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Ghaith v Indesit Co UK Ltd, Court of Appeal, 17 May 2012

7 June 2012
The issues

Manual Handling Operations Regulations 1992 – lifting injury – burden of proof – assessment of risk

The facts

Mr Ghaith worked for Indesit as a service engineer. He had a van full of machine parts and he would drive the van around his area repairing and maintaining machines previously sold to customers. Once a year a stock take took place when Mr Ghaith’s supervisor and Mr Ghaith would record all the stock Mr Ghaith had in his van; everything was taken out of the van, scanned and noted on a computer record kept by the supervisor. Large items such as washing machine drums had to be lifted out and placed on the ground or on a trolley. Smaller items were lifted out and put in a ‘tote box’. The majority of the lifting and moving was done by Mr Ghaith, whilst his supervisor occupied himself mainly doing the scanning and recording. The operation took most of the day. At about 4 o’clock, Mr Ghaith felt a severe pain in his back and was stuck in the position holding a box. It was not clear how the accident had occurred, but the most likely explanation was that Mr Ghaith had lifted awkwardly at a moment of inattention. He suffered an acceleration of his back condition by about two years. He brought a claim against Indesit alleging a breach of the Manual Handling Operations Regulations 1992. Indesit had carried out a risk assessment in August 2006 and in December 2006. The first assessment related to the work done in people’s homes and the second noted the risk that tote boxes might be filled with too many heavy items and instructed that no box should exceed 25k in weight and that each box should have a warning label advising the handler to check the weight of the box before attempting to lift it.

Indesit’s difficulty was that its risk assessments had not dealt with stock taking at all

After the accident a new risk assessment was made which singled out stock taking as a separate activity and recommended that heavy weights should be left in the van and scanned there and that the lifting and moving of items should be shared between the service engineer and the supervisor. The matter came before the judge who dismissed the claimant’s claim on the basis that the December 2006 assessment was suitable and sufficient within Regulation 4(1)(b)(i). The judge went on to consider whether, if the assessment was sufficient, Indesit had taken appropriate steps to reduce the injury from manual handling to the lowest level reasonably practicable pursuant to Regulation 4(1)(b)(ii). The judge considered the arguments put forward by Mr Ghaith that he should have been given more training and that the lifting and moving should have been shared with the supervisor and that the stock taking should have been conducted over two days. He came to the view that those steps would have made no difference on the basis that the claimant had been trained and knew how to lift and that there was nothing more that could have been done on the part of the defendant.

The claimant appealed.

The decision

In Egan v Central Manchester NHS Trust (2008) the Court of Appeal had held that the requirement in 4(1)(b)(ii) (to reduce the risk) was separate from and additional to the requirement to carry out a risk assessment in Regulation 4(1)(b)(i). It also held that the burden of proof was on the employer to prove that it had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.

Indesit’s difficulty was that its risk assessments had not dealt with stock taking at all. A particular risk associated with stock taking was the risk of handling items of equipment over what might be a lengthy period. The relevant issue was not the repetition but the length of time that the operation took. By May 2011 Indesit realised that stock taking needed a separate assessment.

It could not be said, contrary to the judge’s view, that there was any suitable or sufficient assessment of the relevant risk by Indesit. Notwithstanding that, had the defendant taken appropriate steps to reduce the risk to the lowest reasonably practicable level? The onus was firmly on the employer to discharge the burden of proof. There was no obligation on the employee to suggest ways in which the risk could have been reduced. The most obvious precaution to have considered was the provision of regular breaks of reasonable length in the stock taking operation. That was reasonably practicable.

Causation was not a separate hurdle for the employee given that the onus is on the employer to prove that he took appropriate steps to reduce the risk to the lowest level practicable. If the employer did not do that he would usually be liable without any more ado, although it was possible to imagine a case where an employer could show that even if he had taken all practicable steps to reduce the injury (although he had not done so) the injury would still have occurred, i.e. the injury was caused by a freak accident. The onus of so proving however had to be on the employer.

As to contributory negligence, momentary in-attention would not usually justify any finding of contributory negligence. There would be no deduction in this case.

Note: Two members of the Court of Appeal took pains to lament the fact that Indesit had not pursed the options of mediation which had been encouraged in the permission to appeal.

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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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