Barrister Robert Spicer examines the case law dealing with injury after manual handling, and risk assessments.
Back injury and pre-existing condition
The Court of Appeal heard the case of Stewart v Lewisham and Greenwich NHS Trust (2017).
The facts were that S, a midwife, was injured when she lifted an oxygen box weighing 8kg. This was a very frequently used piece of equipment. The box was designed to be lifted by its handle. No risk assessment had been carried out in relation to manually handling the box. S picked up the box by putting her hands underneath it. She suffered a back injury and it was later discovered that she suffered from a degenerative back condition. S alleged that lifting the box needed a risk assessment under the Manual Handling Operations Regulations 1992.
At first instance, her claim for compensation was dismissed. She appealed to the Court of Appeal.
That court dismissed the appeal and made the following points.
There had been no real risk of injury and no detailed risk assessment was required.
There was no evidence that handling of the box had given rise to difficulties or complaints over many years.
The lifting operation was not risky for any normal person but S’s pre-existing condition had been triggered.
The box’s weight was well within the boundary stated in HSE guidance within which it was unlikely to create a risk of injury sufficient to warrant a detailed assessment.
Injury from pushing wheelchairs
Sloan v The Governors of Rastrick High School (2015) was another that went to the Court of Appeal for judgment.
S was employed by G as a learning support assistant. Her work involved pushing students who used wheelchairs between classrooms and other parts of the school. After pushing one student she experienced pain in her shoulder and back. Her GP prescribed pain relief and muscle relaxants. She returned to work and was not required to push wheelchairs. She left her employment and claimed compensation under the Manual Handling Operations Regulations 1992, in terms of the fact that her employer had failed to:
avoid the need for her to undertake a manual handling operation which involved a risk of injury
make any suitable and sufficient assessment of such manual handling operations
take any or any appropriate steps to reduce the risk of injury arising out of such operations to the lowest level reasonably practicable.
At first instance, the claim was dismissed. S appealed to the Court of Appeal. That court dismissed the appeal and made the following points.
Although the trial judge had misdirected herself as to the burden of proof, which lay on the employer, that misdirection had not undermined the judge’s findings and conclusions. These were made on the evidence as a whole. The judge’s findings were not influenced by any question of the burden of proof.
It was clearly correct on the evidence for the judge to find that it was not reasonably practicable to avoid the use of manual wheelchairs in the school. Annual risk assessments were made for each student who needed to use a wheelchair.
It was nit-picking to criticise the judge for stating only that the risk assessment was suitable and failing to say that it was sufficient.
The evidence amply justified the conclusion that the risk assessments were prepared by a suitably qualified and experienced individual.
There had been full and adequate training for S. The evidence fully justified the judge’s conclusion that the school had taken appropriate steps to reduce the risk of injury to the lowest level reasonably appropriate.
Collision with trolley
In Postle v Norfolk & Norwich NHS Healthcare Trust (2000) P, a nurse employed in the accident and emergency department of a hospital operated by N, suffered a back injury at work.
The accident happened when a patient collapsed and was placed on a trolley. Another nurse pulled the trolley which swung round and struck P. She claimed compensation from N in negligence and for breach of statutory duty under the Manual Handling Operations Regulations 1992.
It was argued on behalf of N that the 1992 Regulations did not apply because P had not been carrying out a manual handling operation. The county court ruled that the regulations did apply. If their application was restricted in the way argued on behalf of N, this would mean dividing a single operation into distinct component parts. Each nurse would be treated as being subject to the regulations only at those moments when they were physically active in manually handling a load. However, N had not been in breach of the regulations. A suitable and sufficient risk assessment would not have recognised the risk of injury to one nurse from another nurse pulling a trolley.
Injury from using mechanical hoist
The case of Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust (2009), also went to the Court of Appeal.
E, a nurse, was injured when a mechanical hoist, which she had been using to transport a disabled patient into a bath, stopped suddenly when the wheels of the hoist jammed. E suffered a jerking injury to her back and claimed compensation for a breach of the 1992 Regulations. No risk assessment was in place. It was found that the hoist had not malfunctioned but had perhaps jammed due to the placement of the forks.
The Court of Appeal decided that the employer was liable. It made the following points.
Where a hospital worker was injured using a mechanical hoist to move a patient, the burden was on the employer to prove that it had taken appropriate steps to reduce any risk to the lowest reasonably practicable level.
A risk assessment would show an employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable.
Where, as in this case, no risk assessment had been carried out, once it had been shown that a manual handling operation carried some risk of injury, then the burden of proof was on the employer to prove that it had taken appropriate steps to reduce any risks.
Each party had caused the injury in that, if either had taken proper care, the accident would probably have been avoided. They should share responsibility equally, so that the employer was liable for 50% of the compensation.