Last reviewed 24 February 2020
A Scottish court has given some guidance on the relationship between the Manual Handling Operations Regulations 1992 and the Enterprise and Regulatory Reform Act 2013. This relationship remains far from clear, reports Robert Spicer.
The case of Dehenes v T Bourne and Son
The facts, in summary, were that D, a driver and porter, claimed compensation from TB, his removal company employer, for injuries suffered as he was manoeuvring heavy machinery.
He had been instructed to move analysing machines, each of which weighed 250kg, to Heathrow Airport. D and three workmates, one of whom was a team leader, loaded each machine manually onto a pallet. D was walking backwards, holding a corner of a machine with his arms straight out in front of him, when he tripped over a pallet. He let go of the machine, which fell onto his hand.
D claimed that TB had breached its common law duty to take reasonable care, was vicariously liable for the team leader’s failure to carry out a suitable and sufficient risk assessment and that manual handling could have been avoided by the use of a hydraulic lift. A suitable and sufficient risk assessment would have highlighted that lifting a heavy load in a confined space would create a risk of injury.
The Scottish Sheriff Court decided that TB was liable. It made the following points.
D was a credible and reliable witness who had proved that the incident happened as he described. His expert witness in ergonomics was wholly credible and reliable.
The relevant risk assessment was superficial. It did not represent a suitable and sufficient risk assessment for the purposes of the Manual Handling Regulations 1992.
The use of a hydraulic lift would have reduced manual handling to the lowest level reasonably practicable.
It was not possible for D to rely on a direct breach of the Manual Handling Operations Regulations 1992 because of the Enterprise and Regulatory Reform Act 2013. However, it was still relevant to consider TB’s obligations under the 1992 Regulations in considering the scope and standard of care of duty owed.
The manual handling operation in the present case plainly involved a foreseeable risk of injury. The risk assessment was neither suitable nor sufficient and TB had not taken reasonable care for D’s safety.
There was no contributory negligence. The reality was that D had been placed in a very difficult position and had been fearful of losing his job if he did not continue.
Compensation of £28,500 was awarded.
The Enterprise and Regulatory Reform Act 2013
The Enterprise and Regulatory Reform Act 2013 had the general effect of removing injured workers’ rights to claim compensation in the civil courts for breaches of specific health and safety regulations. This includes the Manual Handling Operations Regulations 1992. It appears that, as a result of the 2013 Act, injured workers must now rely on the common law of negligence to claim compensation and cannot simply rely on breaches of health and safety regulations. The decision in the Dehenes case appears to have ameliorated this position. The Scottish court made it clear that specific regulations can be considered in relation to claims of negligence.
A previous case
A comparable case, which predates the Act of 2013, is the Court of Appeal decision in Parr v Gravaton Engineering Systems Ltd (2007). The facts, in summary, were that P, an employee of G, suffered a back injury when moving four large and heavy machines at work. Three of the machines weighed up to 3.1 tonnes. The machines were unloaded by a crane onto a roller device. This device was fitted with a steering mechanism. The machines had to be moved approximately 70ft and involved negotiating a 90° bend. P was at the back of the device, pushing it. He claimed compensation for a breach of regulation 4 of the Manual Handling Operations Regulations 1992.
At first instance the judge ruled that the work was outside the scope of P’s normal duties. Expert evidence was given that the force needed to start the machines moving, and keeping them on the move, exceeded Health and Safety Executive manual handling guidance by between two and four times. A detailed risk assessment had been necessary and had not been carried out. An adequate risk assessment would have revealed the need to take steps to reduce the amount of force required. This could have been accomplished, for example, by rotating personnel or using more experienced and trained operators.
On behalf of the employer it was argued that the method which had resulted in P’s injury was standard and had been used many times without causing injury. This argument was rejected and the employer was found to be liable. The employer appealed to the Court of Appeal.
That Court dismissed the appeal and made the following points.
A suitable risk assessment should have been carried out.
The risk in any manual handling operation is variable.
Relevant factors in relation to manual handling include the age and capability of workers, the length of time for which physical effort is required and the type of operation being performed.
As part of the risk assessment, the employer could have considered other methods of moving the machines. These alternatives could have included the use of a fork lift truck or specialist trainers, and not allowing the same worker to exert force for a substantial period of time.
The employer had failed to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.
This case illustrates the crucial importance of detailed risk assessments where manual handling operations are involved. The absence of a risk assessment was a key factor in the decision that the employer was liable.
A witness for employer gave evidence that he had carried out an on-the-spot assessment and had decided that the safest way to move the machines was by means of the roller device. This was insufficient because it did not examine the details of the work involved.