Personal injury law

By Simon Allen, Russell Jones and Walker, Sheffield

Manual Handling Operations Regulations 1992 and reasonable practicabilitySwain v Denso Marston Ltd; Court of Appeal, 12 April 2000; Stuart-Smith and Robert Walker LJJThe Court considered regulation 4 of the Manual Handling Operations Regulations in relation to an accident in which the claimant crushed his finger in moving a roller.

The experienced claimant was the 'resident expert' in respect to plant and machinery.

In removing the last bolt in a solid roller weighing 20 kgs, which he expected to be hollow, it dropped, crushing his finger.

The employer had not done a risk assessment or provided Swain with any information about the roller.Lord Justice Robert Walker, giving the lead decision, considered the link between regulation 4(1)(a) and the subsequent paragraphs within regulation 4(1)(b).

The defendants sought to argue that the concept of reasonable practicability, which applies to regulation (a) when the employers consider the need for an employee to undertake any manual handling operation, also applied to the subsequent paragraphs including the need to supply employees with general indications as to the weight of the load.

This is a basic misinterpretation of the regulations.

Regulation 4(1)(b) is unqualified.

The court thus adopted a more appropriate interpretation of the Regulations to that of Staughton LJ in Hawkes v London Borough of Southwark, (1998) CA unreported, who felt that the requirement to carry out a risk assessment was 'merely an exhortation with no sanction attached'.

It may be, but it is pleasing to see the Court of Appeal applying the only sanction it can in finding the employer responsible.

Manual handling and the employee's responsibility Koonjul v Thames Link Health Care Services, Court of Appeal, 28 March 2000; Hale LJ and Sir Christopher StaughtonA care assistant suffered a back injury when she bent down to pull a bed away from a wall at a residential home for children.

The bed was 18 inches off the ground because of the nature of its use.

The MHOR 1992 applied but, at first instance, the District Judge found that regulation 4(1) did not apply because there was 'no significant risk of injury'.

No qualification as to 'risk of injury' is referred to in the European Directive but in the UK we have introduced confusion with the contrasting decisions of Aldous LJ in the Hawkes case referring to a 'real' risk and the view expressed in Cullen v North Lanarkshire Council (1998) SC451 that the risk needs to be no more than a 'foreseeable possibility'.In the incident case, the court was however looking for an 'element of realism'.

A disturbing aspect of the case is the court's atavistic approach to the responsibility of the employee.

She was referred to as 'experienced' with Staughton LJ blaming her for the manner in which she carried out the task.

He felt there was no risk within regulation 4(1)(a).

This is worrying.

Having had a more robust approach shown in Swain in which there was criticism of the failure to risk assess and to provide information to enable the employee to properly assess how to perform the task, the same court has returned to its old view that sensible employees do not attempt lifts or movements which are likely to cause them injury.

This shifts the burden back on to the employee.

It is to be hoped that this case does not derail the steady stream of cases that were beginning to reflect the intention of the MHO Directive.