No B3/2001/1057
Neutral Citation Number: [2002] EWCA Civ 429
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MISS RECORDER GODFREY QC
(Sheffield County Court)
Royal Courts of Justice
Strand
London WC2

Tuesday, 5th March 2002
B e f o r e:

LORD JUSTICE KENNEDY

LORD JUSTICE MANTELL

- - - - - - - - - - - - -
 
ALSOP
Appellant

- v -

SHEFFIELD CITY COUNCIL
Respondent

- - - - - - - - - - - - -
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

MR IAN NEWBON (Instructed by Whittles of Leeds) appeared on behalf of the Appellant

MR W PHILLIPS (Instructed by legal Administrative Services, Sheffield City Council) appeared on behalf of the Respondent

- - - - - - - - - - - - -

J U D G M E N T
1.	LORD JUSTICE MANTELL: In 1996 Thomas Alsop was a refuse collector working for Sheffield City Council. During that year he had two accidents when emptying wheelie bins, but we are only concerned with the second. That was an accident which happened on 17th October 1996. Mr Alsop was part of a team emptying bins in Bishopholme Road. There is a section of Bishopholme Road where the pavement and houses are set at a lower level than the carriageway with a flagged or concrete ramp connecting the pavement with the kerb. The ramp has a gradient of almost 1 in 3 or 30 degrees. Although it is interrupted at intervals with steps up to the roadway, it seems that Mr Alsop's practice, at any rate, was to pull the bins up the ramp. It was while he was doing this on one occasion that he slipped and fell, injuring his left elbow. The earlier occasion, to which I have made passing reference, was not altogether dissimilar except it involved Mr Alsop crossing a much narrower strip of grass verge which ran down to the carriageway for a much shorter distance than the length of the concrete ramp.
2.	He sued his employer, the Sheffield City Council, in respect of both incidents. His action came on for hearing in Sheffield County Court on 15th March 2001 when his claims in relation to both were dismissed by Miss Recorder Godfrey QC, sitting as a County Court judge. He now appeals that decision with permission of Lord Justice Henry and limits his complaint to the dismissal of the second head of claim only, that is the occasion when he slipped when taking a wheelie bin up the concrete ramp. The claim was founded in negligence and breach of statutory duty. The allegations of negligence are in the usual comprehensive form but essentially consist of two complaints. First, the failure on the part of the Sheffield City Council to give sufficient instructions as to how to use the bins and, in particular, how to deal with bins when confronted with the kind of problem which faced Mr Alsop on the day of his accident; and, alternatively, failure on the part of the city council to provide for those residents who lived adjacent to this gradient or in similar situations within the city sacks or bin liners which could be more easily carried up and down the steps as opposed to being taken up and down the concrete ramp.
3.	The breaches of statutory duty relied upon were those contained in the Manual Handling Operations Regulations of 1992 and, in particular, Regulation 4 (1) (b) (i) and Regulation 4 (1) (b) (ii). Those regulations provide that -
“(b) where it is not reasonably practicable to avoid the need for employees to undertake any manual handling operations at work which involved a risk of their being injured - 
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) 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 ..... “
4.	There seems little doubt that, as pleaded, the thrust of the complaint was that this was not a suitable area for wheelie bins to be used and that some other means of disposal should have been made available. That is not the emphasis which Mr Newbon, in prosecuting this appeal, places upon the claim. What he relies upon chiefly is the failure on the part of the city council to give sufficient instructions as to how these wheelie bins were to be used. In particular, he submits that the judge should have found, as should this court, that the operatives, including Mr Alsop, should have been told not to attempt to take the wheelie bins up and down the gradient but should either have been instructed, where possible, to use the steps and if that was not appropriate to take their bins to that point where the pavement and roadway level out. The defence before the judge had been that it was not reasonably practicable to avoid the need to move the wheelie bins by hand but that contention, as pleaded, hardly addresses the main point.
5.	Again, looking at the picture overall, it rather looks as though the Sheffield City Council were contending at trial that this was a case of Mr Alsop attempting to do something which was, in the circumstances, extremely foolish as it was open to him to meet the difficulty in some other way, and, in the circumstances with which he was confronted, that would mean either using the steps or going to the end of the slope.
6.	The judge, in reaching her conclusions, had in mind guidance offered by this court in Koonjul v Thameslink Healthcare Services [2000] PIQR 123 and, in particular, some observations of Lady Justice Hale at page 126. That had been a case where a care assistant in a nursing home or some similar establishment had hurt her back when attempting to change a low level bed. It had been necessary for the lady to move the bed from its position against the wall. In so doing, she chose to get hold of the end of the bed where there were no castors on the legs and, consequently, found it harder to achieve than she might have envisaged. Consequently, she hurt herself. The claim was dismissed as was her eventual appeal. It was alleged in that case that there had been a breach or breaches of the same regulations as are said to apply here. It was necessary therefore for the court to consider, as it has had to do on earlier occasions, what is meant by the expression “risk” where it appears in Regulation 4. It was in that context that Lady Justice Hale said at page 126:
“For my part, I am quite prepared to accept ..... “
	that what is involved, to use my own words
“that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have.
However, in making such assessments there has to be an element of realism. As the guidance on the regulations points out, in appendix 1 at paragraph 3:
` ..... a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort.'“
7.	Here, the judge, accepting, as she did, that there was such a risk as was described by Lady Justice Hale in Koonjul, came to the conclusion that it was not such as would involve the Sheffield City Council in making an assessment under Regulation 4 (1) (b) (i). The judge said:
“I find that although there had been concerns about safety, and they are recorded in the minutes of the meetings that are before me, over the years, they are, however, in respect of loading those bins onto the wagon and there was no reference in any of those minutes to the need to train refuse collectors in how to pull wheelie bins or anxiety in respect of slopes. There had been an issue as to where the bins were to be left and that is rather separate from an anxiety about safety of men pulling bins up slopes. I am not satisfied that that was ever raised as a complaint. So no training was ever given on pulling bins to the wagon, but I find that there was not a real risk of injury in such an operation. But, to the extent that there must be an inherent risk in every task that one performs, that risk in this case I find, on the evidence of both the complainant and Mr Grant, who said that on numerous occasions throughout all their years of employment as a regular method of work they would pull the bins or push the bins up these slopes, I find risk of injury to be a very low one and indeed the accident book does not contain complaints of dustmen, refuse collectors, having frequent injuries, pulling bins up and pushing them [down the] slopes or indeed of flying over the top of them, as was suggested as a regular occurrence ..... “
8.	Earlier the judge had remarked on the fact that there were alternative means of transporting the wheelie bins from the pavements to the roadside. She referred to the several sets of steps along this stretch of highway and also to the relatively short distance involved in pulling wheelie bins or pushing them along the pavement to a point where the pavement and the roadway levelled out.
9.	I can find no error in the approach of the judge. I would, on that basis alone, uphold her decision. It seems to me also that even had it been her view that the risk was such as to involve an assessment of the operation by the city council and had such an assessment taken place there would have been nothing more for the city council to do other than to inform its operatives to use their common sense when moving wheelie bins from one place to another. That would involve, in circumstances such as occurred in this case, the operative judging for himself by reference to the weight of the bin, the weather conditions and his own general fitness, as to whether or not it was appropriate to try to pull the wheelie bin up the slope or whether it would be better to make use of the steps or even, in certain circumstances, to take the wheelie bin to the end of the sloping section. For that reason also it would seem to me the judge reached the right conclusion. For those reasons I would dismiss this appeal.
10.	LORD JUSTICE KENNEDY: I agree. Regulation 4 (1) (b) applies not to all manual handling activities at work but only to those which involve a risk of the employees being injured. That was made clear in the case of Koonjul, to which my Lord has referred. The risk has to be real, a foreseeable risk of injury, although not anything approaching a probability. In deciding whether or not such a risk exists the employer is entitled to have regard to the experience of the employee said to be at risk.
11.	In this case the recorder found no foreseeable risk and, on the evidence, as it seems to me, she was entitled to make that finding. Had she concluded that there was a foreseeable risk and, consequently, it was necessary for the employer to make a suitable and sufficient assessment, then she would also have had to consider Regulation 4 (1) (b) (ii), the obligation on the 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. For the reasons explained by my Lord that would have involved, in the circumstances of this case, no more than saying to experienced dustmen to use their commonsense having regard to the weight of the load, the geography outside each individual house and the state of the weather. As the witness who gave evidence on behalf of the claimant said frankly in answer to cross-examination:
“The dustman, once he has got it under his control, will be the person who will know what is the best way to do it. Until he has got it under his control he has no idea of the contents of it, the contents being very, very crucial.”
12.	For those reasons I, too, would dismiss this appeal.
Order: Appeal dismissed with the costs