Stewart v Lewisham and Greenwich NHS Trust [12.12.2017]
12/04/2018
The positon that employers have a duty to conduct a risk assessment only where the task presents a “real risk” of injury continues to be tested in the courts. In a recent Court of Appeal decision, where we acted for the defendant NHS Trust, the Appeal judges upheld the finding that there was no need for the defendant to conduct a risk assessment in the absence of a real risk of injury.
The claimant, a community midwife, injured her back while lifting an oxygen box containing various equipment required at home births. She argued that, under Regulation 4 of the Manual Handling Operations Regulations 1992 (the accident took place pre 01.10.13) and common law, lifting the box was sufficiently hazardous to require a risk assessment.
Authority
In Koonjul v Thameslink Healthcare Services [2000], Hale LJ (as she was then) confirmed that the requirement under Regulation 4 to conduct a risk assessment only arises where there is a “real risk, a foreseeable possibility of injury”. In identifying whether there is a real risk of injury, she referred to the HSE risk assessment filter which “help to identify those manual handling operations deserving more detailed examination”.
In Stewart, the Appeal judges endorsed the trial judge’s practical and common sense interpretation of the lifting and lowering risk filter in Appendix 3 of the HSE Guidelines, where the oxygen box fell between the 7kg and 13kg zones on the filter. Taking into account the design and weight of the oxygen box (7.5kg-8kg) and the absence of any complaints, suggestion or evidence that it had posed any difficulties for midwives of any age over a number of years of regular use, the trial judge was not satisfied, on the balance of probabilities, that any risk assessment was required.
The claimant had been properly trained and, in cross-examination, accepted she could not think of any further training which would have helped. She accepted she had to make her own assessment of what was to be lifted and decided to “scoop up” the oxygen box - despite it being fitted with a handle as well as a strap - with both arms underneath it, her knees bent and her back straight. She agreed it was obvious that the handle was there to lift it by. The Appeal judges held that the trial judge’s finding that there was no real risk of injury was a factual conclusion with which the Court of Appeal could not interfere.
Comment
The judgment reinforces the position that if, and only if, the task involved a real risk of injury, does the obligation under Regulation 4 arise, and that the burden of proof is on the claimant. When faced with an allegation that there was a failure to carry out a detailed risk assessment therefore, we must first consider whether the operation constitutes a “real risk” of injury, and not assume that there must have been a risk, just because it resulted in injury.
In Stewart, having found there was no breach of duty, the trial judge did go on to find that there was a reason that the claimant had suffered a back injury whilst performing the task, notwithstanding it was reasonably safe. This was due to a pre-existing degenerative back condition, which was unknown to both parties.
This decision is the latest in a number of claims of this nature having failed at the first hurdle: Rozario v The Post Office [1997] PIQR P15 (repeatedly lifting boxes weighing 10.26kg from 4-5 inches – no foreseeable risk of injury); Koonjul v Thameslink Health Services [2000] (bending to manoeuvre a low bed did not involve a real risk); Alsop v Sheffield County Council [2002] (no real risk arising from moving wheelie bins up and down a ramp); and Brazier v Fairway Ltd [2005] (no real risk of injury from lifting a wooden pallet from a stack).
The judgment is a useful reminder that the HSE Guidelines are not designed to be interpreted strictly, and if the history and circumstances of the operation indicate that no risk exists, then an operation that fell within an intermediate zone between boundaries will not automatically constitute a need for a detailed assessment.
