5.12.08  

Court of Appeal finds for Claimant following manual handling accident; Defendant had failed to take steps to reduce risk of injury to lowest level reasonably practicable.  

On 17 June 2003 Ms Egan, a nurse, decided to bathe a female patient. She transferred the patient into a hoist and wheeled the hoist to the end of the bath. The bath stood on plinths about 5 inches high which were set back about 17 inches from the end of the bath. As she pushed the hoist forward the hoist suddenly stopped. Ms Egan suffered a back injury. At first instance the claim was dismissed on the basis that the failure to risk assess, although in breach of the Manual Handling Regulations, was not causative of the accident. Ms Egan appealed.  

Held: The trial Judge should have given consideration to the requirement under Regulation 4(1)(b)(ii) which requires an employer to take all appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The Trust, at a modest cost, could have reduced the risk of injury by making the supporting plinth visible and/or by placing markings on the floor to enable the operator to align the hoist. On that basis there had been a breach of Regulation 4(1)(b)(ii) and the Trust was primarily liable. However, Ms Egan did not look carefully enough and a finding of 50% contributory negligence was made.  

Comment: In both this case and the case of Goodwin v Bennetts UK Ltd (see below) the Court of Appeal have overturned first instance decisions in employers’ liability claims in favour of the Defendant. It is of course disappointing for Defendants and their insurers when claims, which had been decided in their favour, go against them on appeal. However, it is arguable in both cases that the Judge at first instance had not correctly applied the relevant law. The Egan case is a reminder that the Manual Handling Regulations place strict obligations on employers to reduce the risk of injury to the lowest level reasonably practicable.  

However, the significant finding of contributory negligence is noteworthy and demonstrates that, even in cases where there is liability on the part of an employer, the employee will be expected to take care for his or her own safety. In particular, the employee will be expected to make full and proper use of any system of work provided for his use by his employer in compliance with regulations. In some cases (for example Ammah v Kuehne+Nagal Logistics Ltd – see above) this will result in a full defence.