Personal injury law

Risk assessment under the Manual Handling Operations Regulations

Alsop v Sheffield City Council, CA (Lords Justice Mantell and Kennedy), 5 March 2002

The claimant dustman was moving a wheelie bin up a steep ramp.

As he did so he slipped and fell, suffering injury.

He chose to pull the bin up the ramp and did not use some steps nearby or go to the end of the ramp which was 'a relatively short distance' away.

The judge at first instance dismissed the claim, as did the Court of Appeal.

The case was run on the basis that the defendants had failed to give sufficient instruction to the claimant on how to use the bins and what to do with them when confronted with the sort of problem that faced the claimant.

Sheffield is built on seven hills, and this is a problem that is more frequent than one may imagine.

The council did not carry out a risk assessment of the task under regulation 4(1) of the Manual Handling Operations Regulations 1992.

Lord Justice Mantell adopted the approach of Lady Justice Hale in Koonjul v Thames Link Health Services [2000] PIQR 123 and her 'element of realism' in considering risk assessment.

He found that, if an assessment had been done, the defendants would have simply informed their workers to use their 'common sense' when moving wheelie bins from one place to another.

Lord Justice Kennedy found that the employer is entitled to have regard to the 'experience of the employee said to be at risk'.

The approach of Lady Justice Hale to risk assessment is worrying.

The regulations are clear that a risk assessment shall be carried out.

The principle of reasonable practicability only applies in relation to avoiding the need of employees to undertake manual handling operations.

This was clearly set out in the decision of Lord Justice Robert Walker in Swain v Denso Marston Ltd, CA, 12 April 2000.

Unfortunately, Lady Justice Hale in Koonjul decided to adopt a non-European approach to risk assessment and returned to the common law approach first stated by Sir Christopher Staughton in Hawkes v London Borough of Southwark (1998) unreported, that the requirement to carry out a risk assessment is 'merely an exhortation with no sanction attached'.

The realism test can be used to defeat claims on the basis that even if a risk assessment has been performed, it would not have had an effect on the cause of the claimant's accident.

The burden seems to shift from the employer to the claimant to prove that the task that they were performing was something beyond an everyday task or routine.

In other words, an employee will have to show that he could not figure it out for himself.

This, of course, is the approach of Lady Justice Hale in the occupational stress case of Sutherland v Hatton, 5 February 2002; [2002] EWCA Civ 76 (see [2002] Gazette, 28 March, 32) in which she did not even consider risk assessment.

In conclusion, the Court of Appeal seems to be on the march back to the old common law approach to health and safety at the expense of the more enlightened European way.

Occupational stress after Sutherland

Young v The Post Office, CA (Lord Justice May and Lady Justice Arden), 30 April 2002

The words 'I need some help' featured in a memorandum from the claimant to his employers prior to his contraction of depression.

Despite a clear message that he was struggling, the psychiatrists in the case jointly agreed that there was no foreseeable risk of psychiatric illness from the work that he was doing at the time that he wrote the memorandum.

Having had a period off work, and, like in Walker v Northumberland County Council [1995] 1 All ER 737, being promised a much more pleasant working environment on his return, Mr Young had a further episode of illness or 'cracked' to use the term adopted by Lord Justice May.

He succeeded in his claim for damages arising out of the second episode.

This is the first decision from the Court of Appeal in an occupational stress case following the important decision in the cases headed by Sutherland v Hatton and the judgment of Lady Justice Hale.

The issues in the instant case were twofold:

l Is it the responsibility of the claimant to notify the employer if he is finding the working environment stressful or cannot cope?

l Can a claimant be contributorily negligent for failing to bring his circumstances to the attention of his employer?

In relation to the first question, the defendants had offered what seemed like a remarkably flexible working environment for him to return to.

He could work the hours that he wished and go out for a walk if he chose.

In fact, he was not obliged to do any work at all.

However, the employers did not monitor what happened to Mr Young on his return and did not assess his suitability and prevent him from going on a training course, which he found extremely stressful.

Additionally, he ended up, through the absence of another manager, back in the management role that had caused his problems in the first place.

The court did not criticise Mr Young for failing to mention his increasing stress levels to the employer because he was accepted as a conscientious worker who would try to do the best he could.

The court held that he should not be criticised for doing so.

Lord Justice May found that while accepting Lady Justice Hale's view that because of 'the very nature of psychiatric disorder, it is bound to be harder to foresee than is physical injury', it was 'plainly foreseeable that there might be a recurrence if appropriate steps were not taken when he returned to work.

The employers owed him a duty to take such steps'.

In respect of contributory negligence, the defendants contended that Mr Young created his own burden by doing stressful work and choosing not to notify his employers that he found it so.

In dismissing the allegation, Lord Justice May said that while it was 'theoretically possible' for a finding of contributory negligence in cases of psychiatric illness, it would be unusual.

Employers cannot expect an employee who is known to be vulnerable to be responsible for recurrent psychiatric illness, even if he fails to tell them that his job is once more becoming too stressful.

This decision offers some hope for cases in which the claimant suffers a second bout of illness (a Walker claimant).

It demonstrates that, despite Sutherland, there are instances in which the burden has not completely shifted onto the mentally ill claimant to resolve his difficulties.

An employer, knowing of an employee's mental state, is under an obligation to not only design a less stressful working environment but to ensure that it is implemented.