When is risk not a risk?Apr 11, 2019
The Court of Appeal Case Review:
The Court of Appeal has recently examined the duty of an employer to carry out risk assessments in the context of manual handling operations.
The Claimant in question was Mrs Rhonda Stewart who was employed as a Community Midwife by the Lewisham & Greenwich NHS Trust.
In 2010 Mrs Stewart injured her back whilst “scooping up” a piece of equipment called an Oxygen Box. This was a plastic carry case containing an oxygen cylinder and other equipment needed for home births. It weighed between 7.5kgs to 8kgs. This box was used frequently so was lifted, moved and carried all the time. Up until this occasion the Claimant had not had any problems neither had any other problems been reported. Another significant factor was that unbeknown to Mrs Stewart she did have a vulnerable back. Although it had not caused any problems before this incident.
Under the Manual Handling Regulations, the starting point is that an employer must try to remove the risk of injury through manual handling.
What happened Next?
In this case it was agreed that it wasn’t reasonably practicable to avoid the need to lift the box altogether.
Mrs Stuart therefore argued that her employer should have carried out a risk assessment as lifting the box involved a risk to her being injured. The employer’s case was that they simply had not carried out a risk assessment because they didn’t think it was necessary to do so. The box was designed to be lifted by the handle and not scooped up from underneath. It had been used for many years without any problems. They also argued that its weight was modest and so there was no indication of risk in accordance with the manual handling guidance published by the HSE.
The Court of Appeal reminded itself that the risk assessment duty only really arose where there was a real risk of injury. This must be a real risk a foreseeable possibility of injury not necessary a probability. An employer also has to anticipate that an employee may not always be as careful as they should be. However, that has to be tempered by an element of realism.
The Appeal Court agreed with the Trial Judge that given the nature of the design and weight of the box, the absence of complaints and the use of the box without incident over many years, that there was no need to carry out a risk assessment. Especially bearing in mind the weight of the box and the HSE guidance. The Court of Appeal also agreed that the real cause of the Claimant’s accident was the fact that she had a vulnerable back. Neither she nor her employer knew that she had a vulnerable back. Therefore there was no need to carry out a risk assessment. Under the circumstances the employer was not in any breach of duty to the Claimant.