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Egan v Central Manchester & Manchester Children’s University Hospitals NHS Trust, Court of Appeal, 15 December 2008

9 February 2009
The issues

Manual handling – Manual Handling Operations Regulations 1992 Regulation 4(1)(b)(ii) – risk assessment – reasonably practicable steps to reduce the risk of injury – contributory negligence.

The facts

The Claimant worked in the high dependency unit of the Manchester Royal infirmary as a nurse and, from time to time, had to bath disabled patients and use a mobile hoist to transfer patients to and into the bath. In June 2003 she had to bath a female patient. She fetched a mechanical hoist, transferred the patient into it and wheeled the hoist to the bathroom and to the end of the bath. The bath stood on plinths 5 inches high and the Claimant had to manoeuvre the forks of the hoist under the bath, avoiding contact with the plinth which was set back about 17 inches from the end of the bath. From a standing position the plinth was not visible. As she pushed the hoist forward, the hoist suddenly stopped and the Claimant suffered a jerking injury to her back. She brought an action for personal injuries alleging that the jamming had been caused by a defect in the hoist and that the employers were in breach of the Provision and Use of Work Equipment Regulations 1992. She also alleged that the employers were in breach of their duties under the Manual Handling Operation Regulations 1992. A jointly instructed expert engineer found no evidence of any defect in the wheels which could have caused the hoist to stop suddenly and the Judge found that there was no such defect at Trial. The Judge inferred that it was likely that the accident was caused because one of the forks had snagged against the plinth. The Claimant, because of that finding, relied on the Manual Handling Operation Regulations, finding that they applied to the task being undertaken. No risk assessment had been carried out. The Judge accepted that that amounted to a breach of the Regulations. He went on in addition to find, observing in so doing that it was unfortunate that the expert had not been asked what a risk assessment would have revealed about the risk of a collision with the plinth, but it was debatable whether a risk assessment would have said anything about the risk of collision with the plinth, save to warn that there was a plinth there and that it was necessary to take care to align the hoist centrally. The Claimant knew that already and had managed to use the hoist on occasions in the past without mishap. The Judge concluded that the failure to conduct a risk assessment had not been causative of the accident.

The Claimant Appealed.

The decision

The Judge had not given separate consideration to Regulation 4(1)(b)(ii) ie “The need of an employer to 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.” He should have done so because the requirements of the Regulation in this respect were separate from and additional to the requirement to carry out a risk assessment. The two were related and a risk assessment would show the employer what steps it ought to take to reduce the risk of injury to the lowest level reasonably practicable, but they were not the same. Where no risk assessment had been carried out, the Judge ought to focus on the Regulation imposing the duty to take positive action to reduce risk. The Judge should approach that Regulation on the basis that once it had been shown that the operation carried some risk of injury, a burden of proof was on the employer to plead and prove that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable.

There was no duty on the employer to provide a hoist dedicated to this particular bath. The fact that that had been done some time later as part of a modernisation programme did not mean that the failure to do so before the accident was a breach of duty. There was nothing inherently wrong with the manual hoist, which could be used safely. The Claimant had suggested that additional steps that would have been reasonably practicable and would have reduced the risk to the lowest level would have included markings on the floor designating precisely how the hoist legs could be guided around the plinth or bringing the plinth itself forward to the front of the bath and clearly marking it. The employer had not shown that the suggestion or solution would not have been reasonably practicable and such a change would have reasonably reduced the risk injury by collision. Either solution was practicable and would have been of real assistance to the operator. Accordingly, the employer was in breach of its duty and primarily liable for the injury.

As to contributory negligence, the Claimant was to some degree careless. She had not looked sufficiently carefully as to exactly where the forks were going under the bath and had to take a significant share of responsibility for the injury. The fault of each party had caused the injury in that if either had taken proper care the accident would probably have been avoided. The Court found itself unable to distinguish between the two parties when considering blameworthiness, it seeming that neither side could or should be heavily criticised. Accordingly, they would share responsibility equally and the Claimant would be held 50% contributorily negligent.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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