July 2002. Insofar as this aspect of the case arises on this appeal, it is accepted that it is essentially parasitic on the liability issue, that is to say, the argument raised in that respect stands or falls with the arguments on liability. I need not deal further with it at this stage.
The thrust of the defendant’s case on this appeal is that the judge’s central findings of fact are unsustainable on the evidence and were not ones open to him. There is a related argument that the judge relied on findings which had not been advanced on behalf of the claimant. Mr Nolan, QC, who appears on the defendant’s behalf, also submits that a mere breach of Regulation 4(1)(b)(i) by failing to make a “suitable and sufficient assessment” of the manual operations would not necessarily enable the claimant to recover, since it might be that even without such an assessment the employer had taken all appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. In that situation there would be no causative link between the breach of Regulation 4(1)(b)(i) and the injury to the employee.
But it is also said that a suitable and sufficient assessment was made here and that the judge’s finding to the contrary, and his comment that no assessment was done, indicate that one should approach his findings with a more critical eye than usual. Mr Nolan points to evidence from Mr Jeffreys that he had considered how the machines could be moved and had concluded that the safest way was by using skates. That, I have to say, would not be a “sufficient” assessment because it would not consider the details of the manual operation involved, such as how many men were required, how they should operate and indeed whether they would need any training in order to reduce the risk of injury to the lowest reasonably practicable level. As Mr Jeffreys frankly asserted in cross-examination, he himself was not technically equipped to calculate what force was needed. In effect, the numbers of men required and how they should perform was left to Mr Norman, whom the judge regarded as a less than satisfactory witness.
There were a number of reasons for the judge taking that view of Mr Norman. The latter had in his witness statement testified that the operation at the defendant’s premises
“would have been carried out under a standard risk assessment, a copy of which is attached to this statement.” (paragraph 11)
Such a document was indeed annexed, specifying possible hazards, identifying for some of those hazards the best practice and referring several times to training. When examined in chief, Mr Norman said that at the time of this incident he did not in fact use a written risk assessment and had got this document from another machine mover. Nor had he followed the procedures set out in it when operating at the defendant’s premises. When cross-examined, he admitted that paragraph 11 of his witness statement had not been true.
This was not the only reason why the judge was not prepared to place much reliance on Mr Norman’s evidence. The judge’s view of him was that he appeared keen to downplay any risk involved, regardless of the facts: see paragraph 18 of the judgment. Mr Norman maintained that he had done a risk assessment, but as the judge said, this appears to have consisted of nothing more than having a quick look around and reminding himself that he had done this operation many times before. The judge also appears to have had in mind the fact that Mr Norman had said that he could move such machines on his own, in the sense that he could physically get even the biggest of them into motion on his own.
But whether or not a sufficient assessment was done by anybody, I for my part accept Mr Nolan’s point that it will not be enough for a claimant to show a breach of the Regulation requiring such an assessment if the evidence shows that the defendant did in fact take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. It may have done that even without a proper assessment and, if so, the lack of an assessment will not have caused the claimant’s injury. So the real issue is whether the judge was entitled to conclude that that substantive duty to take such steps had not been performed in the present case.
Much reliance is placed by the defendant on evidence from Mr Norman that the method used for moving these machines was a standard one used by his company, which delivered some thirty to forty machines a month in this way, and that he had never heard of anyone suffering an injury. He said that machines of this weight were regularly moved with a total of three people involved. It is argued that the judge ignored this evidence and that such evidence showed that the defendant did take appropriate steps to reduce the risk to the lowest reasonably practicable level.
I do not find this line of argument persuasive. The judge was clearly aware of Mr Norman’s evidence on this aspect of the case: he refers to Mr Norman having done this operation many times before at paragraphs 25 and 26 of his judgment. In the light of what a detailed analysis revealed about the force being applied by the claimant, it is clear that this very general evidence from Mr Norman did not carry much weight with the judge, and one can understand why. None of Mr Norman’s evidence dealt with the particular factual circumstances of other such operations in the past and with how those circumstances compared with those of this operation. It is quite clear from the statutory provisions in Schedule 1 to the 1992 Regulations that the degree of risk involved in any operation will vary, depending on a number of factors. Those factors are likely to include the distance involved, the presence or absence of a bend or bends, the length of time for which the physical effort is required (which would reflect amongst other things the number of machines pushed by any one individual), and the age and capability of the persons involved. The mere fact that such machines had been pushed on skates on previous occasions by three or four men could not in itself demonstrate that what was proposed at the defendant’ s premises was reducing the risk of injury to the minimum reasonably practicable level. Mr Norman’s evidence, even had it come from a wholly reliable witness, did not deal with such factors which both the Regulations and common-sense indicate are relevant. To take an obvious example, using two or three fit young men plus Mr Norman to push a single machine on skates 20 feet or so in a straight line may well give rise to a very different degree of risk from the situation at the defendant’s premises where the 51 year old claimant was involved in pushing four machines over a number of hours a distance of 50 to 70 feet and around a bend. It is no doubt because of the potential significance of such individual factors that the 1992 Regulations require a detailed assessment of risk to be carried out in many situations.
On the facts as found by the judge as to the amount of force being applied by the claimant, it is difficult to challenge his finding that there was a considerable risk of serious injury to the claimant. As indicated earlier, the judge found that the claimant would have been applying a force of between two and four times the guideline figures at various times over these hours. The judge pointed out that the guidelines warn that, even for a minority of fit, well-trained individuals working under favourable conditions, operations which exceed the guideline figures by more than a factor of about 2 may represent a serious risk of injury.
Mr Nolan conceded in the course of argument that, if the judge’s findings as to the respective roles of the men involved in the moving of these machines were soundly based, then the defendant’s case was in some difficulty. But he submits that the judge was not entitled to find that the various men were acting in the ways he found or that the claimant was exerting the force found by the judge. It is contended that the judge was wrong to discount Mr Norman’s contribution to the moving of the machines. Moreover, it is said that the concept that only two people were really applying significance force, i.e., the two at the rear of the machines, only appears in the judgment and was not taken during the trial.
I take the last point first. The two other men were the lookout at the side of the machines and Mr Norman at the front. So far as the lookout is concerned, the transcript reveals that Mr Pearson on behalf of the claimant did submit that there was “a question-mark” as to the extent to which such a person was pushing or whether he was just acting as the lookout. None of the defendant’s witnesses identified themselves as the person at the side of any of the machines and so there was no direct evidence as to how far such a person did actually push. None of those witnesses could say during cross-examination whether the lookout man had in fact pushed. In those circumstances the judge was entitled to look at the realities of the situation and to conclude that the lookout would only have applied force “intermittently” and not all the time. That was a sensible and indeed cautious finding.
The finding that Mr Norman at the front provided negligible force because he was concentrating on steering was explored, albeit briefly, during his cross-examination. It was put to him that the pushing was done by the defendant’s men and that he just steered. He denied that, saying that he pulled as well as steered. The judge was not bound to accept that assertion. He generally was not impressed by Mr Norman’s evidence, but in any event he gave clear and cogent reasons in his judgment for finding Mr Norman would have been concentrating on steering. I have set these out at paragraph 13 (ante). The judge accepted that at times Mr Norman would have pulled to some extent, but not all the time. In my judgment, that was a finding properly open to him. It needs to be borne in mind that not every finding has to be based upon an express statement in evidence. A judge in a civil case, like a jury in a criminal trial, is entitled, and indeed expected, to use his experience of the world and his common sense, and to apply judgment. That was what this judge was doing here.
Mr Norman’s limited contribution to the moving of the machines was a theme pursued on behalf of the claimant at trial and not only during the cross-examination of Mr Norman himself. For example, when Mr Chard, one of the defendant’s witnesses, was cross-examined, it was put to him that he could not say whether or not Mr Norman had been pulling: see transcript, page 158. This was not a point invented by the judge.
I conclude that the judge’s findings as to the role played by the claimant and the other men in moving these machines were ones sustainable on the evidence and that he could properly find that the claimant was applying force at times of between two and four times the guideline figures, giving rise to a considerable risk of serious injury. Of course the statutory test is not in those terms but is one of whether the defendant had taken appropriate steps to reduce the risk of injury “to the lowest level reasonably practicable”: Regulation 4(1)(b)(ii). The defendant criticises the further or alternative steps identified by the judge as appropriate. But it would be remarkable if no such steps were reasonably practicable in a situation where a considerable risk of serious injury has been established in the absence of such other steps. It would mean that nothing further that was reasonably practicable could have been done to avoid that risk and that the employee simply had to accept the risk of serious injury. One only has to state the proposition to see how difficult the defendant’s position becomes when properly analysed. That is the context in which the defendant’s arguments on this part of the case need to be considered.
The judge identified a variety of steps which could have been taken, ranging from such mechanical methods as towing by a fork-lift truck to using specialist contractors or using more personnel. Mr Nolan points out that the claimant’s expert, Mr Plumb, emphasised mechanical alternatives, such as the fork-lift truck, without having had any practical experience of such a method, and that Mr Plumb did not favour manual handling at all. The case put by the claimant had not been that specialist movers should have been used nor that more men should have been involved. In any event, asks Mr Nolan, what would specialist movers have done differently? The judge could not have properly found that any such alternatives were reasonably practicable.
I disagree. The use of specialist movers had been expressly pleaded in the Particulars of Claim, paragraph 9(iii), as had the provision of further assistance, and the submissions on behalf of the claimant at the end of the trial expressly referred to the alternative of using a specialist firm (transcript page 327). Such a firm might have used the same basic method of manual handling with the machines on skates, but the judge was entitled to take the view that the employees of such a firm would have had considerably more training in such operations, as indeed they would have had more experience. One does not need express evidence in order to arrive at that view.
The alternative of using more men to push these machines was not merely pleaded, as I have indicated above, but was really implicit the way in which the trial was conducted, with the regular investigation of how many men were actually pushing. It was implicit in that there should have been more men involved. The claimant’s expert may have been critical of manual pushing as such, but the defendant’s witnesses were supporting such a method. The judge was entitled to conclude that the manual method could be appropriate, had there being an adequate number of men doing the pushing. Whether there were enough was always an issue at this trial. I cannot see that the defendant suffered any unfairness in this respect.
I conclude that the judge was right to find that the defendant had not taken appropriate steps to reduce the risk to the lowest level reasonably practicable. It was therefore in breach of the substantive duty under Regulation 4(1)(b)(ii) and was liable in consequence in damages for the claimant’s injury. It is conceded that the judge’s finding as to the number of years acceleration of that injury cannot be challenged successfully if his findings as to the force applied by the claimant are sustainable on the evidence. In my judgment, for the reasons set out earlier, they are and I need not therefore deal further with the acceleration issue.
It follows that I would dismiss this appeal.
Lord Justice Rix:
I agree.
Lord Justice Waller:
I also agree.
Martin -v- Dunnes Stores (Dundalk) Ltd
[2016] IECA 85
O’Neill J.
“5. The trial judge accepted the plaintiff’s evidence as to the manner in which the injury had been sustained. Namely, that she was “yanking it [the bag] out” from between the other bags of potatoes when she suffered the injury to her arm.
6. As to the liability issue, the trial judge was satisfied that insofar as checkout operators might have to respond to customers requests, the defendant had in place a system whereby employees would first seek assistance from staff at or near the checkout and, in default of finding a member so available, would seek backup assistance by deploying the tannoy located in the checkout area. This system was reasonably assiduously followed by the defendant. O’Neill J. concluded, however, that on the day in question the store was short staffed and the plaintiff could see no one available to assist her. He found that in such circumstances the plaintiff had no alternative but to leave the checkout and go and get the customer’s bag of potatoes herself. He thus found that the plaintiff had not been provided with adequate assistance or a safe system of work.
7. The trial judge also concluded that, having regard to the circumstances in which she had been required to lift the bag off the pallet, namely from almost ground level and out from her body, that the weight of the bag was excessive. He further found that the additional force required to extricate the bag from the adjacent packages presented a very significant risk of injury to any employee and that the lift which the plaintiff had been required to carry out was excessive, inappropriate and potentially dangerous.
8. While the trial judge found that the plaintiff had been well trained in the theory of manual handling and lifting and that the courses provided for her by the defendant were “adequate”, he nonetheless went on to conclude that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.
9. In such circumstances the trial judge concluded that the defendant was negligent in requiring the plaintiff to carry out a lift that was excessive, inappropriate and potentially dangerous and was one for which the plaintiff had not been adequately trained.
10. This is how the trial judge voiced his conclusions:-
“So I am satisfied that the accident which happened to the plaintiff was caused by a dangerous lift and an absence of adequate training in the proper lifting of objects such as this and then the failure of the defendant’s system for providing assistance on the day in question. The plaintiff did her best on the day and I see no evidence of any contributory negligence on her part and it seems to me that the defendants are entirely liable for and responsible for this accident because of their failure in their duty to the plaintiff to provide her with a safe system of work on the day and they are, therefore, obliged to compensate for the full amount for damage.”
……
20. The Safety, Health and Welfare at Work Act 2005, provides at s. 8(1) thereof that:
“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”
21. What the words “reasonably practicable” mean are defined in s. 2(6) of the 2005 Act, namely:-
“For the purposes of the relevant statutory provisions, ‘reasonably practicable’, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.”
Decision
22. It is not in contest that this court is bound by the decision of McCarthy J in Hay v. O’Grady [1992] I.R. 498. Thus, findings of fact made by the trial judge which are supported by credible evidence cannot be displaced by the appellate court. This is because the appellate court, unlike the trial judge, does not enjoy the opportunity of seeing and hearing the witnesses. Likewise, were inferences are drawn based upon oral evidence heard by the trial judge, an appellate court ought to be slow to interfere with or draw different inferences than those drawn by the High Court judge. However, insofar as inferences are drawn from circumstantial evidence, an appellate tribunal is in just as good a position as the trial judge to reach its own conclusions.
23. There are a number of matters which are not in dispute between the parties. Firstly, the plaintiff was a hard-working and loyal employee of the defendant and the judge found her to be a credible and honest witness. Secondly, there is no dispute that the defendant had a system in place whereby members of the checkout staff could access assistance from other members of staff should they require it. If necessary, the system included their recourse to the tannoy which the trial judge found was to be located at the end of the checkout aisle. Thirdly, it is accepted that the plaintiff was trained in manual handling techniques on a regular basis. After each such manual handling course she was tested in respect of her knowledge. This involved her considering a range of questions on a questionnaire and answering them. albeit in a tick box format.
24. Critical to my conclusions on this appeal is the extent of the onus placed on an employer to take due care for the safety and welfare of their employee. I have already referred to the statutory obligations in this regard. In the context of this case it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charlton J.
25. Insofar as the trial judge concluded that the defendant failed to comply with its duty of care to the plaintiff when she was stationed at the checkout, I fear that I must disagree with his findings based upon the evidence heard in the course of the trial. From that evidence it would seem to me that there is very little potential hazard or risk faced by an employee working at a checkout in Dunnes Stores in Dundalk, regardless of its expectation that its customers needs would be met by checkout operators as a matter of priority. From time to time in the course of any given day they might be asked, as occurred in the present case, to fetch or exchange a product for a client and most of those products are ones which, in the normal course of events, the customer would themselves bring to checkout.
26. The defendant had a system in place whereby any member of the checkout staff who required assistance was instructed to seek assistance from such members of staff as might readily have been available to them. If they were not so available they were trained to call for assistance using the tannoy. The undisputed evidence in this case was that Mr Joe Smith, Mr David Robinson and other members of staff were available to respond to a request for assistance had such a call been made over the tannoy. However, the plaintiff did not follow her training. She ignored the system that was put in place by her employer to make sure that she would not be required to undertake any unwarranted tasks. The trial judge’s finding of fact that there was no other help available to the plaintiff and that she had no option but to go and get the potatoes herself, is not actually supported by the evidence.
27. I can well understand how the plaintiff, anxious to please the customer, and, indeed, her employer, immediately went off to replace the bag of potatoes when asked by the customer to do so. She made a judgement call based upon her belief that the store was short staffed because it was a holiday period. She knew that her direct supervisor was on holidays and her acting up supervisor was working at the express checkout till. She assumed Mr Smith was on his lunch, which he was not. He was available to assist had he been called. Further, the evidence was that there were other members of staff on the floor who were also in a position to render assistance had she used the tannoy. She did not follow the system which she had been trained to operate and which was designed to best protect her interests.
28. I am quite satisfied from the evidence that Dunnes Stores had a policy and procedure in place to protect the welfare and safety of those working at their checkouts. Those procedures took into account the possibility that, from time to time, there would be no one immediately available at the tills themselves in which case the checkout operator has been trained to seek assistance from a member of staff using the tannoy. I agree with Mr Mohan’s submission this was a reasonable procedure to deploy and that the trial judge erred in law in concluding that the defendant had failed in its obligations to provide proper assistance for the plaintiff on the day in question.
29. For my part I believe that it would be neither reasonable not practicable to expect the defendant to have an employee ever present available to deal with any query as might be brought to the checkout operator by a customer. As Mr. Mohan pointed out, even if the store had one or more full time assistants available to checkout operators, it would invariably happen that from time to time these would be deployed on the floor when another problem needing attention. In such circumstances assistance would only be available over the tannoy. The temporary unavailability of a staff member in such circumstances could not, in my view, be considered sufficient to establish a breach of duty on the part of an employer.
30. Thus, a system which depends on the occasional use of the tannoy is, in my view, perfectly acceptable as providing a system which is practical and reasonable for the purposes of protecting the health and safety of the employee working as a checkout operator. I agree that this was a reasonable system to have an operation and it was one which, had the plaintiff operated it, would have brought Mr Smith to the checkout to assist the plaintiff. Contrary to the trial judge’s conclusions, the system on the day in question did not fail and there was no evidence to support that finding or his finding that no other help was available to the plaintiff.
31. Further, even if the defendant was negligent in failing to provide the plaintiff with adequate assistance while she was working at the checkout, a proposition which I reject for the reasons earlier advanced, the same was not causative of her injuries for the reasons to which I will shortly refer.
32. As to the trial judge’s finding that the defendant was negligent in failing to afford the plaintiff adequate practical training as to how she might lift a product such as the 10 kg bag of potatoes, or a like weight packet of dog food or compost and/or his finding that the lift which she was required to make was excessive, inappropriate and potentially dangerous, I once again find myself in disagreement with his conclusions.
33. From his judgment, it is clear that O’Neill J. found, as a matter of fact, that the plaintiff had sustained her injury when she was trying to “extricate” the bag of potatoes by leaning in over the pallet and “yanking it out” from its wedged position between other bags of potatoes. The plaintiff did not sustain her injury by lifting a 10kg load from floor to shoulder height out from her body in the manner depicted as being excessive for women in the document providing guidance in respect of the management of manual handling in the workplace, and which was attached to the report of Mr Joseph Osborne, consulting engineer, dated 6th October 2011. Thus, his finding that the load which she was lifting was excessive is not, in my view, sustainable on the evidence.
34. It is also clear from the evidence and the findings of the trial judge that he accepted that the plaintiff had been trained and assessed on a regular basis in relation to manual handling skills and techniques. The plaintiff, in the course of her evidence agreed that she had been trained how to lift heavy items, albeit by way of training using an empty cardboard box. She knew that the load was to be lifted as possible to her body. Further, she had been instructed as to how to assess the size and weight of any load which she was expected to handle and she also agreed that she understood that when pulling a load any stretching or twisting action might cause injury. She acknowledged these factors by reference to an assessment test sheet dated 7th March 2006 referable to a manual handling course which she had completed at that time. She also accepted under cross-examination that she had been taught to look for help if she needed it and that she must not lift or handle any load which she felt uncomfortable about handling.
35. For my part, I am not satisfied that trial judge’s finding that the defendant was negligent in failing to have in place a manual handlingtraining system which included practical training for employees concerning products of the nature referred to by the trial judge in his judgement is supported by the evidence. Such a system, I believe, would be neither reasonable not practicable for any employer particularly one such as the defendant, who presumably has an ever changing range of products from groceries to furniture to household goods which employees have to handle on a regular basis. However, the more significant point is that there could be no causative link between any such failure on the part of the defendant and the plaintiff’s injuries. Even if the defendant had had such a system of training in place it would not have covered the situation which arose in the present case. The injury was not sustained because the plaintiff was lifting a 10 kg bag of potatoes from a pallet. It was sustained when the plaintiff lent in sideways over the pallet and “yanked” this product from between two other bags of potatoes, which for some reason she left in situ while trying to extricate the bag concerned. This precise scenario was unlikely to be covered by any manual handling course practical or otherwise.
36. I am quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did.
37. In this particular case the hazard faced by the plaintiff did not emanate from lifting a 10kg bag of potatoes. The plaintiff knew the weight of the pack – it is printed on the bag. She said in evidence she had no concerns about lifting such a bag. She had also been trained to identify lifting or handling activities which might potentially place her at risk. In the course of the evidence she demonstrated that she well knew that twisting her body while pulling a load might expose her to a risk of injury. She had been trained to seek assistance if she was uncomfortable about any task she had been asked to perform. It was readily apparent to her when she went to lift the bag of potatoes that it was stuck. She was also, according to own evidence, standing sideways onto the pallet when she lent in to try and move the pack of potatoes. It was obvious from the very start that the bag of potatoes could not readily be moved. She accepted that if she felt uncomfortable about performing a lift or any other manual handling exercise that she ought to have sought assistance rather than undertaking it herself. Based upon that training she should have assessed the lift in these circumstances to be unsafe.
38. This is, indeed, an unfortunate case. The plaintiff, a loyal and hard-working member of the defendant’s staff, because of her commitment to her employer and her desire to meet a customer’s needs, took on a task which was contra indicated by her training and did so in circumstances where she knew or ought to have known she might sustain an injury. She did not seek assistance at the checkout, as she might have done having regard to her training, and further, when faced with moving a heavy bag of potatoes which was obviously wedged in position such that it could not be easily extracted without force, proceeded to try to yank it free thus causing herself an injury.
39. Having considered all of the evidence that was before the High Court, I am not satisfied that the plaintiff’s injuries can be ascribed to any negligence, breach of duty or breach of statutory duty on the part of the defendant who, to my mind, had taken all reasonable precautions and had implemented all reasonable practices to protect the plaintiff from injuring herself in circumstances such as those which presented in the present case.
40. While it is impossible not to have great sympathy for the plight and predicament of the plaintiff, the law on the matter is, I fear, very clear.
41. In these circumstances I am satisfied that the defendant’s appeal must be allowed.
A & Ors, R (on the application of) v East Sussex County Council & Anor
[2003] EWHC 167
Mr Justice Munby:
Introduction
“…..
Both A and B suffer from greatly impaired mobility. Even the simplest physical movement, for example, getting out of bed or getting into the bath, requires them to be moved and lifted by their carers. Central to all the disputes which have blighted this family’s life for so many years now is a fundamental difference of view between X and Y, on the one side, and ESCC, on the other side, as to whether and to what extent this moving and lifting should be done manually, as X and Y would prefer in some instances, or, as ESCC would have it, using appropriate equipment.
The litigation
…..
All parties were agreed that I should first try two discrete issues:
i) The first issue (“the user independent trust issue”) is whether care staff may lawfully be provided to the family by ESCC by means of a vehicle known as a ‘user independent trust’. This raises a short but important point of pure law.
ii) The second issue (“the manual handling issue”) concerns the legality of what is said to be ESCC’s policy of not permitting care staff to lift A and B manually. This is a much more complicated issue, raising, on one view of the matter, difficult questions of law (by which I mean domestic law, human rights law and European Community law), of policy and of fact.
….
The manual handling issue
…………
The current proceedings were issued, as I have said, on 29 November 2001. Amongst the relief sought was an order quashing the assessments and care plans dated 28 September 2001, a declaration that what was described as “the Council’s blanket “no manual lifting” policy” is unlawful, and a mandatory order compelling ESCC to arrange the provision of community care services to A and B in accordance with Mr Wall’s care plans dated 23 May 2000 as updated on 29 June 2001. Part of the claimants’ case was that ESCC had failed to comply with certain undertakings it had given as embodied in the earlier consent order.
…..
The issue
The DRC, as we have seen, accepted before Wilson J in June 2002 that ESCC’s revised ‘Safety Code of Practice: Manual Handling’ as adopted on 14 June 2002 is lawful and representative of good practice. Before me Mr Wolfe on behalf of the DRC accepted that the Code is, ex facie, lawful. That was not challenged by either Miss Foster on behalf of A and B or Mr Hunt on behalf of X and Y and was, of course, asserted by Ms Lang on behalf of ESCC. Having now had the benefit of very extensive argument as to the relevant principles I have no hesitation in agreeing with Mr Wolfe. ESCC’s Code as adopted on 14 June 2002 is lawful – by which I mean that the general policy and approach it proclaims is compatible with all relevant requirements of both domestic and human rights law. That is not, of course, to say that some other policy might not equally be lawful, for it is of the nature of the problem that a number of different policies may all be lawful; but it is enough to say that, in my judgment, this policy is plainly lawful.
….
The statutory setting
The manual handling issue arises in the context of the duties owed by ESCC to A and B under the 1948, 1970 and 1990 Acts. As I explained in paras [11]-[16] of my earlier judgment, ESCC has the power under the 1948 Act and is under a duty pursuant to both the 1948 Act and the 1970 Act to “make arrangements” to provide A and B with services, facilities and support of the relevant kind.
It is common ground that, given A and B’s greatly impaired mobility, the “arrangements” which have to be made for them under the 1948 and 1970 Acts involve a very significant amount of moving and lifting of A and B by their carers – that is, at present, by carers who are employees of ESCC. This part of the arrangements accordingly brings into play another statutory scheme to which I must now turn.
Domestic law – the statutory framework
The Health and Safety at Work etc Act 1974 imposes certain duties on employers. So far as material for present purposes section 2 provides as follows:
“(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular –
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; …
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees.”
Section 3(1) provides that:
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
The various regulations made under the 1974 Act include The Manual Handling Operations Regulations 1992, SI 1992 No 2793, and The Management of Health and Safety at Work Regulations 1999, SI 1999 No 3242.
The detailed provisions of domestic law reflect in major part Council Directive 89/391 of 12 June 1989, on the introduction of measures to encourage improvements in the safety and health of workers at work (the “Framework Directive”), and Council Directive 90/269 of 29 May 1990, on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (the Fourth Individual Directive made under the Framework Directive). I need not set out the relevant provisions: I can go straight to the various domestic regulations that implement them.
It is convenient to take the 1999 Regulations first. The following are the regulations which are relevant for present purposes:
“3(1) 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 …
4 Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.
5(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures …
12(1) Every employer and every self-employed person shall ensure that the employer of any employees from an outside undertaking who are working in his undertaking is provided with comprehensible information on—
(a) the risks to those employees’ health and safety arising out of or in connection with the conduct by that first-mentioned employer or by that self-employed person of his undertaking; and
(b) the measures taken by that first-mentioned employer or by that self-employed person in compliance with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions … in so far as the said requirements and prohibitions relate to those employees …
13(1) Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety …
14(1) Every employee shall use any machinery, equipment, dangerous substance, transport equipment, means of production or safety device provided to him by his employer in accordance both with any training in the use of the equipment concerned which has been received by him and the instructions respecting that use which have been provided to him by the said employer in compliance with the requirements and prohibitions imposed upon that employer by or under the relevant statutory provisions … “
Schedule 1 is in the following terms:
“General principles of prevention (This Schedule specifies the general principles of prevention set out in Article 6(2) of Council Directive 89/391/EEC)
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source;
(d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;
(e) adapting to technical progress;
(f) replacing the dangerous by the non-dangerous or the less dangerous;
(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;
(h) giving collective protective measures priority over individual protective measures; and
(i) giving appropriate instructions to employees.”
It is important, however, to note regulation 22(1) which provides that:
“Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings.”
So much for the general scheme. I turn now to the particular provisions with which I am directly concerned, the 1992 Regulations. These, it is to be noted, contain no provision corresponding to regulation 22(1) of the 1999 Regulations. It is clear that an action will lie for breach of the statutory duties imposed by the 1992 Regulations.
The key provision is regulation 4(1), but to understand it one has to bear in mind that regulation 2(1) defines “manual handling operations” as meaning:
“any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force.”
Regulation 2(1) defines “load” as including “any person and any animal”. Thus it can be seen that the 1992 Regulations apply not merely to the manual handling of electrical goods by a warehouseman in an electrical goods shop but also to the manual handling of an animal carcass by a slaughterman in an abattoir and to the manual handling by a careworker of incapacitated patients such as A and B.
Regulation 4(1) provides, so far as material for present purposes, as follows:
“Each employer shall—
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on—
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally.”
I need not read Schedule 1 (which reflects the provisions of Annex 1 to Council Directive 90/269) nor regulation 4(2). Regulation 4(3) provides that:
“In determining for the purposes of this regulation whether manual handling operations at work involve a risk of injury and in determining the appropriate steps to reduce that risk regard shall be had in particular to—
(a) the physical suitability of the employee to carry out the operations;
(b) the clothing, footwear or other personal effects he is wearing;
(c) his knowledge and training;
(d) the results of any relevant risk assessment carried out pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999;
(e) whether the employee is within a group of employees identified by that assessment as being especially at risk; and
(f) the results of any health surveillance provided pursuant to regulation 6 of the Management of Health and Safety Regulations 1999.”
The 1992 Regulations are explained at length both in the Explanatory Note that accompanies them and in the Health and Safety Executive’s booklet ‘Manual Handling, Manual Handling Operations Regulations 1992: Guidance on Regulations’ (L23). I need not refer to either save to say that I was referred in particular to paragraphs 23, 42, 71, 72 and 153 of the Explanatory Note and to paragraphs 7 and 10 and Appendix 1, paragraphs 2, 7 and 8 of the booklet.
……………
Domestic law – the case-law
I was referred to a number of authorities relevant to the operation of the 1992 Regulations. Without exception they are all cases of actions for damages for personal injury. It is convenient to take them in chronological order.
The first is Edwards v National Coal Board [1949] 1 KB 704 where the Court of Appeal had to consider the meaning of the phrase “reasonably practicable” in section 102 of the Coal Mines Act 1911. Asquith LJ at p 712 said this:
“The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s 49. The construction placed by Lord Atkin on the words “reasonably practicable” in Coltness Iron Co v Sharp [1938] AC 90, 94, seems to me, with respect, right. “Reasonably practicable” is a narrower term than “physically possible” and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s 49? (b) Are these measures reasonably practicable?”
The next case is Koonjul v Thameslink Healthcare Services [2000] PIQR P123, where a care assistant who hurt her back when attempting to move a bed failed in a claim based on alleged breach of regulation 4 of the 1992 Regulations. Her appeal to the Court of Appeal was dismissed. Hale LJ said this at P126 (paras [10]-[13]):
“[10] For my part, I am quite prepared to accept [that] to bring the case within the obligations of regulation 4 … 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.
[11] However, in making such assessments there has to be an element of realism. As the guidance on the regulations points out, in appendix 1 at paragraph 3:
” … a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort.”
[12] 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.”
[13] It also seems to me clear that the question of what does involve a 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. In this case, we have a small residential home with a small number of employees. But those employees were carrying out what may be regarded as everyday tasks, and this particular employee had been carrying out such tasks for a very long time indeed. The employer in seeking to assess the risks is entitled to take that into account.”
She continued at P127 (para [16]):
“For my part, I am prepared to assume that some risk could be envisaged from such an operation, albeit with the reservations already expressed. However, when it comes to whether or not there was a breach of the regulations, it seems to me that in the particular circumstances of the case there was no such breach. The first obligation is to avoid the need for employees to undertake such operations, as far as reasonably practicable. In this case, it is alleged that the bed did not need to be against the wall and has since been moved away from the wall. But the purpose of having the bed against the wall was to save children from risk of harm through falling out of bed, and it seems to me that if there are children resident in the home for whom that is a risk, it is entirely appropriate that such beds should be against the wall and it is therefore not right to expect the employer to have the beds away from the wall in every circumstance.”
I draw attention to the test as being one of “real risk”, that one has to have regard to the “context”, looking to “the particular circumstances of the case” and the “particular employees involved” and that an “element of realism” is called for in making assessments under Regulation 4.
The next case, the decision at first instance in Young v Consignia [2001] All ER (D) 480, adds nothing to the jurisprudence, so I can pass on to the decision of the Court of Appeal in Alsop v Sheffield City Council [2002] EWCA Civ 429, where a refuse collector failed in a claim based on regulation 4 for injuries he suffered to his back when pulling a wheelie bin up a slope. Agreeing with Mantell LJ in dismissing the appeal, Kennedy LJ said at para [10]:
“Regulation 4(1)(b) applies not to all manual handling activities at work but only to those which involve a risk of the employees being injured. That was made clear in the case of Koonjul … The risk has to be real, a foreseeable risk of injury, although not anything approaching a probability. In deciding whether or not such a risk exists the employer is entitled to have regard to the experience of the employee said to be at risk.”
The next case, also a decision of the Court of Appeal, is King v Sussex Ambulance NHS Trust [2002] EWCA Civ 953. There an ambulancemen who had injured his back whilst helping his colleague, Mr Criddle, to carry an elderly patient down the stairs of his cottage succeeded at first instance in a claim, based on regulation 4, to the effect that the fire brigade should have been called to remove the upstairs window and lift the patient out on a crane. On appeal to the Court of Appeal the defendant’s appeal was allowed and the judgment was set aside. Hale LJ said, paras [12]-[13]:
“[12] The appellant challenges the judge’s finding that the ethos of the service was to discourage use of the fire brigade. There is nothing wrong in regarding it as a last resort, provided that it is available when appropriate. The evidence was that this option had always been available and was not discouraged. Crews were trained to consider it. Indeed Mr Criddle did do so but rejected it. Mr Layhe, the supervisor who gave evidence, would have done the same had he been on duty and consulted that day.
[13] It would have been rejected because it was not appropriate. The judge did not consider whether or not it would have been so. ‘Appropriate’ must mean something more than a theoretical possibility. It has to be judged against the circumstances of the case. This was not a particularly heavy patient although it was an awkward lift. He needed a response within an hour. Using the fire brigade takes a long time, may distress the patient, and is medically unsuitable for some. There was nothing to suggest that it was even possible, let alone suitable, in this case.”
She continued, para [18]:
” … In my view there is no liability … There was nothing to suggest that calling the fire brigade would have been an appropriate measure in this case, whether to avoid the need to carry the patient downstairs or to reduce the risk of injury in doing so. The evidence was that it is rarely used because it has to be carefully planned, takes a long time and distresses the patient. This was not an emergency call but it was urgent. We know nothing of what the response either of the patient and his wife or the fire brigade would have been. There may be some situations in which a call for help is indeed the appropriate solution. This will depend upon the magnitude of the problem, the urgency of the case, and the actual or likely response of the patient or his carers and the fire brigade itself. But there was nothing to justify such a finding here. Nor has the claimant shown that giving this possibility more emphasis in training or more anxious consideration on the day would have avoided the claimant’s injuries.”
These passages bring out three important points: that the method to be adopted when lifting or moving a person should be “appropriate … judged against the circumstances of the case”, that what is appropriate is not merely that which is theoretically possible, and that appropriateness has to be assessed having regard, inter alia, to “the urgency of the case” and to not merely the medical needs but also the wishes and feelings of the patient (“the actual or likely response of the patient or his carers”).
Hale LJ then turned to consider the alternatively pleaded case in negligence. I am not directly concerned with that but certain of her observations in paras [22]-[24] are nonetheless relevant:
“[22] … there is a further dimension which is particularly applicable to the statutory services. As Denning LJ put it in Watt v Hertfordshire County Council [1954] 1 WLR 835 at p 838:
“It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk … I quite agree that fire engines, ambulances and doctors’ cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end.”
[23] The problem in a case such as this is that the ambulance service owe a duty of care to the members of the public who have called for their help: see Kent v Griffiths [2001] QB 36. This can result in liability for failing to attend to a patient within a reasonable time. The service do not have the option available to a commercial enterprise of refusing to take the job. If a removal firm cannot remove furniture from a house without exposing its employees to unacceptable risk then it can and should refuse to do the job. The ambulance service cannot and should not do that. But that does not mean that they can expose their employees to unacceptable risk. The employers have the same duty to be efficient and up-to-date and careful of their employees’ safety as anyone else. It does mean that what is reasonable may have to be judged in the light of the service’s duties to the public and the resources available to it to perform those duties: as Colman J put it in Walker v Northumberland County Council [1995] 1 All ER 737, at p :
“The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care and the purpose of the activity giving rise to the risk of injury.”
[24] One returns, therefore, to balancing the various considerations. The risk to the employees in this case was not negligible. It was considerable both in the likelihood of its occurring and in the seriousness of the harm which might be suffered if it did. As Mr Goddard put it, there was a risk of a career-ending injury, which indeed happened here. As Mr Hayne put it, the activity was clearly hazardous. Against that, it was of considerable social utility. The Service did not have a choice but to respond to the patient’s needs. Those needs were urgent but not an emergency. The Service had limited resources, not so much in financial but in equipment terms, with which to respond. The problem therefore remains of what could reasonably have been done to respond to those needs without putting the crew at risk. In this case there was no evidence of anything that the employer could have done to prevent the risk and no suggestion other than calling upon a third party to do the job for them. If calling the fire brigade was not appropriate or reasonably practicable for the purpose of the Directive or the Regulations it cannot be lack of reasonable care to fail to do so.”
I have set out these passages in full because any attempt at more selective quotation might be misleading. But putting it shortly, what Hale LJ was saying, as I understand it, is that an employee whose job is to lift people (the ambulance man) may have to accept a greater degree of risk than one who is employed to move inanimate objects (the furniture remover) and that what is reasonable (and, I would add, practicable) has to be evaluated having regard to the social utility of the operation and a public authority’s duties to the public and to the particular member of the public who has called for the authority’s help. At the same time one has to recognise, of course, that none of this can justify exposing an employee to what Hale LJ referred to as “unacceptable risk”.
The next case is another decision of the Court of Appeal, O’Neill v DSG Retail Ltd [2002] EWCA Civ 1139, a case involving a claim by a warehouse manager who injured his back whilst carrying a microwave oven. The Court of Appeal reversed the trial judge and gave judgment for the claimant. In the course of giving the leading judgment Nelson J said this, para [56]:
“There must be ‘a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability’. When assessing risk the employer must take into account that his employees will not on all occasions behave with full and proper concern for their own safety and the particular operation being carried out in the context of the particular place of work and the particular employee must be considered. Such consideration does not involve examining the precise detailed circumstances of what occurred in each accident, as if that were the case, the regulations might not apply in cases where an employee had acted negligently. This would restrict the application of the Regulations unduly. Schedule 1 of the Regulations clearly poses questions relating to the task to be performed generally. This reinforces the view that it is the particular task which is to be considered, in the context of where it is to be performed and the particular employee who is to perform it. These questions all go to the nature of the task and the risks involved in how it is likely to be performed rather than the precise detail of how it is in fact performed.”
He added this comment, paras [61], [64]:
“[61] … Had [the expert] considered that this was a case where the task should have been undertaken without any manual handling at all I have no doubt that he would have said so in his report. He did not. It is entirely clear from his report and the evidence which was given at the trial that his view was this was a task which inevitably involved some manual handling, even if mechanical aids had been provided and used. The main thrust of his report was that this was a case where the principal failure of the Respondent was the failure to provide proper training for the manual handling which had to be carried out …
[64] … The task was clearly one which required manual handling at least in part, and the evidence before the Judge was sufficient for her to come to that conclusion. In my view therefore the point did not arise, but in any event the Judge was perfectly entitled to deal with it and find implicitly that there was no breach of Regulation 4(1)(a).”
Chadwick LJ said this, paras [87]-[88]:
“[87] Regulation 4(1) … imposes on an employer a duty (a) so far as is reasonably practicable, to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured or (b), where it is not reasonably practical to avoid that need – (ii) to take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably possible.
[88] It is plain that the two limbs of that duty are complementary, but mutually exclusive. It is plain, also, for the reasons set out by Mr Justice Nelson, that this is not a case in which the appellant could, or can now, rely on regulation 4(1)(a). It could not be said that it was reasonably practicable for the employer to avoid the need for the appellant, a warehouse manager at a Curry’s superstore, to undertake any manual handling operations which involved the risk of his being injured. Some manual handling operations involving the risk of injury were an inherent feature in what the appellant was employed to do. The relevant duty under the 1992 Regulations in the present case was that imposed by regulation 4(1)(b)(ii). The employer was required to take appropriate steps to reduce the risk of injury to the lowest level reasonably practical.”
This last passage is particularly significant. There may be situations where some manual handling is an inherent feature in what the employee is employed to do. Miss Foster, Mr Hunt and Mr Wolfe submit that an obvious example of such a case is where, as here, someone is employed to care for a person – a human being – who suffers all the disabilities of people in the situation in which A and B find themselves. I agree.
In the present case there is a truly astonishing mass of material filed with the court which charts and records in enormous detail – in relentless and remorseless detail – the problems faced by A and B and their carers X and Y, the details of their daily routines, the precise details of virtually every ‘lift’ that occurs during the day, and the various views which have been expressed not merely by X and Y but also by a wide range of other people as to how each of these ‘lifts’ can and should appropriately be achieved. I do not propose even to summarise let alone to analyse this almost unmanageable mass of material. It suffices to say that in the present case, in my judgment, some manual handling is on any view an inherent – an inescapable – feature of the very task for which those who care for A and B are employed.
Accordingly, as Chadwick LJ explained, it cannot be said that it is reasonably practicable for ESCC to avoid the need for their employees to undertake any manual handling of A and B. The duty of ESCC is, as he put it, to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable, having regard, I would add, to all those factors mentioned by Hale LJ in Koonjul and King to which I have drawn attention.
The final decision is that of Simon J in Knott v Newham Healthcare NHS Trust [2002] EWHC 2091 (QB), a case where a hospital nurse received very substantial damages for injuries to her back caused by having to move patients. Her case was that the lack of appropriate lifting equipment meant that the defendant was effectively operating a policy of moving patients manually, and that this was unsafe and contrary to the 1992 Regulations. Simon J found the defendant to be in breach of its duties under regulation 4(1), holding (para [30]) that there were “real risks of injury inherent in the Drag lift”, which was the method of moving patients habitually used in the Beckton Ward of the hospital where the claimant worked. In coming to this conclusion the judge applied the law as stated by Asquith LJ in Edwards and by Hale LJ in Koonjul. His conclusion (para [35]) was that:
“I find the Defendant did not operate an appropriate system for lifting patients in the Beckton Ward. I also find that no real steps were taken to reduce the risk of injury to their employees to the lowest level reasonably practicable in the relevant period; and that, so far as Beckton Ward was concerned, there was no adequate response to the 1992 Regulations.”
Knott is a stark reminder of the realities. The risks faced by those employed in the caring professions if they lift patients manually are graphically illustrated by what Simon J said in paras [60]-[68]. I need not set out the relevant passages in full. I draw attention only to the salient passages:
“The Claimant suffered serious and painful injuries: a disc prolapse … with compression/lesion of the conus. The Claimant has suffered and continues to suffer from low back pain, particularly when sitting. Her evidence before me was interrupted so as to enable her to take breaks. She also suffered from sensory disturbance in the sacral segments, loss of feeling in the vagina and loss of orgasmic sensation, bladder dysfunction causing incontinence, and anal sphincter difficulties causing some faecal incontinence … She is continually aware of her back and suffers from pain, and occasional painful spasms, on her left side. She has aching in the middle of her back from the early afternoon and takes painkillers and Diazepam to prevent muscle spasm. During her monthly periods she takes Dextromeramide for severe pain, is bed bound and has an in-dwelling catheter. She cannot lie down flat and is unable to have children … She has sleeping difficulties. She also suffers from depression, although this pre-existed her injuries. Her injury has placed considerable strain on her marriage. Socially she has lost confidence since her injury, finds herself bored with her life, unable to drive and incapable of cooking and other chores around the house … The Claimant … has suffered a loss of role and self esteem as a result of her injury … her inability to continue nursing as a vocation represents a loss of congenial employment.”