Court provides clarity on manual handling risk assessment rules
Law firm Penningtons Manches LLP has reported on the Court of Appeal judgment in the case Stewart (now White) v Lewisham and Greenwich NHS Trust  EWCA Civ 2091.
The claimant was a community midwife who suffered a back injury whilst lifting a “day to day” item of equipment. Her lawyers argued that the requirement for her to lift and carry the equipment involved a risk of injury and that a risk assessment should have been performed under the Manual Handling Operations Regulations 1992.
The appeal judges held that the trial judge’s conclusion that there was “no real risk of injury” was a factual conclusion which he was entitled to reach on the evidence and that the Court of Appeal should not interfere.
‘Real risk’ of injury required
The Court of Appeal upheld that it was for the claimant to prove that the manual handling operation presented a ‘real risk’ of injury and that only once that ‘real risk’ had been demonstrated would the risk assessment obligation become applicable.
Philippa Luscombe, Partner at Penningtons Manches LLP commented:“While anyone would feel some sympathy with the claimant who suffered a back injury at work, both the court at first instance and the Court of Appeal, in my view correctly, gave a clear statement that the fact that an injury occurs at work does not necessarily mean that an employer is liable.
Key factors in this case were that the box was not particularly heavy and had a handle, which the claimant did not use, that the box was frequently carried by staff and that no one had previously suffered such an injury.”
Consistent with HSE Policy
This judgement by the Court of Appeal appears consistent with HSE Guidance to Inspectors which states:“When considering whether a manual handling operation “involves a risk of injury” and when determining appropriate risk reduction measures, MHOR reg. 4(3) applies. Reg.4(3) requires that regard shall be had to: the physical suitability of employees; clothing / footwear / personal effects they are wearing; their knowledge and training; the result of any relevant risk assessment under MHSWR 1999, including whether they are identified by that assessment as being especially at risk; and the results of any health surveillance under MHSWR reg 6.
If there is no evidence of any risk of injury then reg.4 will not apply. Deciding the presence and degree of risk will be a matter of judgement in each case, with regard being had to the factors identified above. The Regulations do not set out the steps employers must take to reduce the risks to their workers. HSE’s general guidance includes some steps that employers will wish to consider in the light of the assessment but it is up to employers to choose the appropriate measures.”Manual handling risk must be ‘real’