King v Sussex Ambulance NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Buxton,The President |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWCA Civ 953 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2001/1618 |
| Date | 05 July 2002 |
[2002] EWCA Civ 953
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY
OF LONDON COUNTY COURT
(HIS HONOUR JUDGE COX
Royal Courts of Justice
Strand,
London, WC2A 2LL
The President
Lord Justice Buxton and
Lady Justice Hale
Case No: B3/2001/1618
Patrick Vincent (instructed by Morgan Cole) for the Appellant
Christopher Goddard (instructed by Pattison & Brewer) for the Respondent
The Sussex Ambulance Service appeal against the order of His Honour Judge Cox, made on 5 July 2001 in the Lambeth County Court, giving judgment against them for some £34,000 for injuries sustained by one of their ambulance technicians when carrying a patient downstairs. It raises the difficulty of reconciling the ambulance service's duties towards a patient with their duties towards their employees.
Facts
On 2 November 1996, the claimant and a colleague, Mr Criddle, were sent to collect a patient from a cottage in Seaford and take him to hospital. The call had been assessed as urgent, requiring a response within an hour, but not an emergency. The patient was an elderly man in his late sixties or early seventies. His weight was variously estimated at 10 to 12 or 13 to 14 stone. He was upstairs in bed. The cottage stairway was narrow and steep and had a bend in it
The judge held that the crew were working as a team with neither in charge. They decided to take the patient downstairs in a carry chair. This is an upright chair with a carrying rail at the back, wheels on the back legs, and carrying handles on the front legs. The claimant carried the back of the chair and was thus walking forwards down the stairs bearing most of the weight. Mr Criddle carried the front facing the patient and was thus walking backwards down the stairs. There was a dispute as to what, if anything, happened on the stairs. The judge accepted the claimant's evidence that Mr Criddle experienced a sudden pain as they came down the stairs and loosened his grip on the front of the chair, leaving the claimant to bear its whole weight for a brief moment. The claimant suffered jarring injuries to his thumb, back and knees.
There were two reports from Mr Hayne, a jointly instructed ergonomic expert. He pointed out that 'it has to be recognised that there is often a conflict between the care of the patient and the safety of the crews'. The problem of carrying patients up and down stairs, particularly if the patient was heavy and the stairs were narrow or steep, had still not been satisfactorily resolved. The equipment manufacturers had not yet found an ideal solution. The task undertaken here was clearly hazardous. The claimant would have taken about 56% of the load. If the patient weighed 12 stone, his share would have been 104 lbs if held close to his chest. Going downstairs, leaning forward as he descended, it would be the equivalent of 156 lbs at least. If there was a sudden increase in the load, the injury was not at all surprising. It was clearly foreseeable.
The difficulty was that there was no other suitable piece of equipment available for this particular task. In his supplementary report, Mr Hayne concluded that 'short of removing an upstairs window and getting the Fire Brigade to lift the patient out on a crane, the only practical option available was to have used a carry chair.' He suggested that the best way to do it was to take the chair down one step at a time, resting the rear wheels on each step and giving the claimant a break if needed. At the trial it emerged that this would not have been possible because the treads were too narrow. It was also agreed that there would not have been room on the stairs for another crew to help bear the weight.
The possibility of using the fire brigade, or any other third party, to effect the task was not mentioned in the pleadings. It only assumed prominence during the trial as it became clear that there was no other alternative to using the chair in the way that they had done. Mr Criddle's evidence was that he had considered it briefly but not mentioned it to the claimant. He might have done if the patient was too big to get out of the door or grossly overweight. In his witness statement he said that 'We only really do this as a last resort as it distresses patients and there is no way of avoiding some element of manual handling even in that situation.' The oral evidence of Mr Layhe, divisional commander at the time, was that the option had always been available to the service. He was not aware that crews were discouraged from thinking of it. But he only knew of about three occasions when it had been done, when the patient was too big to be taken downstairs. Such jobs had to be planned very carefully and took 'an awfully long time to execute'. He doubted whether he would have made the decision to call the fire brigade from what he knew of the circumstances in this case. There was no other evidence, for example, of what the attitude of the patient or his wife would have been to this suggestion, or of the likely response of the fire brigade if they had been called.
The Manual Handling Directive and Regulations
The pleadings alleged breach of the Manual Handling Operations Regulations 1992, regs 4(1)(a) and 4(1)(b), the Provision and Use of Work Equipment Regulations 1992, regs 5(1) and 5(3), and negligence. So far as material, regulation 4 of the Manual Handling Operations Regulations provides:
"(1) Each employer shall—
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, …
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable,.."
At trial, an amendment was permitted to allege breach of the Manual Handling Directive 1990, 90/269/EEC, Art 3:
"1. The employer shall take appropriate organisational measures, or shall use the appropriate means, in particular mechanical equipment, in order to avoid the need for manual handling of loads by workers.
2. Where the need for manual handling of loads by workers cannot be avoided, the employer shall take the appropriate organisational measures, use the appropriate means or provide workers with such means in order to reduce the risk involved in the manual handling of such loads, …."
'Manual handling of loads' is defined in Article 2 to mean:
"… any transporting or supporting of a load, by one or more workers, including lifting, putting down, pushing, pulling, carrying or moving of a load, which, by reason of its characteristics or unfavourable ergonomic conditions, involves a risk particularly of back injury to workers."
The Service accepted that, as they are an emanation of the State, the Directive was directly effective to give the claimant rights against them. They did not and do not accept that there is any material difference between the Directive and the Manual Handling Operations Regulations.
The decision under appeal
The judge held that there had been a breach of Article 3.2 of the Directive. Calling the fire brigade should have been given more serious consideration than it was. Mr Criddle should have followed up the idea and consulted the supervisor. Training should have emphasised this alternative to the use of the chair when using the chair was a serious hazard. Instead it was regarded as a last resort. The mindset of those administering the service at this time was to discourage it. He concluded that 'the emphasis was so heavily upon the last resort of the ambulance service that there is in that, as well as in the actions of Mr Criddle, a breach of Article 3.2 of the Directive.' Having reached this conclusion the judge did not consider liability either under the Regulations or in negligence.
The appellant Service challenge the judge's decision under the Directive. The claimant has filed a respondent's notice seeking to uphold the judgment, not only on the proper interpretation and application of the Directive, but also on the grounds (1) that there was also a breach of the Regulations, and (2) that the Service is either vicariously liable for Mr Criddle's negligence in failing to follow up his idea of using the fire brigade or itself negligent in discouraging reference to the fire brigade. He did not pursue a further allegation, raised in the pleadings and skeleton argument but not in the respondent's notice, of a breach of the Provision and Use of Work Equipment Regulations 1992.
Manual Handling
The appellant challenges the judge's finding that the ethos of the service was to discourage use of the fire brigade. There is nothing wrong in regarding it as a last resort, provided that it is available when appropriate. The evidence was that this option had always been available and was not discouraged. Crews were trained to consider it. Indeed Mr Criddle did do so but rejected it. Mr Layhe, the supervisor who gave evidence, would have done the same had he been on duty and consulted that day.
It would have been rejected because it was not appropriate. The judge did not consider whether or not it would have been so. 'Appropriate' must mean something more than a theoretical possibility. It...
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