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King v Sussex Ambulance NHS Trust, Court of Appeal, 5 July 2002

16 July 2002
The issues

Emergency Services – lifting – ambulance man injured when lifting patient.

The facts

The Claimant went with a colleague to collect a patient from a cottage in Seaford, to take him to hospital. It was an urgent call requiring response within an hour and not classified as an emergency call. The patient was a main in his early seventies, weighing somewhere between 12 and 14 stones. The cottage stairway was narrow, steep and had a bend in it. The Claimant and his colleague decided to take the patient downstairs in a carry chair. The Claimant carried the back of the chair and was walking forwards down the stairs, bearing most of the weight. As they descended, Mr Criddle had a sharp pain and loosened his grip, leaving the Claimant to bear the whole weight of the chair briefly. He suffered jarring injuries to his thumb, back and knees. There was no other suitable piece of equipment available.

The evidence was such that there was no other way to do the task than the way in which the Claimant and his colleague had attempted it, short of removing an upstairs window and requesting the assistance of the Fire Brigade. The evidence of a Senior Officer was to the effect that that recourse was a last resort that had only been done on three occasions that he knew of. It was a lengthy and difficult procedure and he doubted whether he would have called the Brigade himself. The Judge found for the Claimant, finding a breach of article 3.2 of the Manual Handling Directive (where manual handling cannot be avoided, the employer should take appropriate organisational measures using appropriate means to reduce the risk involved). He found also that the Claimant should have been better trained to consider the alternative of calling the Brigade.

The Defendant appealed.

The decision

1. Manual Handling

(i) The Judge’s decision was flawed. Even if he was correct to find that there had been a breach of the directive, he failed to establish a causal link between breach and injury. If the Claimant had been trained differently and encouraged to make use of the Fire Service when appropriate, there was nothing in this case that suggests that the Fire Brigade would have been called. In fact, the Fire Brigade option would have been rejected because it was not appropriate.

(ii) It had been argued that there was a false distinction between the directive and the regulation, on the basis that whilst the directive did not refer to what was “reasonably practicable” that was it had to mean when it spoke of taking “appropriate measures” or using “appropriate means” to reduce the risk. It was not necessary to resolve that debate. Certainly, if there was no liability under the directive, there would be no liability under the Regulations and in this case, there was no liability under either. There was nothing to suggest that calling the Fire Brigade would have been an appropriate measure.

2. Negligence

(i) The starting point was that the Ambulance Service owed the same duty of care to employees, as did any other employer. Employees in services which are inherently dangerous, accept the risks inherent in their work but not the risks which the exercise of reasonable care on the part of the employer could avoid.

(ii) The classic statement was that of Swanwick J in Stokes -v- Guest:-

“The overall test is still the conduct of the reasonable prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know;%u2026 where there is developing knowledge, he must keep reasonably abreast of it and not be slow to apply it;%u2026 he must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance upon this the probable effectiveness of the precautions which can be taken to meet it and the expense and inconvenience they involve”.

(iii) To that should be added the statement of Lord Denning in Watt -v- Hertfordshire County Council in that in the context of the Emergency Services, the risk has to be balance against the end to be achieved. “The saving of life or limb justifies taking considerable risk%u2026″ Here there was a balancing of serious injury which contained the risk of ending a career as against “considerable social utility”. The patient’s needs were urgent, although not an emergency. The Ambulance Service had limited resources. Here, there was no evidence of anything that the employer could have done to prevent the risk and no suggestion other than calling upon the Fire Brigade to do the job for them. If calling the Brigade was not appropriate or reasonably practicable for the purposes of the directive or the Regulations, it could not be negligent to fail to do so.

Appeal allowed.


It is a little disappointing that the Court of Appeal did not take the opportunity to deal with the directive point and whether or not reasonably practicable is to be read into it, as this is something of a frequently bedevilling issue for Solicitors.

Secondly, whilst Lady Justice Hale’s words on the importance of Watt are welcome to Emergency Services, it is also worth noting that Lord Justice Buxton expressed some concern about the possible conflicts between that decision and Ogwo -v- Taylor (the case which rejected the so called “Fireman’s Rule”). At paragraph 46, he suggested that at some point in the future the House of Lords might wish to reconsider Watt.

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