Barrister Robert Spicer reports on the issue of foreseeable risk of injury in relation to manual handling.
The decision of the High Court in the case of Needle v Swallowfield plc (2020) has given guidance on the issue of foreseeable risk of injury in relation to the Manual Handling Operations Regulations 1992 (MHOR).
The facts, in summary, were that N was employed by S in 1999 as a production worker and then as an engineering technician. His work involved the repair of production line equipment and machinery.
In February 2013, N suffered a fractured finger of his left hand while manually handling an unwieldy disused 48 kg pump. He carried out a large number of tasks and it was accepted that it was not possible for each task to be risk assessed in advance.
N worked on the accessible parts of the pump. He had to manipulate it to work on its underside. The pump had an unevenly distributed weight and was irregularly shaped, comprising hoses, valves and pipework. He lifted the left, lighter side of the pump with his left hand and grasped the right side with his right hand.
He was trained in “dynamic risk assessments”, which meant that skilled and experienced engineers were expected to assess the risks of specific tasks and make their own decisions. The maintenance, servicing and repair of machines and machine parts involved so many different sizes, shapes and weights of equipment that it was wholly impracticable to undertake a specific risk assessment or provide a specific method statement for each one.
N claimed compensation under MHOR regulations 4(1)(a) and 4(1)(b).
Regulation 4(1) (a) imposes a duty to avoid the need for employees to undertake any manual handling operations at work which involve a risk of injury.
Regulation 4(1) (b) imposes a duty to make a suitable and sufficient assessment of manual handling operations.
At first instance the claim was dismissed. The court found that there was no real or sufficient possibility of risk of injury of some sort to hands or wrists when turning or pushing this piece of equipment, so long as employees were warned of the need to apply their experience and skill dynamically to assessing the risk and then to take appropriate care when undertaking an ordinary everyday task, by keeping their fingers out of the way.
N appealed to the High Court. The following points were made on his behalf:
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Given the size, weight and unwieldy nature of the pump, it was irrational and wrong to conclude that the manual handling operation did not carry a risk of personal injury.
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It was also wrong to assess an employee’s training and experience in dynamic risk assessment when assessing the risk of injury. This amounted to a conflation of the initial question of existence of risk with the later question of how the risk might be reduced or eliminated.
The High Court dismissed the appeal and made the following points:
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When courts are assessing risks of personal injury they must take the relevant occupational context into account, including the place of employment and particular employees involved.
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The court below had been entitled to take into account N’s training and dynamic risk assessment in its conclusion that the manual handling operation did not pose a foreseeable risk of injury.
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A different conclusion might be reached in relation to the risk of injury if the worker in question was inexperienced, untrained or tasked with a one-off job as opposed to routine work.
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If an inexperienced or untrained employee had been tasked on a one-off basis with carrying out the kind of operation which was routine to N, the range of considerations involved would be very different and the risk of injury might then be foreseeable.
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In the absence of expert evidence related to the danger posed by the pump, the nature of the forces applied to his arms and hands were not known. The court below had been entitled to conclude that N’s handling did not carry an intrinsic risk of injury.
In the case of Koonjul v Thameslink Healthcare Services (2000), the Court of Appeal came to a similar conclusion. The facts, in outline, were that K was employed as a care assistant in a residential home for children with learning difficulties. She suffered a back injury when she bent to pull a low wooden bed from against a wall. Her claim for compensation under MHOR was dismissed at first instance because the court found that the task resulted in no significant risk of injury. K appealed to the Court of Appeal. That Court dismissed the appeal and stated the following:
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While nothing more than a real risk was required to bring a matter within the scope of MHOR, it was also necessary to consider the background against which the incident had taken place and to assess the alleged obligation in its real context.
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The lower court had been entitled to take into account the fact that this was a small residential home with a small number of staff, and K was an experienced employee who had been carrying out similar tasks for many years.
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The court had also been entitled to take into account the fact that K had received prior training in bending and lifting techniques.
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The imposition of a duty to assess each task and to provide guidance as to how those tasks were to be carried out in circumstances where innumerable everyday domestic tasks were involved, would be impracticable.
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In the circumstances, there was no breach of statutory duty. In any event, K would have been 100% contributorily liable.
It is important for employers to look further than risk assessments which are in place. In relation to the foreseeability of injury, contextual evidence is relevant. This may include evidence of a worker’s training, experience, how often the task is performed, the number of potential different manual handling tasks and the size of the employer. The risk of injury is context-specific.
