England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 27th March 2002

1. SIR SWINTON THOMAS: This is a renewed application for permission to appeal an order of His Honour Judge Halbert in Llangefni County Court on 10th January 2002 when he dismissed a claim by Mr Jones for damages for personal injury and gave judgment for the defendant, the Home Office.
2. Mr Jones alleged that on 11th July 1996, while he was a serving prisoner at Shrewsbury Prison, he sustained injury to his back.
3. His case was that while working in the clothes exchange store of the prison he was required to lift heavy and awkward bags of clothing and store them in the stores. He alleged that he had to put some of the bags on top of the pile over seven feet high, and each sack was 650 millimetres in diameter and 1.35 metres in height. He said some of the sacks weighed more than one hundredweight. The judge found as a fact that those measurements and the weight were not accurate. Mr Jones, in the course of his submissions to me this morning, has criticised that finding made by the judge. Mr Jones alleged that while he was lifting one of the sacks he sustained the injury to his back.
4. On 31st December 1996 while on home leave Mr Jones undoubtedly suffered an injury to his back following the lifting of some concrete. Unfortunately for Mr Jones, the judge did not accept his evidence and he rejected entirely the evidence of his supporting witness Mr Rowatt. Mr Jones criticises the findings made by the judge in relation to his own evidence. He told me that Mr Rowatt -who, I think, Mr Jones said was a young man - was completely terrified by being in court and having to give evidence in the circumstances in which he was placed. The judge did however accept the evidence given by Mr Turner who was the prison officer responsible for organising and overseeing the claimant's work. Mr Jones told the judge that the men were all instructed that they should always lift with bent knees and should, if the bag was heavy, get help. The judge said, in terms, in his judgment that he accepted the evidence that Mr Jones was given instructions in how to lift. The judge referred to the medical evidence given by the jointly instructed expert, Mr Hunter, who, as related on page 10 of the judgment, said this:

"I could find no medical evidence that this man hurt his back while in Her Majesty's Prison, but such might have been the case. If the injury occurred I would expect it to be no more than a sprain with painful symptoms settling within three months, but allowing some 12 months aching. I do not believe that his current problems stem from the accident that might have occurred in July 1996."

5. Mr Hunter then went on to say that, in his opinion, there was some non-physical source for Mr Jones' symptoms.
6. The judge went on to consider the claim based on statutory duty, on which Mr Jones places reliance. He referred to the Manual Handling Operations Regulations 1992, and he noted it was conceded that because the claimant was a serving prisoner and not an employee there could be no claim in respect of breach of statutory duty. Mr Jones says that the Regulations were breached and that breach amounted to a breach of a duty of care owed to him by the prison and by the prison officers.
7. The judge summarised his conclusions starting on page 13 of his judgment. He said:

"On the facts, first of all, I am not satisfied on the balance of probability that injury occurred in the way Mr Jones describes. I have already identified the factors which lead me to that conclusion, notably the total absence of any complaint about it at any stage to anybody, particularly no reference to it to any of the subsequent medical officers who examined him. Secondly, the inconsistency between his description of his later symptoms and the other surrounding evidence leads me to be very wary of accepting his totally unsupported account of how the accident occurred. Secondly, [(sic)] even if it did occur as he described I see no basis for an allegation of negligence against the Prison Service. If he had been required to lift an item weighing 1 cwt. above his head to a height of 7' or more and had injured himself doing so, a basis of liability would be obvious but on the evidence the stack was in fact nowhere near that high, there is no adequate evidence that the bag was anywhere near that heavy even on his own account. He had only just lifted it off the floor in any event so it was not a case that his back was injured by lifting to an excessive height. That there was not a risk assessment by then is clear but when one was carried out there is no evidence whatever that the working practices adopted in this prison system have been altered in any way, so there is no basis for alleging that a risk assessment would have prevented the accident. No one else has ever been injured, at least there is no evidence that anyone has been, and the accident record book has been produced.

The regulations, it is worthy of note, refer to:

`within the limits of reasonable practicability the employer must avoid the need for an employee to undertake any manual handling operation at work which involves a risk of him being injured and it has been held that a risk of injury arose if it was established that injury was a foreseeable possibility rather than a likelihood.'

That is a quotation from Charlesworth and Percy on Negligence at page 803 of the 10th Edition.

In my view, given the way the laundry was run by Mr Turner, given the instructions he gave Mr Jones to get help if it was too heavy and the height of the stack, I would not have thought that lifting a bag of up to 50 kg. off the floor with readily available help if required was likely to cause injury, or foreseeably likely to cause injury, to an adult male in full health. Moreover, I find as a fact that he was told to lift with his back straight and his knees bent, he was told to get help with anything that was heavy, and that help was readily available."

8. Mr Jones has made a number of succinct submissions to me in the course of this morning. He says that it is the responsibility of the prison authorities to record an injury, the prison authorities failed to do so and that was something which should have been but was not taken into account by Judge Halbeat. He stresses that there was a duty on prison officers to record his accident. He says that the prison authorities owed him a duty of care and that involved laying down proper regulations for the work he was carrying out, and ensuring that those regulations were followed. He invited my attention to a passage in Mr Selwyn's book, the Law of Health and Safety at Work, paragraph 1.113 on page 65 which reads:

"If something is under the control of the defendant and an accident occurs in the circumstances such that it would not have happened unless there had been a want of care by the defendant then a presumption is raised that the defendant has been negligent. The burden is then put on the defendant to explain the accident and to show that there was no want of care on his part; in other words, the facts speak for themselves. The defendant may be able to show a convincing reason why he was not negligent, e.g., the accident was caused by the fault of a third party, in which case the burden of proof is thrown back to the plaintiff to prove his case in the usual manner." (Quotatiion not checked against original)

9. It is clear, with respect to Mr Jones' argument, that that passage does not apply to his particular accident because there is no doubt that, he being a claimant, the onus is upon him to prove that the accident occurred and then that the defendant had been negligent.
10. Much more relevantly, in my view, Mr Jones, in his submissions, relies upon a number of facts which he placed before me perfectly properly, but evidence is heard and can only be heard in the court of trial, in this case the County Court. Judge Halbert based his conclusions on the evidence he heard in that court. Those findings were findings of fact which he was entitled to make, having heard the evidence, and they cannot properly be challenged in a court of appeal.
11. In my view, there was ample evidence to support the judge's findings. In those circumstances, sympathetic though I am to Mr Jones and to what he has said, it would be quite impossible for him to show that the judge was not entitled to reach the conclusion that he did and it would, accordingly, be impossible for his proposed appeal to succeed. In those circumstances this application must be refused.
Order: Application refused