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Costa v Imperial London Hotel Ltd, Court of Appeal, 1 May 2012

7 June 2012
The issues

Manual Handling Operations Regulations 1992 – moving hotel bed – training

The facts

The claimant was a chamber maid whose daily jobs included making beds and hoovering underneath them. Each room contained either two or three beds. She did 15 rooms each day and therefore moved something between 30 to 45 beds a day. She worked six days a week.

The claimant had to demonstrate that the breach was a cause of the injury, namely that it would have prevented it

On 9 April she was doing her job in what she said was exactly the same way as she had done it for three years. When she pulled a bed out she felt a sharp pain in her left shoulder and thereafter could not move her arm properly.

She brought a claim under the Manual Handling Operations Regulations, Regulation 4. The judge found that the regulations applied; that there had been adequate initial training but no refresher/continuing training; that there ought to have been such training and that the accident was caused by the lack of it. He also found 35% contributory negligence.

The defendant appealed.

The decision

Moving the beds was a repetitive manual task which involved the risk of the employee being injured. The regulations clearly applied. Regulation 4(1)(b)(i) required a risk assessment. There was such a risk assessment in this case which was exemplary. Regulation 4(1)(b)(ii) required the defendant to reduce the risk of injury to the lowest level reasonably practicable. The judge had rejected the defendant’s case that there had been continuing/refresher training. There was no appeal against that finding. The defendant argued that the judge was wrong to find that the absence of continuing or refresher training amounted to a breach of regulation 4(1)(b)(ii).

The step of providing such training was reasonably practicable. It would have been cheap and easy to do.

The defendant therefore failed on this ground of appeal. The defendant’s remaining grounds related to causation. The test for causation in a case like this was a simple and purely factual one. Was the breach (not necessarily the only) cause of the injury? Either the breach made an impact on the injury or it did not. If it did not, it did not found liability.

The judge appeared to have assumed by means of a bare assertion that he accepted that the refresher training on a regular basis would have prevented or reduced the risk of a claimant pulling the bed from the wall in the way that she had done. This was the wrong test. It was not enough that any training would have reduced the risk of injury. The claimant had to demonstrate that the breach was a cause of the injury, namely that it would have prevented it. The judge had inverted the tests. The proposition that refresher trainer would have at least reduced the risk of the claimant suffering an injury was the appropriate question to ask when one was considering whether or not there was a breach of duty under regulation 4(1)(b)(ii).

Conversely, the question whether training would have prevented the accident was the question to ask on the causation issue. If the claimant had lifted the bed it was possible to support the judge’s conclusion on the basis that continuation training would have altered her practice and that that alteration of practice would have meant that she would not have hurt herself when moving the bed. Not everyone would have reached that conclusion but there would have been a proper basis for it. However, the claimant’s evidence given through an interpreter was less than crystal clear. It was unclear whether the claimant had lifted the bed or merely pulled it on the perfectly good wheels that they had. The judge’s findings were less than clear. The claimant’s counsel conceded that if the judge had made a finding that she had lifted the bed that that finding was unsustainable but that no such finding was made. The Court of Appeal however, took the view that the judge had made such a finding. The judge had also found earlier in his judgment that the carpet was not thick and the bed was not stuck and that there was nothing making it difficult to roll out on its wheels.

On that finding the Court of Appeal could see no proper basis for the conclusion that refresher training of a lifting technique would prevent the injury. It was likely that she had jerked the bed because she had ended up with an injury of some kind to her shoulder. It did not follow that there was any basis that refresher training would have eliminated that possibility.

The judge had reached the conclusion through inadvertence which was not open to him. It was for the claimant to prove causation in this case as in all such cases and the clear consequence of the analysis which the Court of Appeal had attempted to give was that she was unable to do it.

Appeal allowed.

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