O'Neill v DSG Retail Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nelson,Lord Justice Chadwick |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1139 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2001/1326 |
| Date | 31 July 2002 |
[2002] EWCA Civ 1139
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
HER HONOUR JUDGE PEARCE
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Chadwick and
Mr Justice Nelson
Case No: B3/2001/1326
Simon Michael (instructed by Messrs Austins of Luton) for the Appellant
Rohan Pershad (instructed by Messrs Beachcroft Wansbroughs of London) for the Respondent
This is an appeal against the decision of Her Honour Judge Pearce dismissing the Appellant's claim for damages for personal injuries in a judgment given at the Luton County Court on the 1 st June 2001. Permission to appeal was granted by Lord Justice Keene save in respect of Ground 5, which sought to overturn a finding of fact made by the Judge. An application to amend the Appellant's notice was made at the commencement of this appeal. Permission was given by this Court for an additional ground A1 to be added. The Grounds allege that the Judge failed to consider, or make findings as to, the applicability or breach of the Manual Handling Operations Regulations 1992, confused the concepts of foreseeability and causation, and came to conclusions on the issue of causation which were not reasonably open to her on the evidence.
The Facts.
The Appellant was employed by the Respondent as a warehouse manager at its Curry's superstore at Eldergate, Milton Keynes. The Appellant's work included the stacking and moving of electrical goods. On the 10 th March 1997 there was to be a visit by the company's directors, and in preparation for this, the Appellant was moving a stack of about 100 microwave ovens in order to tidy the warehouse. The microwave ovens, each of which weighed between 15 – 20 kgs, were only being moved a short distance. The Appellant was performing the task himself by manual lifting, carrying and repositioning. Trolleys and sack trucks were available for his use, but he felt that it would have been a hindrance to use them; so he did not do so. After moving a number of the microwaves without difficulty, the Appellant was carrying another box, in the same manner as he had carried the others, holding it by the push handles about waist high, when he heard a call from one of his work colleagues. He turned towards the direction of the call, which had come from behind him, by twisting his body some 70—80°. He did not move his feet. As he twisted his body in this manner, he felt a sharp pain on the left side of his back which, on the agreed medical evidence resulted in tears of two discs in his lumbar spine.
The Appellant was aged 24 at the time of his accident and had been working as warehouse manager for the Respondent since September 1996. Before that he had been a civilian maintenance operative for the Luton Police Force and had then trained as a plumber. He acquired his City and Guilds and was apprenticed on building sites where he carried out all kinds of plumbing, involving some heavy lifting. During this period he acquired knowledge and awareness of the principles of manual handling. After that he worked as a senior systems clerk at a warehouse in an administrative capacity, but acquiring a sound knowledge of the process of receiving and despatching goods at warehouses. He was, prior to the accident, a fit active young man who attended a gym and did weight training regularly.
The Respondent issued its new employees with a staff handbook and a Health and Safety handbook. Clearly the work at the warehouse would involve manual handling and the Health and Safety handbook gave some guidance on lifting and handling. The Respondent established a colour-coded system by which products were marked with either green, amber or red stickers according to their weight. Microwaves of some 15 – 20 kgs came within the amber coding and were described as products which could be generally carried between knee and shoulder height by one person. Factors which affected the risk of manual handling were described, for example, as holding the product away from the body or excessive twisting of the trunk. The Respondent carried out a manual handling risk assessment in accordance with the Health and Safety Regulations. The October 1995 risk assessment stated that products between 10 and 20 kgs 'may present a hazard if held away from body, from excessive twisting of trunk, overstretching or lifting on steps or slopes. One person lift between knee and shoulder height (load held close to body)'. All staff had to be 'trained to understand and observe good handling techniques wherever possible. In particular staff should understand the effects of the following…twisting the body while supporting a load…' 'Ensure all staff have been trained and have seen the company video 'Think before you lift', and the 'Traffic Light' poster is displayed'.
The Respondent also produced a document entitled 'Stockroom Best Practice' which set out the colour coding system under the heading 'Traffic Light Classification'. This document contained both the instructions and the pictorial representation which are set out in the HSE Guidance on the Manual Handling Operations Regulations 1992. These instructions in the Stockroom Best Practice stated that one of the factors which affected the risk of lifting was 'twisting your body whilst supporting a load.' It gives advice as to good handling techniques including stopping and thinking, planning the lift, placing the feet properly, adopting a good posture, and under item 6 advises' move your feet – don't twist the trunk when turning to the side'.
Mr Chavda, the Respondent's store manager, said that there were four posters set in various areas of the warehouse including the canteen and rest room which referred to the colour coding system and advice on lifting.
The Judge found as a fact that the Appellant had been given a copy of the Stockroom Best Practice document by Mr Chavda, and that the posters as described by Mr Chavda were in position at the Respondent's premises.
It was conceded by the Respondent that, in breach of their own policy, the Appellant had not been given practical training, nor had he been shown the video. The purpose of the training was to reinforce the risks involved in lifting and make employees aware of them by watching demonstrations of safe lifting and then practising such techniques themselves. The video contained demonstrations of safe lifting carried out by a famous sportswoman. It also contained material designed to train people out of the instinct to twist when carrying a load.
In his claim the Appellant alleged negligence and breach of the Manual Handling Operations Regulations 1992. Breach of regulation 4(1)(a) and 4(1)(b)(ii) were alleged. The relevant regulations are as follows:—
"4.(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, having regard to the factors which are specified in column 1 of schedule 1 to these regulations and considering the questions which are specified in the corresponding entry in column 2 of that schedule,
(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,…"
It is the duty under regulation 5 of each employee whilst at work to make full and proper use of any system of work provided by his employers under 4(1)(b)(ii). Schedule 1 sets out the factors to which the employer must have regard and the questions he must consider when making an assessment of manual handling operations. Thus the employer must ask himself whether the tasks involved, for example, 'holding or manipulating loads at distance from trunk' or 'unsatisfactory bodily movement or posture, especially twisting the trunk, stooping, reaching upwards', or 'excessive movement of loads, especially, excessive lifting or lowering distances, or excessive carrying distances.'
The Appellant contended at trial that the Respondent was in breach of regulation 4(1)(a) as it failed to avoid the need for him to undertake the manual handling of the microwaves when that activity was a task which involved a risk of his being injured. Breach of regulation 4(1)(b) was also alleged on the basis that the Respondent failed to make a suitable and sufficient assessment of the task of manual handling, in particular having regard to the fact that the Appellant had had no manual handling training and that the warehouse was extremely full, so that the goods had to be lifted from above shoulder height and below knee height. There were in addition space constraints and the goods were heavy. Further, it was alleged that the Respondent had failed to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable arising out of the lifting and movement of the microwave oven, in particular by failing to institute a system to prevent the warehouse being overfilled, or train or instruct the Appellant adequately in safe lifting techniques or in the recognition of techniques or circumstances likely to cause him injury, such as twisting his trunk quickly while carrying a heavy load.
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