England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
(Mr Recorder Fraser)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/10/2007

Lord Justice Keene :

1. This case concerns a claim by an employee for damages for injury suffered during the course of his employment by the defendant. It is an appeal by the defendant employer from the judgment of Mr Recorder Fraser at Southampton County Court, delivered on 4 December 2006 after a three day trial.
2. On 24 July 2002 the claimant, Mr Parr, and some colleagues were involved in moving four very large machines from a delivery bay, where they had just been delivered, to positions inside the factory where the claimant worked as a handyman/labourer. Three of the machines were very heavy, weighing in one instance 2,800 kilograms and the other two each 3,100 kilograms, i.e., a little under or a little over 3 imperial tons. The fourth machine was not so heavy. The machines were moved manually and the claimant's case was that in the course of this operation he injured his back. He experienced severe symptoms later that day, did not come to work the following day, and had at the time of trial not worked properly since then.
3. Both liability and quantum were in issue at trial, but it was agreed during the trial that no detailed findings on quantum should be made and that the judge should, if it became relevant, only deal with matters of principle on quantum. It was not in dispute that the claimant's involvement in moving these machines had caused an acceleration in some degenerative condition in a disc in his spine, but the period of acceleration was in issue.
4. The claim was brought both in negligence and for breach of statutory duty, the duty arising under Regulation 4 of the Manual Handling Operations Regulations 1992 ("the 1992 Regulations"). It was accepted that the moving of the machines was a manual handling operation covered by the 1992 Regulations, and the focus of the case was on the alleged breach of statutory duty. In the event the judge found that there had been a breach of Regulation 4(1)(a), 4(1)(b)(i) and 4(1)(b)(ii). These provisions read as follows:

"4. – (1) Each employer shall –

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured: or

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve 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"

5. Schedule 1 duly sets out the factors to which the employer must have regard and the questions he must consider when making an assessment of manual handling operations. It is unnecessary to set out the contents of that Schedule in this judgment, but they require the employer to have regard to the tasks and the loads involved, the working environment and individual capability. Amongst other matters the employer must ask himself whether the load is heavy, whether the task involves excessive pushing or pulling and whether it involves frequent and prolonged physical effort.
6. To assist employers in performing these statutory duties, the Health and Safety Executive has published Guidance. That Guidance recognises that some manual activities involve negligible risk, the example given being lifting a teacup, and so the Guidance sets out a "filter" to help identify situations where a detailed risk assessment is necessary. That filter is based on

"… a set of numerical guidelines developed from data in published scientific literature and on practical experience of assessing risks from manual handling. They are pragmatic, tried and tested; they are not based on any precise scientific formulae. The intention is to set out an approximate boundary within which the load is unlikely to create a risk of injury sufficient to warrant a detailed assessment.

The application of the guidelines will provide a reasonable level of protection to around 95% of working men and women. However, the guidelines should not be regarded as safe weight limits for lifting. There is no threshold below which manual handling operations may be regarded as 'safe'. Even operations lying within the boundary mapped out by the guidelines should be avoided or made less demanding wherever it is reasonably practicable to do so." (Guidance, Appendix 1, paragraphs 3 and 4)

7. The point about the numerical figures not representing safe limits is repeated at the end of Appendix 1, which then adds:

"Even for a minority of fit, well-trained individuals working under favourable conditions, operations which exceed guideline figures by more than a factor of about two may represent a serious risk of injury. Such operations should come under very close scrutiny."

8. Much of the Guidance is directed towards lifting operations, but pushing and pulling are also covered. Paragraph 12 of Appendix 1 provides:

"For pushing and pulling operations (whether the load is slid, rolled or supported on wheels) the guidance figures assume the force is applied with the hands between knuckle and shoulder height. The guideline figure for starting or stopping the load is a force of about 25 kg (ie about 250 Newtons) for men and about 16 kg (ie about 160 Newtons) for women. The guideline figure for keeping the load in motion is a force of about 10 kg (ie about 100 Newtons) for men and about 7 kg (ie about 70 Newtons) for women."

9. The four machines in the present case had to be moved distances of between 50 and 70 feet, with a 90 degree bend being involved. The machines had been delivered that morning by Mr Norman, the owner of XYZ Haulage Limited, for which he drove and which regularly provided delivery services for XYZ Machine Tools Limited, the supplier of these four machines. The machines were unloaded by crane onto roller devices known as skates. There were three skates, all provided by Mr Norman. One had a steering mechanism by means of a plate and a handle, enabling the load to be manoeuvred round corners. That skate was placed under the front of the machine being moved, while the other two skates, without steering mechanisms, were positioned beneath the back of the machine. The machines were then pushed through the factory to the places of installation. The whole operation took some hours.
10. There was some dispute and indeed some uncertainty in the evidence as to how many men were involved in each operation, but there is no doubt that Mr Norman on each occasion was at the front operating the steering mechanism, and that the claimant was on each occasion one of two people pushing at the back of the machine. There also seems to have been someone at the side of the machine. The judge found that, apart from Mr Norman, three men in total were involved in moving each machine, though it seems that, apart from the claimant and Mr Norman, the individuals involved varied, as the claimant said in his own evidence. For much of the time Mr Jeffreys, the manufacturing manager of the defendant, was one of the two pushing at the back but his evidence was that he was not present for the whole of the operation. Another employee, Mr Wheavil, was only involved in moving two of the machines; he again was at the rear. He described there being one man at the front, two at the rear and one at the side "to keep a look-out": witness statement, paragraph 7.
11. The witnesses generally were handicapped by the fact that almost all the contemporaneous documents, including statements taken from them by the defendant's adviser on health and safety soon after the incident, were missing by the time of trial. That was true both of the hard copies of these documents and of the computerised versions. No records were available of the post-accident investigation which had been carried out. No explanation for this was given and, unsurprisingly, the judge was critical of the defendant on this aspect of the case.
12. He found that the operation involved the movement of heavy machinery and was outside the usual duties performed by the claimant. There was agreed expert evidence that, for the heaviest machines, about 140 kg of force (kgf) was required to start the machine moving and about 90 kgf to maintain it in motion, more when going round corners. That led the judge to consider how much force would have been provided by the claimant as one of the two men pushing at the rear. The judge noted that force would not be applied constantly or equally by all of the people involved, and so he considered the roles played by each. His finding on that topic are criticised by the defendant in this appeal. I summarise what those findings were.
13. The judge found that the two men pushing at the back would have been applying "the prime force" for a substantial amount of the time or, as he put it elsewhere in his judgment, "the majority of the forward motive force". He found that Mr Norman at the front would have provided negligible force, since he would have been concentrating on the steering:

"… although he said he was pulling too, he was steering the large machines through a relatively narrow area. The machines were expensive and new, and his prime focus would inevitably be steering and not pulling."

As for the lookout at the side, the judge found that he would not be pushing "all the time" but would have only provided intermittent force as he was also keeping a lookout. Given these findings, the judge concluded that the claimant was, when pushing the heaviest machines, applying a force of about 45 kgf upwards for a considerable period of time. This was arrived at on the basis that there would have been three people providing the force to get the machine moving in the first place (140 kgf divided by 3) and that, once in motion, at times when the lookout was not pushing, two people were providing the necessary 90 kgf. At other times when the lookout was pushing, the claimant would have been applying at least 30 kgf. These figures were almost twice the guideline figure for starting a load in motion (25 kgf) and three or four times the guideline figure for keeping the machine in motion (10 kgf).

14. Consequently the judge found that a detailed risk assessment was necessary but was not done. Indeed, he found that no risk assessment, detailed or otherwise, had been done. In that respect there had been a breach of Regulation 4. Had a detailed risk assessment been carried out, it would have identified a considerable danger of serious injury to the operatives pushing the machines. Such a manual operation could have been avoided by mechanical means, such as towing by a fork-lift truck, or the machines could have been moved by specialist movers, as had earlier happened at another of the defendant's premises. The judge observed that it was likely that the team of operatives with the specialist movers would have had considerably more training in such operations than the defendant's employees had had. If manual handling could not have been avoided by the defendant, the risk to its employees could and should have been reduced so far as was reasonably practicable, which could have been accomplished, said the judge, in various ways. The judge instanced

"not permitting the same individual to push more than one machine, or by rotating the people at the back pushing with the lookout position, or by using more personnel." (paragraph 30)

He found that the defendant had not considered the factors set out in Schedule 1 to the Regulations.

15. Having found the breaches of Regulation 4 to which I referred at the beginning of this judgment, he went onto consider the evidence of the extent to which the claimant's back problem had been accelerated by the events of 24 July 2002. Insofar as this aspect of the case arises on this appeal, it is accepted that it is essentially parasitic on the liability issue, that is to say, the argument raised in that respect stands or falls with the arguments on liability. I need not deal further with it at this stage.
16. The thrust of the defendant's case on this appeal is that the judge's central findings of fact are unsustainable on the evidence and were not ones open to him. There is a related argument that the judge relied on findings which had not been advanced on behalf of the claimant. Mr Nolan, QC, who appears on the defendant's behalf, also submits that a mere breach of Regulation 4(1)(b)(i) by failing to make a "suitable and sufficient assessment" of the manual operations would not necessarily enable the claimant to recover, since it might be that even without such an assessment the employer had taken all appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. In that situation there would be no causative link between the breach of Regulation 4(1)(b)(i) and the injury to the employee.
17. But it is also said that a suitable and sufficient assessment was made here and that the judge's finding to the contrary, and his comment that no assessment was done, indicate that one should approach his findings with a more critical eye than usual. Mr Nolan points to evidence from Mr Jeffreys that he had considered how the machines could be moved and had concluded that the safest way was by using skates. That, I have to say, would not be a "sufficient" assessment because it would not consider the details of the manual operation involved, such as how many men were required, how they should operate and indeed whether they would need any training in order to reduce the risk of injury to the lowest reasonably practicable level. As Mr Jeffreys frankly asserted in cross-examination, he himself was not technically equipped to calculate what force was needed. In effect, the numbers of men required and how they should perform was left to Mr Norman, whom the judge regarded as a less than satisfactory witness.
18. There were a number of reasons for the judge taking that view of Mr Norman. The latter had in his witness statement testified that the operation at the defendant's premises

"would have been carried out under a standard risk assessment, a copy of which is attached to this statement." (paragraph 11)

Such a document was indeed annexed, specifying possible hazards, identifying for some of those hazards the best practice and referring several times to training. When examined in chief, Mr Norman said that at the time of this incident he did not in fact use a written risk assessment and had got this document from another machine mover. Nor had he followed the procedures set out in it when operating at the defendant's premises. When cross-examined, he admitted that paragraph 11 of his witness statement had not been true.

19. This was not the only reason why the judge was not prepared to place much reliance on Mr Norman's evidence. The judge's view of him was that he appeared keen to downplay any risk involved, regardless of the facts: see paragraph 18 of the judgment. Mr Norman maintained that he had done a risk assessment, but as the judge said, this appears to have consisted of nothing more than having a quick look around and reminding himself that he had done this operation many times before. The judge also appears to have had in mind the fact that Mr Norman had said that he could move such machines on his own, in the sense that he could physically get even the biggest of them into motion on his own.
20. But whether or not a sufficient assessment was done by anybody, I for my part accept Mr Nolan's point that it will not be enough for a claimant to show a breach of the Regulation requiring such an assessment if the evidence shows that the defendant did in fact take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. It may have done that even without a proper assessment and, if so, the lack of an assessment will not have caused the claimant's injury. So the real issue is whether the judge was entitled to conclude that that substantive duty to take such steps had not been performed in the present case.
21. Much reliance is placed by the defendant on evidence from Mr Norman that the method used for moving these machines was a standard one used by his company, which delivered some thirty to forty machines a month in this way, and that he had never heard of anyone suffering an injury. He said that machines of this weight were regularly moved with a total of three people involved. It is argued that the judge ignored this evidence and that such evidence showed that the defendant did take appropriate steps to reduce the risk to the lowest reasonably practicable level.
22. I do not find this line of argument persuasive. The judge was clearly aware of Mr Norman's evidence on this aspect of the case: he refers to Mr Norman having done this operation many times before at paragraphs 25 and 26 of his judgment. In the light of what a detailed analysis revealed about the force being applied by the claimant, it is clear that this very general evidence from Mr Norman did not carry much weight with the judge, and one can understand why. None of Mr Norman's evidence dealt with the particular factual circumstances of other such operations in the past and with how those circumstances compared with those of this operation. It is quite clear from the statutory provisions in Schedule 1 to the 1992 Regulations that the degree of risk involved in any operation will vary, depending on a number of factors. Those factors are likely to include the distance involved, the presence or absence of a bend or bends, the length of time for which the physical effort is required (which would reflect amongst other things the number of machines pushed by any one individual), and the age and capability of the persons involved. The mere fact that such machines had been pushed on skates on previous occasions by three or four men could not in itself demonstrate that what was proposed at the defendant' s premises was reducing the risk of injury to the minimum reasonably practicable level. Mr Norman's evidence, even had it come from a wholly reliable witness, did not deal with such factors which both the Regulations and common-sense indicate are relevant. To take an obvious example, using two or three fit young men plus Mr Norman to push a single machine on skates 20 feet or so in a straight line may well give rise to a very different degree of risk from the situation at the defendant's premises where the 51 year old claimant was involved in pushing four machines over a number of hours a distance of 50 to 70 feet and around a bend. It is no doubt because of the potential significance of such individual factors that the 1992 Regulations require a detailed assessment of risk to be carried out in many situations.
23. On the facts as found by the judge as to the amount of force being applied by the claimant, it is difficult to challenge his finding that there was a considerable risk of serious injury to the claimant. As indicated earlier, the judge found that the claimant would have been applying a force of between two and four times the guideline figures at various times over these hours. The judge pointed out that the guidelines warn that, even for a minority of fit, well-trained individuals working under favourable conditions, operations which exceed the guideline figures by more than a factor of about 2 may represent a serious risk of injury.
24. Mr Nolan conceded in the course of argument that, if the judge's findings as to the respective roles of the men involved in the moving of these machines were soundly based, then the defendant's case was in some difficulty. But he submits that the judge was not entitled to find that the various men were acting in the ways he found or that the claimant was exerting the force found by the judge. It is contended that the judge was wrong to discount Mr Norman's contribution to the moving of the machines. Moreover, it is said that the concept that only two people were really applying significance force, i.e., the two at the rear of the machines, only appears in the judgment and was not taken during the trial.
25. I take the last point first. The two other men were the lookout at the side of the machines and Mr Norman at the front. So far as the lookout is concerned, the transcript reveals that Mr Pearson on behalf of the claimant did submit that there was "a question-mark" as to the extent to which such a person was pushing or whether he was just acting as the lookout. None of the defendant's witnesses identified themselves as the person at the side of any of the machines and so there was no direct evidence as to how far such a person did actually push. None of those witnesses could say during cross-examination whether the lookout man had in fact pushed. In those circumstances the judge was entitled to look at the realities of the situation and to conclude that the lookout would only have applied force "intermittently" and not all the time. That was a sensible and indeed cautious finding.
26. The finding that Mr Norman at the front provided negligible force because he was concentrating on steering was explored, albeit briefly, during his cross-examination. It was put to him that the pushing was done by the defendant's men and that he just steered. He denied that, saying that he pulled as well as steered. The judge was not bound to accept that assertion. He generally was not impressed by Mr Norman's evidence, but in any event he gave clear and cogent reasons in his judgment for finding Mr Norman would have been concentrating on steering. I have set these out at paragraph 13 (ante). The judge accepted that at times Mr Norman would have pulled to some extent, but not all the time. In my judgment, that was a finding properly open to him. It needs to be borne in mind that not every finding has to be based upon an express statement in evidence. A judge in a civil case, like a jury in a criminal trial, is entitled, and indeed expected, to use his experience of the world and his common sense, and to apply judgment. That was what this judge was doing here.
27. Mr Norman's limited contribution to the moving of the machines was a theme pursued on behalf of the claimant at trial and not only during the cross-examination of Mr Norman himself. For example, when Mr Chard, one of the defendant's witnesses, was cross-examined, it was put to him that he could not say whether or not Mr Norman had been pulling: see transcript, page 158. This was not a point invented by the judge.
28. I conclude that the judge's findings as to the role played by the claimant and the other men in moving these machines were ones sustainable on the evidence and that he could properly find that the claimant was applying force at times of between two and four times the guideline figures, giving rise to a considerable risk of serious injury. Of course the statutory test is not in those terms but is one of whether the defendant had taken appropriate steps to reduce the risk of injury "to the lowest level reasonably practicable": Regulation 4(1)(b)(ii). The defendant criticises the further or alternative steps identified by the judge as appropriate. But it would be remarkable if no such steps were reasonably practicable in a situation where a considerable risk of serious injury has been established in the absence of such other steps. It would mean that nothing further that was reasonably practicable could have been done to avoid that risk and that the employee simply had to accept the risk of serious injury. One only has to state the proposition to see how difficult the defendant's position becomes when properly analysed. That is the context in which the defendant's arguments on this part of the case need to be considered.
29. The judge identified a variety of steps which could have been taken, ranging from such mechanical methods as towing by a fork-lift truck to using specialist contractors or using more personnel. Mr Nolan points out that the claimant's expert, Mr Plumb, emphasised mechanical alternatives, such as the fork-lift truck, without having had any practical experience of such a method, and that Mr Plumb did not favour manual handling at all. The case put by the claimant had not been that specialist movers should have been used nor that more men should have been involved. In any event, asks Mr Nolan, what would specialist movers have done differently? The judge could not have properly found that any such alternatives were reasonably practicable.
30. I disagree. The use of specialist movers had been expressly pleaded in the Particulars of Claim, paragraph 9(iii), as had the provision of further assistance, and the submissions on behalf of the claimant at the end of the trial expressly referred to the alternative of using a specialist firm (transcript page 327). Such a firm might have used the same basic method of manual handling with the machines on skates, but the judge was entitled to take the view that the employees of such a firm would have had considerably more training in such operations, as indeed they would have had more experience. One does not need express evidence in order to arrive at that view.
31. The alternative of using more men to push these machines was not merely pleaded, as I have indicated above, but was really implicit the way in which the trial was conducted, with the regular investigation of how many men were actually pushing. It was implicit in that there should have been more men involved. The claimant's expert may have been critical of manual pushing as such, but the defendant's witnesses were supporting such a method. The judge was entitled to conclude that the manual method could be appropriate, had there being an adequate number of men doing the pushing. Whether there were enough was always an issue at this trial. I cannot see that the defendant suffered any unfairness in this respect.
32. I conclude that the judge was right to find that the defendant had not taken appropriate steps to reduce the risk to the lowest level reasonably practicable. It was therefore in breach of the substantive duty under Regulation 4(1)(b)(ii) and was liable in consequence in damages for the claimant's injury. It is conceded that the judge's finding as to the number of years acceleration of that injury cannot be challenged successfully if his findings as to the force applied by the claimant are sustainable on the evidence. In my judgment, for the reasons set out earlier, they are and I need not therefore deal further with the acceleration issue.
33. It follows that I would dismiss this appeal.

Lord Justice Rix:

34. I agree.

Lord Justice Waller:

35. I also agree.