Julia Anne Barton v Ici Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE HENRY |
| Judgment Date | 22 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0422-6 |
| Docket Number | No CCRTF 97/1080 CMS2 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 1998 |
[1998] EWCA Civ J0422-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE CHARLES JAMES
Royal Courts of Justice
Strand
London WC2
Lord Justice Henry
Lord Justice May
No CCRTF 97/1080 CMS2
MR A GEORGES (Instructed by Whittles of Manchester) appeared on behalf of the Appellant
MR P FIELD (Instructed by Hammonds Suddards of Manchester) appeared on behalf of the Respondent
This is an appeal by the plaintiff Julia Barton from the judgment of His Honour Judge James given at Manchester County Court on 11th July 1997 when he dismissed her action for personal injury against her employer, ICI plc.
The plaintiff was aged 30 years when she returned on 28th October 1991 to her work as a packer with the defendants in Macclesfield. She had a four-month period or so away from work during which she had a baby. About a month later, on 21st November 1991, she suffered in the course of her employment a soft tissue injury to her lumber spine which aggravated a pre-existing back condition of which she had previously had no symptoms and was unknown to her employers. She claimed damages against her employers, alleging that they were negligent and in breach of statutory duty.
An intermittent part of Mrs Barton's job was to remove plastic bags containing caps for medicine bottles from cardboard boxes which stood on pallets. She did this by bending over, taking the bag in one hand and the box in the other and pulling and at the same time twisting the two around to release the bag from the box. The caps were taken and fed into a hopper. It was while she was pulling one of these bags in this way that she injured her back. She suddenly felt her back go and she ended up on the floor. The particular bag contained about 1200 caps and the judge found that it weighed between 20 and 22lbs. Additional effort was required to overcome
friction to release the bag from its box. The judge resolved a
conflict of opinion over this problem by finding that the total effort and force required was equivalent to that needed to lift about 25lbs. That finding was not challenged. Mrs Barton was performing this task with a bent back.
Her pleaded case was that the defendants were in breach of statutory duty in failing to have a safe system of work, failing to ensure that the plaintiff was able to remove the bag without straining her back, failing to make a proper assessment of the danger of her work and failing to have an adequate system of checking that her system of work would not result in her injury.
Expert evidence called on her behalf concluded that her task could have been made significantly easier if the system had been to cut down the side of the cardboard boxes first to release the bags.
Section 72 of the Factories Act 1961 ("the 1961 Act"), which was in force in November 1991 but has since been repealed and replaced by regulations, provided:
"(1) A person shall not be employed to lift, carry or move any load so heavy as to be likely to cause injury to him."
There was in this case little, if any, difference between the allegation of negligence and the allegation of breach of statutory duty.
There are broad similarities between the facts in this case and those in Whitfield v H & R Johnson Tiles Ltd [1990] 3 All ER 426 where this court held that Section 72 of the 1961 Act was to be construed so that the likelihood of injury related to the weight of the load. For an employer to be liable under Section 72, the weight of a particular load has to be likely, having regard to the nature of the load, the relevant surrounding circumstances and the particular employee's obvious and known characteristics, to cause injury to the employee. Weakness or predisposition to injury in the employee unknown to the employer is irrelevant. The defendants' pleaded case as amended was that they were not negligent or in breach of statutory duty and, in particular, that it was not foreseeable that an employee would be injured lifting a bag of caps from a cardboard box. Their case was that the effort required to remove the bag from the box was not so great as to be likely to cause the plaintiff injury and that the system of work was safe. The defendants pleaded, but did not pursue, an allegation of contributory negligence. The pleaded particulars were that Mrs Barton had been trained and instructed to lay the cardboard box on its side and rotate the bag from side to side to ease them...
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