Detailed risk assessments and manual handling – Stewart v Lewisham & Greenwich NHS Trust [2017] EWCA Civ 2091
In a welcome result for employers, the Court of Appeal handed down judgment in December in the case of Stewart v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 2091.
The Court of Appeal dismissed the Claimant’s appeal from a first instance decision of Recorder Gasztowicz KC on 2 March 2016. The claim concerned a back injury alleged to have been suffered at work in the course of manual handling operations.
The Claimant, a midwife, had lifted a 7.5-8kg “Oxygen Box”, a regularly used and necessary piece of equipment. The claim focused on breach of the Management of Health and Safety at Work Regulations 1999; Manual Handling Regulations 1992; and in negligence, alleging the lifting activity was sufficiently hazardous so as to require a risk assessment under Regulation 4 of the Manual Handling Regulations 1992 (“the Regulations”).
The evidence at first instance had been that the activity was not individually risk assessed, but that the Claimant had received training in moving and handling equipment on three occasions prior to the accident and had been instructed she should assess any load before attempting to lift it. On the day in question, the Claimant had “scooped” up the Oxygen Box, rather than lifting it by the handle, which is how it was designed to be lifted.
At trial, the claim was dismissed on the basis that failure to carry out a risk assessment did not amount to breach of the Regulation where there was no real risk of injury.
The Claimant appealed on a number of grounds, including that the Recorder had been wrong to conclude that there was no requirement for a risk assessment.
Giving the leading judgment in the Court of Appeal, Hamblen LJ, referred to both the Health & Safety Executive Guidance on the Regulations, in particular the Risk Assessment Filter, and Hale LJ’s (as she then was) judgment in Koonjul v Thamselink Healthcare Services [2000] PIQC P123 that the duty under Regulation 4 only arises where there is a real risk of injury.
The Court of Appeal concluded, agreeing with the Defendant’s submissions, that the Recorder had found that as a matter of fact there was no real risk of injury when lifting the Oxygen Box.
The Oxygen Box, when picked up by the handle, would have been at mid-lower leg height and therefore, at 7.5 to 8kg, fell within the category of lifts which did not require detailed risk assessment applying the HSE’s Risk Assessment Filter which can be found at page 8 of the HSE’s Guidance on Manual Handling at Work: http://www.hse.gov.uk/pubns/indg143.pdf. The Court of Appeal found that the finding of fact was one the Recorder was entitled to make and therefore, that there had been no breach of duty by the Defendant. The Claimant’s appeal was dismissed.
The Court of Appeal’s pragmatic approach to the requirement for a risk assessment in this case builds on its history of focusing on what the duty is in light of the risk which arises, rather than whether or not that there has been a technical breach of a statutory or common law duty to risk assess. In Nicholls v Ladbrokes Betting & Gaming Ltd [2013] EWCA Civ 1963, the Court of Appeal also allowed a Defendant’s appeal, despite there being no documentary risk assessment available at trial, taking into account that there was no evidence that the betting shop had been at a high risk of robbery and therefore, there was no basis for imposing a duty to operate a magnetic lock as a vetting procedure after dark. The Claimant employees claim for psychiatric injury arising out of a robbery was therefore dismissed. Catherine Foster appeared for the successful appellant.
Stewart v Lewisham and Greenwich NHS Trust is also another demonstration of the importance of referring back to the HSE’s guidance, and not just the regulations, in the conduct of manual handling claims.
