The Court of Appeal has given judgment in Stewart (now White) v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 2091. In this case, the claimant was a community midwife who suffered a back injury when lifting a day to day item of equipment while working for an NHS trust (the defendant). There was no dispute as to whether she had received appropriate training on manual handling.

The claimant had lifted a plastic carry case containing an oxygen cylinder. She argued that the requirement for her to lift and carry the oxygen box was something that involved a risk of injury and that a risk assessment should have been performed under the Manual Handling Operations Regulations 1992 before she was expected to go ahead. The defendant disputed that this activity carried a real risk of injury and therefore that any such risk assessment was required. An employer’s duty under the manual handling legislation to carry out a risk assessment and take appropriate action only arises if the activity concerned creates a ‘real risk’ of injury.

At first instance, the trial judge held that given the nature, design and weight of the oxygen box and the absence of any complaints, suggestion or evidence that it had posed difficulties for midwives previously, despite regular use, he was not satisfied on the balance of probabilities that a risk assessment was required. He accepted the defendant’s case that the box was something that was safe if properly handled and lifting it did not require a separate or detailed assessment. The claimant had been trained in how to lift items and in cross-examination accepted she could not think of any further training which would have helped. She acknowledged that she had to make her own assessment of what was to be lifted and had decided to lift up the oxygen box with both arms underneath it, with her knees bent and her back straight, despite it being fitted with a handle as well as a strap. She agreed it was obvious that the handle was there to lift the box. The judge therefore dismissed the claim – and the claimant appealed.

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. One of the additional points considered was whether it was for the claimant to prove that there was a ‘real risk’ of injury which the employer had not identified and managed or for the defendant to show that one was not 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 obligations under the manual handling regulations become applicable.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, comments: “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. With the Enterprise Act removing automatic civil liability for breach of legislation, in circumstances involving a lifting injury claimants must prove that whatever they were asked / expected to do carried a real risk of injury, that this real risk was not identified and managed properly through a process of risk assessment and that had such steps been taken, the accident would have been avoided.

“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. Employees bringing a claim arising from a lifting injury need to be able to show that there was a real risk in what they were asked to do and that it was the failure to manage this risk, rather than their own actions, that led to the injury. It is worth noting here that the back injury was not an indicator of the weight of the item or the nature of the lifting - the claimant was found to have a degenerative back condition which was aggravated by the incident. The point was that lifting the case was not unsafe for staff as a whole but was for her given her back condition. At the time no one, including the claimant, was aware of her back condition and so there was no reason to consider her at risk of injury.”