JEFFREY RUSSELL O'NEILL v DSG RETAIL LIMITED [2002] EWCA Civ 1139

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
HER HONOUR JUDGE PEARCE
[2002] EWCA Civ 1139Case No Case No: B3/2001/1326Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
JEFFREY RUSSELL O'NEILLAppellantDSG RETAIL LIMITEDRespondent
Before
Lord Justice Peter GibsonLord Justice ChadwickMr Justice NelsonSimon Michael (instructed by Messrs Austins of Luton) for the AppellantRohan Pershad (instructed by Messrs Beachcroft Wansbroughs of London) for the RespondentDate 31 July 2002
[1]Mr Justice Nelson: This is an appeal against the decision of Her Honour Judge Pearce dismissing the Appellant's claim for damages for personal injuries in a judgment given at the Luton County Court on the 1 st June 2001. Permission to appeal was granted by Lord Justice Keene save in respect of Ground 5, which sought to overturn a finding of fact made by the Judge. An application to amend the Appellant's notice was made at the commencement of this appeal. Permission was given by this Court for an additional ground A1 to be added. The Grounds allege that the Judge failed to consider, or make findings as to, the applicability or breach of the Manual Handling Operations Regulations 1992, confused the concepts of foreseeability and causation, and came to conclusions on the issue of causation which were not reasonably open to her on the evidence. The Facts.[2]The Appellant was employed by the Respondent as a warehouse manager at its Curry's superstore at Eldergate, Milton Keynes. The Appellant's work included the stacking and moving of electrical goods. On the 10 th March 1997 there was to be a visit by the company's directors, and in preparation for this, the Appellant was moving a stack of about 100 microwave ovens in order to tidy the warehouse. The microwave ovens, each of which weighed between 15 – 20 kgs, were only being moved a short distance. The Appellant was performing the task himself by manual lifting, carrying and repositioning. Trolleys and sack trucks were available for his use, but he felt that it would have been a hindrance to use them; so he did not do so. After moving a number of the microwaves without difficulty, the Appellant was carrying another box, in the same manner as he had carried the others, holding it by the push handles about waist high, when he heard a call from one of his work colleagues. He turned towards the direction of the call, which had come from behind him, by twisting his body some 70 - 80º. He did not move his feet. As he twisted his body in this manner, he felt a sharp pain on the left side of his back which, on the agreed medical evidence resulted in tears of two discs in his lumbar spine.[3]The Appellant was aged 24 at the time of his accident and had been working as warehouse manager for the Respondent since September 1996. Before that he had been a civilian maintenance operative for the Luton Police Force and had then trained as a plumber. He acquired his City and Guilds and was apprenticed on building sites where he carried out all kinds of plumbing, involving some heavy lifting. During this period he acquired knowledge and awareness of the principles of manual handling. After that he worked as a senior systems clerk at a warehouse in an administrative capacity, but acquiring a sound knowledge of the process of receiving and despatching goods at warehouses. He was, prior to the accident, a fit active young man who attended a gym and did weight training regularly.[4]The Respondent issued its new employees with a staff handbook and a Health and Safety handbook. Clearly the work at the warehouse would involve manual handling and the Health and Safety handbook gave some guidance on lifting and handling. The Respondent established a colour-coded system by which products were marked with either green, amber or red stickers according to their weight. Microwaves of some 15 – 20 kgs came within the amber coding and were described as products which could be generally carried between knee and shoulder height by one person. Factors which affected the risk of manual handling were described, for example, as holding the product away from the body or excessive twisting of the trunk. The Respondent carried out a manual handling risk assessment in accordance with the Health and Safety Regulations. The October 1995 risk assessment stated that products between 10 and 20 kgs 'may present a hazard if held away from body, from excessive twisting of trunk, overstretching or lifting on steps or slopes. One person lift between knee and shoulder height (load held close to body)'. All staff had to be 'trained to understand and observe good handling techniques wherever possible. In particular staff should understand the effects of the following...twisting the body while supporting a load...' 'Ensure all staff have been trained and have seen the company video 'Think before you lift', and the 'Traffic Light' poster is displayed'.[5]The Respondent also produced a document entitled 'Stockroom Best Practice' which set out the colour coding system under the heading 'Traffic Light Classification'. This document contained both the instructions and the pictorial representation which are set out in the HSE Guidance on the Manual Handling Operations Regulations 1992. These instructions in the Stockroom Best Practice stated that one of the factors which affected the risk of lifting was 'twisting your body whilst supporting a load.' It gives advice as to good handling techniques including stopping and thinking, planning the lift, placing the feet properly, adopting a good posture, and under item 6 advises ' move your feet – don't twist the trunk when turning to the side'.[6]Mr Chavda, the Respondent's store manager, said that there were four posters set in various areas of the warehouse including the canteen and rest room which referred to the colour coding system and advice on lifting.[7]The Judge found as a fact that the Appellant had been given a copy of the Stockroom Best Practice document by Mr Chavda, and that the posters as described by Mr Chavda were in position at the Respondent's premises.[8]It was conceded by the Respondent that, in breach of their own policy, the Appellant had not been given practical training, nor had he been shown the video. The purpose of the training was to reinforce the risks involved in lifting and make employees aware of them by watching demonstrations of safe lifting and then practising such techniques themselves. The video contained demonstrations of safe lifting carried out by a famous sportswoman. It also contained material designed to train people out of the instinct to twist when carrying a load.[9]In his claim the Appellant alleged negligence and breach of the Manual Handling Operations Regulations 1992. Breach of regulation 4(1)(a) and 4(1)(b)(ii) were alleged. The relevant regulations are 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,…"[10]It is the duty under regulation 5 of each employee whilst at work to make full and proper use of any system of work provided by his employers under 4(1)(b)(ii). Schedule 1 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. Thus the employer must ask himself whether the tasks involved, for example, 'holding or manipulating loads at distance from trunk' or 'unsatisfactory bodily movement or posture, especially twisting the trunk, stooping, reaching upwards', or 'excessive movement of loads, especially, excessive lifting or lowering distances, or excessive carrying distances.'[11]The Appellant contended at trial that the Respondent was in breach of regulation 4(1)(a) as it failed to avoid the need for him to undertake the manual handling of the microwaves when that activity was a task which involved a risk of his being injured. Breach of regulation 4(1)(b) was also alleged on the basis that the Respondent failed to make a suitable and sufficient assessment of the task of manual handling, in particular having regard to the fact that the Appellant had had no manual handling training and that the warehouse was extremely full, so that the goods had to be lifted from above shoulder height and below knee height. There were in addition space constraints and the goods were heavy. Further, it was alleged that the Respondent had failed to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable arising out of the lifting and movement of the microwave oven, in particular by failing to institute a system to prevent the warehouse being overfilled, or train or instruct the Appellant adequately in safe lifting techniques or in the recognition of techniques or circumstances likely to cause him injury, such as twisting his trunk quickly while carrying a heavy load.[12]The allegations of negligence were essentially the same as those relating to breach of statutory duty.[13]The Appellant gave evidence at the trial, as did one of his colleagues, Mr Ross. He also called Mr Teesdale, the Environmental Health Officer who visited the premises after the accident, and an expert witness, Mr Mabey an Ergonomist and Health and Safety consultant. Mr Mabey's report was prepared on the 13 th April 1999 and was sent to the Respondent before the defence was served on the 28 th April 2000. Mr Mabey's report, although referring to lifting and handling aids and mechanical equipment, is clearly based upon the premise that the task which the Appellant was carrying out was a manual handling task. He states that the handling was not excessively heavy if handled correctly and places considerable emphasis on inadequate training. He concludes:- "A person trained in manual handling will think first of his own safety and safe placement of the load, and be inclined to disregard any interruption until the situation has been made safe. An untrained person will be much more likely to respond without considering his own safety and the safety of the load, to adopt poor postures and make jerky or twisting movements, making injury more likely."[14]The Respondent denied negligence or breach of the regulation, and denied that it was unreasonable or unsafe for the Appellant to be moving microwaves. It asserted that the Appellant had been properly trained and denied that the lack of any training had any causative effect as the Appellant 'responded instinctively' to the call from the colleague. There was no further pleading to the regulations and in particular no averment in the defence that it was not reasonably practicable to avoid manual handling.[15]The focus remained on regulation 4(1)(b)(ii) and training until the night before the hearing when counsel for the Respondent sent a list of authorities to counsel for the Appellant. On noting that the cases of King -v- RCO Support Services Limited 8.12.00 CA unreported and Hawkes -v- London Borough of Southwark 19.2.98 CA unreported stated that a defendant must expressly plead that the 'impracticability defence' if he is to rely on it, and that the burden of proving that defence lies on the employer, counsel for the Appellant contacted counsel for the Respondent and it appears discussed the matter with him. Counsel for the Respondent saw no reason to apply to amend his defence and did not seek to do so. The matter was not raised again until the final speech on behalf of the Appellant when it was submitted that as the impracticability defence had not been pleaded the court had to assume that manual handling could have been avoided altogether and hence there was a breach of regulation 4(1)(a). Counsel for the Appellant had deliberately decided not to raise the matter during the hearing but only at its conclusion. He considered this to be the better tactical approach than forcing what might be an application for an amendment, which in his view would inevitably require an adjournment so that both sides could consider the impracticability defence in detail with expert guidance. He did not wish his client to be disadvantaged by the delay that would, in his view, follow.[16]The Judge considered that the whole case had been prepared, conducted and fought on the basis of the impracticability defence and said that in any event the matter was covered in the Defendant's pleadings at para. 4(1) of the defence where it was denied that it was unreasonable or unsafe for the Claimant to be moving the microwave. She dismissed the whole claim. The Judgment.[17]It is necessary to set out parts of the judgment in detail in view of the fact that the Appellant contends that the Judge failed to make central findings which she should have made, confused the concepts of foreseeability and causation, failed to ask herself the correct question as to the applicability of the regulations, and came to a conclusion on the issue of causation which was not reasonably open to her on the evidence.[18]The Judge found that the Appellant made an instinctive and sudden movement in response to the call from a colleague, that this instinctive reaction was wholly unexpected, and that neither the particular circumstances nor the Appellant's reactions to it could have been foreseen. She found that no training could cover every eventuality and the training which he would have received would not have covered this particular event. She therefore concluded:- "..that nothing that the Defendant did or did not do could have prevented this accident, and it was not any breach of any regulation which was the causative effect of the accident." (A70)[19]The Judge rejected the submission that mechanical aids should have been provided for moving the microwaves as:- "..what the Claimant was on this particular occasion doing was well within the guidelines. There was no risk and the accident was not caused by the actual moving of the item concerned; it was the wholly unexpected reaction to a wholly unexpected situation which related to this particular Claimant, which he cannot explain, which caused the accident." (A69)[20]The Appellant accepted that instead of twisting his body he could have put the microwave down, he could have turned round instead of twisting or he could have shouted back. The Judge accordingly found that his instinctive and sudden twisting movement, which was 'wholly unexplained by him' could not have been expected or foreseen by anyone. The Judge identified the central issue in the case as:- "..whether, given the circumstances in which the accident occurred, any training or other device put in place by the Defendants could have avoided the accident." (A63)[21]The Judge found that whilst the Appellant had not received any training nor had he seen the video, he had received the Stockroom Best Practice document as well as the Health and Safety handbook and staff handbook. She accepted the evidence of Mr Chavda, the store manager, called by the Respondent, that the 4 posters had been put up to provide awareness of risks. The Appellant had told Mr Mabey that he had awareness of the principles of manual handling and lifting from doing weight training and from working on building sites. He had said that when turning with a load he would normally turn his feet rather than twisting his body and that this was something he had learned on the building site. The Judge recorded his evidence as follows:- "He accepted that the Health and Safety handbook which was given to him set out clear instructions on safe lifting methods, and that he already had knowledge of these methods. He accepted that he had gone through the manual and knew that he should not twist his body and was aware of the risk of injury if he did so." (A44).[22]The Stockroom Best Practice document contains instructions and information on lifting. The Appellant's evidence on this document is recorded as follows:- "None of the material set out in the diagrammatical instructions in those documents would have come as a surprise to him, as he had adopted the things suggested in the practice in any event, and if he had received visual training it would have done no more than told him what was in the practice book and what he already knew and had adopted in his working life." (A45 – A46).[23]The Judge therefore concluded that the Appellant had knowledge and awareness of weightlifting techniques and also of the risks and dangers involved and took those on board. He had adopted the procedures set out in the various Health and Safety documents and 'stated that the bottom line was that had he received any training, it would have told him no more than what he already knew and had adopted.' (A64).[24]On the issue of causation the Appellant relied upon the evidence of his expert, Mr Mabey, to the effect that it is possible to train an employee not to act instinctively but stop and think. Training should allow for the possibility of the unexpected to make people aware and how to respond even though they cannot be trained to respond to every eventuality. Mr Mabey's evidence had however been substantially discredited. The Judge found his oral evidence quite unsatisfactory and unconvincing. She found that Mr Mabey had come to a conclusion on, for example, over stacking being the cause of the accident when that conclusion was not supported by the evidence, and had expressed views which were no more than conjecture. His conclusions in his report sought to usurp the functions of the court. There was no evidence to suggest that the accident was caused as a result of repeated handling and lifting of heavy items without aids, as the Appellant had already successfully safely moved many microwaves earlier in the day and was holding the microwave in question securely in both hands and close to his body as required. Hence the finding made by the Judge that the Appellant was at the material time engaged in an activity within his capabilities and in accordance with the guidelines. He did not have to reach up or twist to move the load. The Judge held that she was not impressed with Mr Mabey's conclusions or opinions and his evidence did not inspire confidence or conviction. He failed to show objectivity.[25]In spite of the rigour of these findings, Mr Simon Michael, counsel for the Appellant, sought to persuade the trial judge as well as this Court that he placed no reliance upon Mr Mabey's evidence save as to one point, the effect of training on which Mr Mabey's evidence was uncontradicted. Indeed it was supported by the evidence of Mr Chavda who agreed that there was a lot in the video to train out of people the instinct to twist when carrying a load. Mr Chavda added that if training was applied properly, it helped. (A.14.41). The Judge made no reference to this evidence in her judgment.[26]The Judge said (A68F) that Mr Mabey accepted that it was not possible to train out of a person all instinctive behaviour. He also conceded that no training programme could have included the particular circumstances which occurred here. The Judge relied on this account of Mr Mabey's evidence as one of the bases of her finding that it was not lack of training, or the breach of any regulation, or the assessment of any risk which caused the accident. (A69B-D)[27]The Judge found that the evidence of Mr Ross did not advance matters and that the evidence of Mr Teesdale did not assist either. The only fault which he had found on his inspection related to over stacking, but only in respect of some goods in one particular area at the time that he visited. There was no evidence, the Judge found, to support any statement that the microwaves in stock were stacked above eye level. The Judge also rejected the suggestion that this accident was caused as a result of repeated handling and lifting of heavy items without aid.[28]There is no direct finding by the Judge as to whether the regulations applied to the task being performed by the Appellant. Nor is there any finding as to whether negligence had been proved or a breach of 4(1)(b) had been established. It is implicit in the judgment, but again without being spelt out, that the Judge rejected the contention that there was a breach of 4(1)(a). The submissions.[29]I shall deal with the submissions made by each party by reference to the grounds. A1 The learned Judge erred in finding that the task on which the Appellant was engaged was one which involved no risk.[30]The Appellant submitted that it is not clear from the judgment whether the Judge was making a finding that 'there was no risk' in the context of the Regulations, but if she was, she was not asking herself the correct question. She was muddling two different ideas by asking whether there was a foreseeable risk of injury if the Appellant twisted in precisely the circumstances in which he did twist his body, as opposed to asking whether there was a risk of injury generally in performing the task which the Appellant was performing. The precise manner in which the task was being performed was not the correct test for foreseeability; the nature of the task itself, in the context in which it was being carried out was the test which should have been applied.[31]The Appellant relies upon Koonjul -v- Thameslink Healthcare Services [2000] PIQR P123, Hawkes -v- London Borough of Southwark CA 19.2.98 unreported and Cullen -v- North Lanarkshire Council [1998] SC 451. These cases establish that risk of injury under the Regulations requires there to be a 'real risk, a foreseeable possibility of injury; certainly nothing approaching a probability' (per Hale LJ in Koonjul .)

Lady Justice Hale continued:- "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."

[33]There must however be an element of realism in making the assessment of the risk of injury and 'what does involve a risk of injury must be context-based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved.' (P127).[34]The appellant in the case of Koonjul had to move a bed away from a wall in a small residential home. She accepted that she had been taught to keep her knees bent and her back straight. She was some 47 years of age and knew from her many years of employment in a hospital how to go about tasks which involved pulling, pushing or lifting. She had also undergone a course on moving and handling at the University of Greenwich. Lady Justice Hale noted that 'the European Union directive upon which these regulations are based is particularly aimed at preventing injuries to the back.' On the facts of that case the Court of Appeal held that some risk could be envisaged from such an operation albeit with the reservations expressed. As however there were innumerable tasks around such a small residential home it was not practicable for each and every one of these tasks to be evaluated and precise warnings given to each employee as to how each was to be carried out. There was therefore no breach.[35]If those principles are applied to this case, the Appellant submits, the task being performed by the Appellant clearly involves a foreseeable possibility of injury. It could not be assumed for the purposes of considering risk in this context that each employee would always act carefully. Thus an employee might move too suddenly, or twist, or overreach or overstretch or fail to keep a straight back. Here, it must also be taken into account, the Appellant submits, that he had not received proper training.[36]The Respondent's own documentation indicated that it was aware of the need for such training as set out in the risk assessment documents (Court of Appeal bundle 287, 289). It acknowledged the existence of risk, not merely in its risk assessment (CA bundle 285) but also in its Stockroom Best Practice document in which it was acknowledged that the risks in carrying loads of 10 – 20 kgs were affected by excessive twisting of the trunk and that one of the factors which affected the risk of lifting was described as 'twisting your body whilst supporting a load'. (CA bundle 89, 91).[37]The Respondent submits that the risk should be assessed by looking at this particular injury and the manner in which it occurred, not at general risk. The manner in which the accident happened, namely that the Appellant would twist his body in the circumstances the Judge found, was not foreseeable. No risk of injury under the regulations could therefore be established. The question which had to be asked was, was there a real risk that such an employee doing this task would be so distracted that he would turn quickly. 1. The learned Judge erred in failing to find that the Respondent was in breach of Regulation 4(1)(a) of the Regulations.[38]The Appellant submitted that it was clearly established on the cases of King and Hawkes that the burden of proving it was not reasonably practicable to avoid the need for manual handling was upon the employer, and that if that issue was to be raised it had to be expressly pleaded. As it was not pleaded the issue had to be determined in favour of the Appellant. Furthermore the Judge was wrong in saying that the case had been prepared, conducted and fought on the basis of the impracticability defence, which in any event she appeared not to have understood, confusing it with causation. In fact she made no decision on impracticability but only on causation.[39]The focus was on 4(1)(b)(ii) until the Appellant's counsel had read the authorities sent to him by the Respondent's counsel the night before. It was not the Appellant's task to raise the matter, and then be faced with having to have an adjournment in order to deal with the new allegations. If the impracticability defence was pleaded there would have had to have been the costs benefit analysis envisaged in Edwards -v- National Coal Board [1949] 1KB 704 and cited in the case of Hawkes . The Appellant did not want a further adjournment and rightly left the issue to be raised by the Respondent upon whom the burden lay.[40]The Respondent relied upon the fact that Mr Mabey had dealt with the case both in his report and in evidence on the premise that it was a manual handling case. It was never said by him that manhandling could be avoided altogether in the performance of such a task and the Appellant's counsel had cross-examined Mr Chavda upon the basis that manual lifting was an important part of the Appellant's work.[41]The Judge was therefore right to find, the Respondent submitted, that no amendment was needed and the case had always been contested on the basis that it was not a task which could have been performed without manual handling. Mr Mabey's evidence as to the use of aids and equipment still envisaged part of the task being carried out by manual lifting.[42]In any event the Judge had all the evidence she needed to make a decision under regulation 4(1)(a) and a cost benefit analysis was totally unrealistic in a case such as this where commonsense dictated that it was inconceivable to describe this as anything other than a manual handling case. Had the Appellant wished to raise the matter he should have done so at the beginning of the trial rather than in a 'cloak and dagger manner' at the end. 2. The learned Judge erred in failing to find that the Respondent was in breach of Regulation 4(1)(b) of the Regulations.[43]It is submitted on behalf of the Appellant that the decision to provide new employees with the training video, give them the training course which involved practical demonstrations of lifting techniques, and require them to sit a Health and Safety test paper, demonstrated that the Respondent recognised that such steps were necessary and reasonable to reduce the risk to its employees. The failure to give the Appellant either the video or the training meant inevitably that they had failed to reduce the risk to the 'lowest level reasonably practicable' under regulation 4(1)(b)(ii).[44]It could not be contended, if the Respondent sought to contend this in relation to 4(1)(b) as well as 4(1)(a), that the failure to provide full training was merely the occasion for the injury and not its cause ( South Australia Asset Management Corp -v- York Montague [1997] AC 191 at 213D and Hossack -v- Ministry of Defence 18.4.00 CA unreported ). The injury which the Appellant sustained in twisting his back was the very injury which the Respondent sought to avoid through their training. Mr Chavda had confirmed that the video contained material to train people out of the instinct to twist when carrying a load and that training, if applied properly, helped. Furthermore the video and the practical training was meant to reinforce the injunction in the Stockroom Best Practice document to 'move your feet – don't twist the trunk when turning to the side.' The training and video were designed to reinforce that message which would be particularly relevant for a 24 year old, confident, young man. As the Respondents had designed the video and practical training for amongst other things this purpose, they could hardly contend that it was not designed to reduce the risk of injury.[45]The only logical conclusion was that there had been a breach of regulation 4(1)(b). It should be noted, the Appellant submits, that the obligation under regulation 4(1)(b)(ii) is to 'reduce the risk of injury' not to eliminate it.[46]The Respondent accepts that full training was not provided and that 'appropriate steps' under regulation 4(1)(b)(ii) includes training. Nevertheless, the Respondent submits that that cannot be determinative of the issue of whether the Defendant had failed to reduce the risk of injury to the lowest level reasonably practicable. This was an everyday task for which specific oral training could not amount to a breach of the regulation. The Judge's decision could not said to be perverse or made on the wrong legal principles. Furthermore the 'appropriate steps' could not include an obligation to train out instinctive responses. Such a level of training would not be appropriate in civilian life. 3. The learned Judge erred in finding that the accident was not foreseeable.[47]Mr Michael submitted that it could not be said that the task which the Appellant was performing was risk free. There was a foreseeable risk of injury inherent in the work whether by twisting or over reaching or other such action during the course of moving microwaves of that weight. The Judge should not have focused on the exact circumstances which led the Appellant to twist his body but should have asked whether there was a risk of him twisting whilst carrying out such work. The Guidance to the Regulations recognised the dangers of twisting and specifies that the maximum load should be reduced where the handler twists to the side during the operation. The Respondent's own documentation, including the risk assessment and the Stockroom Best Practice guide, shows that the Respondent itself regarded the risk of twisting while carrying a load as foreseeable even if the precise circumstances which give rise to the twisting cannot themselves be foreseen. In relation to the latter point however the Appellant submits that for an employee to turn in response to a call from a colleague cannot be said to be 'wholly unexpected'.[48]The Respondent submits that whether the accident was foreseeable or not is not relevant to the application of the regulations as the Claimant admitted that he knew the correct way to turn when carrying a load, that if he twisted his trunk he might cause himself injury, and that he reacted by twisting in a situation which was not urgent or pressing. The Judge's conclusion that the matter was not foreseeable was entirely sustainable. 4. The learned Judge erred in finding that the Appellant had not established causation.[49]The Appellant submits that on the balance of probabilities proper training would have avoided the accident. The Respondent recognised the risk of twisting when carrying a load and devised a practical training programme and a video in order to reduce this risk. The purpose of the training was to reinforce the need not to twist; it was not a question of training out the instinctive response but one of training in the awareness of safety. The practical training and the video would have reinforced the message, 'move the feet, don't move the body'.[50]Had the Respondent not itself considered that it was necessary to reduce this risk they would surely have not set up the training that they did. Mr Chavda's answer (A14.41) that one of the purposes of the video was to train people out of the instinct to twist when carrying a load and that this message featured a lot in the video confirmed the fact that the Respondent was of the view that such training was likely to reduce the risk rather than have no effect. Training was particularly required in the case of a new employee only some 24 years old with, inevitably, all the confidence of his age and inevitably, with limited experience of regular lifting.[51]The recognition of the risk of twisting when carrying a load by the Respondent, the institution of the practical training and video, and Mr Chavda's evidence supported Mr Mabey's evidence that whilst you cannot train an employee to respond to every eventuality, the purpose of training is to instil awareness of the need not to react instinctively when in the middle of handling, no matter what the interruption. For his part Mr Mabey believed that such training would have changed the Appellant's behaviour and there was no evidence to the contrary, indeed Mr Chavda's evidence gave some support by stating the training, if applied properly, helped.[52]Where the Judge recorded that Mr Mabey accepted that it was not possible to train a person out of all instinctive behaviour she did not record his evidence that proper training would have covered not reacting instinctively and that he held the honest belief that training could have achieved that. Furthermore when the Judge recorded Mr Mabey as saying that the training programme would not have covered the particular event, she did not apparently take into account that he also said that 'training should cover unexpected situations'. The Judge's finding at A68F suggests that Mr Mabey was conceding that the Appellant could not have been trained out of the instinctive response which in fact occurred in this particular case. Mr Mabey however on a proper reading of A14.34 and A14.37 was not saying that.[53]In the circumstances, the Judge's finding that no amount of training would have prevented the response to his colleague's call was contrary to the evidence and outside the range of reasonable decision making open to her. The connection between the failure to give proper training and the accident was clearly established.[54]The Respondent submits that the Judge applied the proper test as to whether the Appellant could show that the accident would have been avoided if the employer had given proper training. This was the question which in effect the Court of Appeal asked itself in Warner -v- Huntingdonshire District Council 16.5.2002 unreported. In that case the trial judge rejected allegations of negligence and breach of the Manual Handling Operations Regulations in the case of a dustman who had hurt his back moving refuse sacks. The issue was whether the failure to provide training amounted to negligence or a breach of the regulations. The Court of Appeal held that there was no evidence to show that the way in which the appellant in fact approached his work was a method which training could have affected in any way. There was no evidence as to what benefits training could have achieved. As he was unable to establish causation, even if the appeal as to negligence and breach of statutory duty succeeded, the appeal was doomed to fail.[55]In view of Mr O'Neill's knowledge of the principles of heavy lifting, the fact that he had the Stockroom Best Practice document, knew all the risks and knew the techniques, the finding on causation by the Judge in this action could not be said to be perverse. It was not possible to train out any instinctive response and even Mr Mabey did not say in his report that training would eliminate such a response but that it 'modifies instinctive behaviour such as this and encourages the more considered and risk aware response'. (CA bundle 196). Conclusions. A1. Risk of injury under the Regulations.[56]I adopt the tests set out by Lady Justice Hale in Koonjul . There must be 'a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability'. When assessing risk the employer must take into account that his employees will not on all occasions behave with full and proper concern for their own safety and the particular operation being carried out in the context of the particular place of work and the particular employee must be considered. Such consideration does not involve examining the precise detailed circumstances of what occurred in each accident, as if that were the case, the regulations might not apply in cases where an employee had acted negligently. This would restrict the application of the Regulations unduly. Schedule 1 of the Regulations clearly poses questions relating to the task to be performed generally. This reinforces the view that it is the particular task which is to be considered, in the context of where it is to be performed and the particular employee who is to perform it. These questions all go to the nature of the task and the risks involved in how it is likely to be performed rather than the precise detail of how it is in fact performed.[57]The Respondent carried out a risk assessment in relation to manual handling of items such as microwaves of this weight. Their Stockroom Best Practice document acknowledged the risk of twisting the body whilst supporting a load of 10 – 20 kgs. They set up a training programme which included a video containing scenes and demonstrations specifically designed to reduce instinctive responses.[58]When the failure to give the Appellant the designed practical training and video is taken into account, I am satisfied that there was a 'foreseeable possibility of injury' in carrying out this particular task.[59]Furthermore, it is because of the recognition of instinctive reactions, such as turning towards somebody who calls out, that training is recognised to be necessary. This reinforces the existence of the risk and the Respondent's knowledge of it.[60]If, and it is not entirely clear from the face of the judgment, the Judge was intending to hold that there was no risk of injury under the Regulations, it is my view that she was wrong to do so. There was such a risk and regulation 4 prima facie applied to the work being performed. If the Judge did not make a direct finding as to the applicability of the regulations she should in my judgment have done so. It was a relevant matter in issue before her. 1. Regulation 4(1)(a) of the Regulations.[61]This Ground of Appeal is misconceived. Whilst Regulation 4(1)(a) was pleaded in the Particulars of Claim, no evidence was adduced by the Appellant in support of that allegation at the trial. Had Mr Mabey considered that this was a case where the task should have been undertaken without any manual handling at all I have no doubt that he would have said so in his report. He did not. It is entirely clear from his report and the evidence which was given at the trial that his view was this was a task which inevitably involved some manual handling, even if mechanical aids had been provided and used. The main thrust of his report was that this was a case where the principal failure of the Respondent was the failure to provide proper training for the manual handling which had to be carried out.[62]The proposition that all such handling in the Respondent's warehouse, and by implication throughout the UK, needed to be fully automated, had to be raised in the Appellant's expert report if it was to be raised. The manner in which Mr Mabey's report was expressed would have led a reasonable defendant to the view that it was accepted that this was a case where manual handling, at least in part, had to be performed.[63]If breach of Regulation 4(1)(a) was to be raised by the Appellant, it should have been raised at the outset of the trial so that any issue upon it could have been determined by the Judge before the evidence was given. The failure to take the point at the beginning of the trial, but only in final speech, was contrary to the spirit of the CPR.[64]I do not consider that the Judge was correct in saying that the matter was covered in any event by para. 4(1) of the defence. The issue was not in fact pleaded. Even if, however, the Appellant was correct in asserting that as the burden of proof lay upon the Respondent, the point was properly before the court, I for my part am satisfied that there was ample evidence before the Judge for her to make the finding that there was no breach of Regulation 4(1)(a). The task was clearly one which required manual handling at least in part, and the evidence before the Judge was sufficient for her to come to that conclusion. In my view therefore the point did not arise, but in any event the Judge was perfectly entitled to deal with it and find implicitly that there was no breach of Regulation 4(1)(a). 2. Breach of Regulation 4(1)(b) of the Regulations.[65]The Judge failed to consider whether or not the Appellant had established a breach of Regulation 4(1)(b)(ii). This was an important allegation in the Appellant's case and should have been the subject of an express determination. For the reasons set out below the consideration of causation in isolation, without considering the nature of the breach alleged to have caused the loss, was an error which rendered the task of assessing causation more difficult.[66]Once the Respondent conceded that the practical training which it had designed to increase awareness of the risk of injury had not been given and that the video, designed in part to train employees out of the instinct to twist when carrying a load had not been shown to the Appellant, and it had been conceded that such training could be regarded as 'appropriate steps' under 4(1)(b)(ii), a prima facie breach of that regulation was established. The submission by the Respondent that the 'appropriate level' of training could not include the training out of instinctive responses, cannot be correct. The obligation under the Regulation is to 'reduce the risk of injury' not to eliminate the risk of the injury.[67]The Respondent's submission that the task involved here was an every day task for which the omission of specific oral training could not amount to breach of the regulation when documentary training had already been delivered, does not in my judgment accord with the wording of the regulation which requires the employer to take the appropriate steps to reduce the risk of injury 'to the lowest level reasonably practicable'. This must include steps in training which the employers themselves have recognised as being necessary to increase awareness of risk. This case is to be contrasted with Koonjul where the employers had not acknowledged the need for training nor set it up.[68]In my judgment 'appropriate steps' does include training as the Respondent conceded and once it has been established that training designed to increase awareness of risks and a video to warn of the dangers of instinctive reaction have not been given or shown, the risk of injury has not been reduced to the lowest level reasonably practicable. It must be reasonably practicable to put into practice the level of training which the employer had decided is appropriate, and in fact gives to many, if not most, new employees.[69]In my view there has been a clear breach of section 4(1)(b)(ii) on the evidence before the Judge. 3. Reasonable foreseeability.[70]As the Respondent submits, it is not clear how the foreseeability of the accident is relevant save in so far as the court has to ascertain whether there is a foreseeable possibility of injury in order to determine whether the Regulations apply. The Judge made no specific finding in relation to the application of the regulations and appears to be saying that it was the precise circumstances in which the accident happened which were 'wholly unforeseeable and could not have been foreseen by anyone'. It is not a necessary part of the test of foreseeability of injury that the precise circumstances in which an accident occurred must be foreseen. ( Hughes -v- The Lord Advocate [1963] AC 837 . ) It is not however clear what finding the Judge is making as to foreseeability except, as the Respondent submits, making a finding that the Appellant knew that he might sustain an injury if he twisted, but reacted in an unexpected and an unforeseeable manner by twisting when he was called even though that call was neither urgent nor pressing.[71]On the facts of this case I would for my part, find that the risk of an employee twisting whilst carrying a load was an event which was foreseeable and one which the Respondent itself had foreseen as it had provided training to deal with the potential problem. The risk was more obvious, as I have indicated in that part of the judgment dealing with the risk of injury under the regulations, where the training which should have been given to make employees aware of the risk of instinctive reaction such as twisting, was not in fact given.[72]The Guidance to the regulations, the Respondent's own risk assessment and Stockroom Best Practice guide, further demonstrate that the Respondent itself recognised the risk of twisting whilst carrying a load as foreseeable even if the precise circumstances which gave rise to the twisting could not themselves be foreseen.[73]In so far therefore as it is a relevant finding in relation to negligence as opposed to the application of the regulations, I find that the accident was reasonably foreseeable and if the Judge was making a specific finding to the contrary at A69, she was in error. 4. Causation.[74]The Judge found that it was the wholly unforeseeable, wholly unexpected instinctive reaction of the Appellant which caused the accident. It was not the lack of training or the breach of any regulation or the assessment of any risk which did so. 'No training can cover every eventuality, and the training which he would have received would not have covered this particular event'. (A69B-D)[75]The Judge does not refer, when dealing with causation, to her findings in relation to the Appellant's own knowledge and awareness of weight lifting techniques nor his evidence that if he had received any training it would have told him no more than what he knew and had adopted. One would expect however that she would have had these in mind even though she bases her finding on the fact that no training can cover every eventuality and the training which he would have received would not have covered the particular event.[76]The Judge's finding on causation is a finding of fact, (subject to the correct question in law having been asked), and cannot be challenged on appeal unless the Judge failed to consider the issue properly or applied the wrong test or made a decision which was outside the range of reasonable decisions open to her.[77]In my judgment the failure to consider Mr Chavda's evidence that the video included material designed to train out of people the instinct to twist when carrying a load, was a serious omission. This evidence given by the Respondent's store manager was an important concession, central to the issue of causation. It acknowledged that the Respondents themselves recognised the risk of twisting when carrying a load, the need for training to reduce the risk of that occurring, and the setting up of such training. It was, in my judgment, essential to consider these matters in order to make a proper assessment of the issue of causation. Furthermore, I for my part am not satisfied that the Judge properly considered Mr Mabey's evidence on the issue of causation. It appears that she regarded him as making a concession that training would not have covered the particular events which occurred when Mr Mabey was in fact saying that whilst the example of the need to avoid twisting to a call from a colleague would not have been specifically covered by training, not reacting instinctively would have been, and it was his honest belief that training could achieve that. When Mr Mabey's evidence is taken as a whole, and Mr Chavda's evidence on the issue is considered, the picture before the Judge was different in important respects from that which she painted.[78]The Judge should have taken into account these matters together with the fact that it was the Respondent who set up the training specifically for the purpose of making employees aware of this kind of risk. They must therefore have considered themselves that such training was necessary and worthwhile, and it can be inferred, likely to reduce risk. The Appellant was a young man, and a relatively new employee. The training was specifically designed to make someone like the Appellant aware of the risk and pause and think.[79]It is easy to conflate the issues of foreseeability and causation as these questions are to some extent interrelated. Where however a breach of regulations is alleged, the proper approach for the Judge would have been to consider first of all whether there was such a breach, and if so, the nature of such breach. It is only against that background that the issue of causation should have been considered. The purpose of the regulations is to protect employees from injuries to the back, and a breach of the regulations gives a right to cause of action for damages. These are both factors which should be taken into account in assessing whether there is a causal connection between the injury and the employer's breach of duty to his employees. 'The concepts of fairness, justice and reason underlie the rules which state the causal requirements of liability for a particular form of conduct (or non-causal limits on that liability) just as much as they underlie the rules which determine that conduct to be tortious. And the two are inextricably linked together: the purpose of the causal requirement rules is to produce a just result by de-limiting the scope of liability in a way which relates to the reasons why liability for the conduct in question exists in the first place.' (Per Lord Hoffmann in Fairchild -v- Glenhaven Funeral Services Limited [2002] 3WLR 89 et 125 )[80]As a consequence of this approach an employer will not be able to escape liability for a breach of statutory duty, even though it had been brought about by the act or omission of his employee who claims damages for that breach unless he could prove that his breach was no more than that created by his employee, i.e. co-extensive with the employee's breach, and further that he had done all that he reasonably could to ensure compliance with the regulations by the employee. Boyle -v- Kodak [1969] 1WLR 661 .[81]This principle has been considered in a case where a site supervisor tripped over a piece of furniture, which, in breach of the Workplace (Health Safety and Welfare) Regulations 1992 was causing an obstruction. Anderson -v- Newham College of Further Education 25.3.02 CA unreported. Lord Justice Sedley said, obiter, that the case of Boyle was authority for 'how high a standard of proof is required to shift the entire blame for a breach of statutory duty to the injured employee himself.' Lord Justice Sedley appears to consider that the principle in Boyle would apply equally to the case of a breach of statutory duty brought about by someone other than the injured employee. The Court of Appeal in Anderson concluded that the concept of 100% contributory negligence in a case involving breach of statutory duty was misconceived as 'if there is liability, contributory negligence can reduce its monetary quantification, but it cannot legally or logically nullify it.' (para. 18)[82]Whilst Lord Justice Sedley in Anderson was considering Boyle in a context of breach of statutory duty and an allegation of 100% contributory negligence, the dicta as to the extent of Boyle , is also relevant to the question of causation. It is perfectly possible for a claimant to be entirely to blame for an accident as a matter of causation, but such a finding can only be made where consideration has been given to the nature of the employers' breach of regulation, whether it was designed to protect the employee's safety and welfare and whether the breach occurred independently of any fault on behalf of the employee.[83]It is said that causation can be regarded as a matter of common sense. It might be said in this case that it would be common sense to say that the Appellant read the literature, knew of the risks and was therefore wholly to blame for the accident. The counterbalancing argument however is that if the employers spent time and money devising a system which sought to make their employees aware of the dangers of instinctive reactions and trained them in order to reduce the risk of injury from them, such training must have been thought to have been effective; otherwise the employers would not have devised it. The whole factual matrix needs to be considered and this is what the Judge failed, on the facts of this case, to do.[84]Had the Judge considered Mr Chavda's evidence together with Mr Mabey's evidence, and found, as she should have done, that the Respondent was in breach of regulation 4(1)(b)(ii) she should have concluded that the failure to train was on the balance of probabilities a cause of the accident in that had it been given the Appellant would have paused to think before responding instinctively to a colleagues call.[85]In so far as the Respondent contends that any breach of regulation 4(1)(b)(as opposed to breach of regulation 4(1)(a)) merely provided the occasion for the injury and did not cause it, I reject that argument. The very purpose of the training was to reduce the risk of responding instinctively, which is precisely what the Appellant did. Such a failure amounting to breach of the regulation, was not in my judgment merely the occasion for the injury but a cause of it.[86]The appeal should be allowed. The Judge failed to consider properly the applicability of the Manual Handling Operations Regulations 1992. Had she done so properly she would have found that the regulations applied and that the Respondent was in breach of regulation 4(1)(b)(ii). The Judge failed to take into account vital evidence from the Respondent's store manager, Mr Chavda, that the video was designed to train people out of the instinct to twist when carrying a load, and as that was the very purpose of the practical training and the video, that evidence, together with a proper view of Mr Mabey's evidence, should have been considered on the issue of causation. When it is so considered in the context of a breach of regulations being established, the Judge should have found that the breach of the regulation in failing to train was a cause of the accident. Lord Justice Chadwick :[87]Regulation 4(1) of the Manual Handling Operations Regulations 1992 (1992/2793) – made under section 15(1) of the Health and Safety at Work etc Act 1974 – imposes on an employer a duty (a) so far as is 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 or (b), where it is not reasonably practical to avoid that need - (ii) 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 possible.[88]It is plain that the two limbs of that duty are complementary, but mutually exclusive. It is plain, also, for the reasons set out by Mr Justice Nelson, that this is not a case in which the appellant could, or can now, rely on regulation 4(1)(a). It could not be said that it was reasonably practicable for the employer to avoid the need for the appellant, a warehouse manager at a Curry's superstore, to undertake any manual handling operations which involved the risk of his being injured. Some manual handling operations involving the risk of injury were an inherent feature in what the appellant was employed to do. The relevant duty under the 1992 Regulations in the present case was that imposed by regulation 4(1)(b)(ii). The employer was required to take appropriate steps to reduce the risk of injury to the lowest level reasonably practical.[89]There were, therefore, two questions for the judge to consider:(i) had the employer taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable; and(ii) if not, was the employer's failure to take those steps a cause of the injury. But the judge did not approach the matter in that way. She directed herself (transcript, page 27D) that "the central issue in this case is whether, given the circumstances in which the accident occurred, any training or other device put in place by the Defendants could have avoided the accident". She held (transcript, page 34A) that "nothing the Defendant did or did not do could have prevented this accident, and that it was not any breach of any regulation which was the causative effect of the accident".[90]The process of reasoning which lead the judge to that conclusion may, I think, fairly be summarised as follows:(i) the injury occurred because the appellant turned his body (without moving his feet) while carrying a microwave oven weighing between 15 and 20 kilograms (transcript, page 7D);(ii) the appellant knew that he should not twist his body when carrying a load and knew of the risk of injury if he did so (transcript page 8E-F);(iii) the appellant did not need to (and did not) turn his body in order to carry out the task in which he was engaged (transcript, page 29C-D); rather, he turned his body in response to a colleague's call (transcript, page 7D-F);(iv) the appellant did not need to turn his body in order to answer the call (transcript, page 29G);(v) the fact that he did so was "the instinctive reaction of this particular Claimant" (transcript, page 33C);(vi) the appellant's instinctive reaction – and, I think, the colleague's call – "were wholly unforeseeable and could not have been foreseen by anyone" ( ibid );(vii) the expert (Mr Mabey) had conceded that it was not possible to train out of a person all instinctive behaviour and that "no training programme could have included the particular circumstances which occurred here" (transcript, page 32F-G); and(viii) because the training would not have covered "this particular event", training could not have prevented the accident occurring (transcript, page 33D-E).[91]The judge made no finding that the risk of this injury to the appellant occurring in the way that it did had been reduced "to the lowest level reasonably practicable", whether by steps taken by the employer or otherwise. She made no finding as to any further steps which could have been taken by the employer (within the parameters imposed by the word "appropriate") to reduce that risk to the lowest level reasonably practicable. In the absence of any finding on those points, she was never in a position to decide whether the failure to take such further steps as the employer ought to have taken to reduce the risk of this injury occurring in the way that it did was a cause of the injury.[92]Had the judge addressed the question whether there were further steps which could - and so should – have been taken by this employer to reduce the risk of an employee who was engaged in manual handling injuring himself through instinctive re-action to an unexpected event, she would have been bound to conclude that there were. The possibility of injury occurring in that way was obviously foreseeable and had been foreseen. That was the evidence of Mr Chavda, the store manager. He agreed in cross-examination that there was a lot in the employer's training video "Think before you lift" to "train out of people the instinct to twist when carrying a load". The inclusion of such material in the training video is a clear indication both that the employer thought that there was a need to train employees not to react instinctively to the unexpected; and that the employer thought that training could have some effect. As Mr Chavda put it:
"if training is applied properly it helps."
And he agreed that proper training went beyond providing the employee with a training manual. Proper training required, at the least, attendance at a training course and sight of the training video. The appellant had not received that training. It is plain, therefore, that the employer was in no position to resist a finding that there were appropriate steps which it could and should have taken (but which it did not take) to reduce the risk of injury resulting from instinctive re-action to an unexpected event.[93]In those circumstances the judge ought to have held that the employer was in breach of the duty imposed by regulation 4(1)(b)(ii). She should then have gone on to consider what further steps could and should have been taken by the employer to reduce the risk of an employee who was engaged in manual handling injuring himself through instinctive re-action to an unexpected event to the lowest level reasonably practicable. There was evidence in relation to that issue from two sources. First, there was the evidence of the employer itself, given by Mr Chavda, to which I have already referred. Appropriate steps to reduce the risk of injury must have included, at the least, providing the employee with training on a manual handling training course and requiring him to watch the video. Second, there was the evidence of Mr Mabey, which was not challenged on this point. He told the judge that the training to be given on a manual handling course "should cover unexpected situations"; it should train the employee "not to react instinctively when in the middle of handling, no matter what the interruption"; it should instil in the employee the need to complete the handing operation notwithstanding that "an alarm bell might go off, something might be dropped, a forklift truck might come in." If she had addressed the question what further steps could and should have been taken by the employer to reduce the risk of an employee who was engaged in manual handling injuring himself through instinctive re-action to an unexpected event to the lowest level reasonably practicable, the judge would have been bound to hold, in the light of that evidence, that those further steps should have included training of the kind which Mr Mabey had described.[94]The judge should then have asked herself the question whether the employer's failure to provide training of the kind which Mr Mabey had described was a cause of the appellant's injury. It is no answer to that question to point out, as the judge did (transcript, page 32E), that Mr Mabey had accepted (as he was bound to accept) that training – or, more precisely, training within the parameters acceptable and appropriate in the context of employment as a warehouse manager – does not "train out of a person all instinctive behaviour". Nor to point out (transcript, ibid and at page 33D) that Mr Mabey had accepted that "no training programme could have included the particular circumstances which occurred here". The relevant question was not, as the judge seems to have thought, "would training have prevented this accident occurring?" The relevant question – as I have said – was whether the employer's failure to provide training was a cause of the appellant's injury. And, in relation to that question, Mr Mabey's evidence was unequivocal. In oral evidence he had said this:
"I agree that specifically avoiding twisting to a call from a colleague would not be covered by training, but not reacting instinctively would have been. It is my honest belief that training could have achieved this. The essence of the point is that there is a difference between knowledge and behaviour. Knowledge can be inculcated through documents. Behaviour is the application of knowledge. You can't change behaviour by giving employees documents. This is where training comes in – to change behaviour. I believe training would have changed the claimant's behaviour. . . . I believe that by providing training, Mr O'Neill's instinctive reaction would not have occurred. This is the very basis on which manual handling training stands. You train people and it is generally recognised that training is necessary in the field to prevent people reacting; that it works to make people stop and think, and do it safely. "
[95]The judge was not impressed by Mr Mabey as a witness. For the reasons which she gave in her judgment, she thought that he lacked objectivity and was seeking to usurp the function of the court. She said (transcript, pages 32H-33A) that his evidence did not inspire any confidence or conviction. But his evidence that appropriate training can alter instinctive behaviour is not inherently incredible – indeed, to my mind, it seems uncontroversial – and his opinion, as an expert with twenty years' experience in the field of ergonomics consultancy and research, that training would have had that effect in the present case should not have been dismissed without a reasoned rebuttal. The judge did not hold that Mr Mabey was not qualified to give an expert opinion on the point; nor that his evidence was not an honest reflection of his views.[96]The view of a trial judge on a question which turns on opinion evidence – reached with the benefit of seeing and hearing the expert witness – is, of course, entitled to respect. An appellate court should not interfere unless convinced that the judge is wrong. But, in circumstances where the judge has approached the issue on the wrong basis – and has asked herself the wrong question – those considerations have much less force. I am persuaded that, on the evidence in this case, the only possible answer to the question whether, on the balance of probabilities, the employer's failure to provide training was a cause of the appellant's injury is that it was.[97]For those reasons I, too, would allow this appeal. Peter Gibson L.J.:[98]I also agree that this appeal should be allowed. I add a few words of my own in deference to the full and careful judgment of the Judge from whose decision we are differing.[99]The questions for the Judge were whether the Claimant established that the Defendant was in breach of Regulation 4 (1)(a) or (b) of the Manual Handling Operators' Regulations 1992 and, if so, whether the breach caused the injury suffered by the Claimant.[100]On Regulation 4(1)(a), there is nothing which I would wish to add to what Nelson J. has said and with which I agree.[101]On Regulation 4(1)(b), the question is whether the Defendant was in breach of its duty to take appropriate steps to reduce the risk of injury to its employees arising out of their undertaking manual handling operations at work which involved such a risk to the lowest level reasonably practicable. That there was a recognised risk of injury to employees undertaking manual handling operations is manifest from the Defendant's own literature and from the steps which it laid down should be taken through its training programme for all new employees. Thus the Health and Safety section of the Defendant's Stockroom Best Practice Manual starts with the statement:
"The stockroom is arguably the most hazardous part of the store", and after reference is made to accidents arising from manual handling this is said: "
Manual handling is unavoidable in the operation of our stores. However there are steps that you can take to reduce the risk of injury." There is then set out the advice to which Nelson J. has referred, including that the employee should not twist his body while supporting a load. In the Managers' Operation Manual, the Defendant in the Health and Safety section acknowledges its duty to provide adequate instruction and training to employees and under "Training and Information" it is stated that all staff must receive adequate training on manual handling and that it should be ensured that all new starters are shown the training video.[102]In my judgment it is plain that the Defendants by not giving the Claimant training and by not showing him the training video failed to reduce the risk of injury to the lowest level reasonably practicable. It is no answer to say that the Claimant was a fit young man who did weight training and had awareness of the principles of manual handling. Such a person may well have a false confidence in his ability to handle heavy goods safely. The Defendant in its literature properly recognised that all employees, without exception, should receive the training. In my judgment the Judge was wrong not to find a breach of the duty in Regulation 4(1)(b)(ii).[103]The more difficult question in this case is whether causation is established, given that the Judge expressly found that there was nothing that the Defendant did or did not do which could have prevented the accident and that it was not any breach of any regulation which was the causative effect of the accident. In so doing the Judge expressed her strong dissatisfaction with the report of Mr. Mabey, the Claimant's expert, and found support for her conclusion in the oral evidence of Mr. Mabey.[104]We do not have a transcript but we do have detailed notes of the evidence of Mr. Mabey and Mr. Chavda, the store manager, supplied by Counsel which the Judge has helpfully supplemented from her own notes. Given that Mr. Michael for the Claimant only relied on Mr. Mabey's evidence so far as it related to training and given that that evidence was not controverted by Mr. Chavda, who supported it in a material respect, I do not think that the Judge in her judgment has given proper effect to that uncontroversial evidence. Mr. Mabey's clearly expressed view in his report was:
"One of the benefits of manual handling awareness training is that it modifies intuitive behaviour such as [the Claimant's turning in response to his colleague's call from behind while carrying a load] and encourages a more considered and risk-aware response" (para. 3.6.6). He said, "
I do not believe that he would have responded in this way if he had been made better aware, by training, of the risks of injury from sudden or jerky movements, especially with a twisted spine" (para. 4.1). And again at para. 4.7:
"A person trained in manual handling will think first of his own safety and safe placement of the load, and be inclined to disregard any interruption until the situation has been made safe. An untrained person will be much more likely to respond without considering his own safety and the safety of the load, to adopt poor postures and make jerky or twisting movements, making injury more likely."
[105]In his oral evidence Mr. Mabey adhered to that view. He accepted that training would not specifically cover the situation which occurred in the present case, that of twisting when called by a colleague, but he said:
"However, training should cover unexpected situations. I believe correct training would have covered this situation by training the employee not to react instinctively when in the middle of handling, no matter what the interruption, because handling requires all one's concentration. They should complete the handling operations. Training should instil that. An alarm bell might go off, something might be dropped, a forklift truck might come in."
And a little while later:
"I agree that specifically [avoiding] twisting to a call from a colleague would not be covered by training, but not reacting instinctively would have been. It is my honest belief that training could have achieved this .... You can't change behaviour by giving employees documents. This is where training comes in – to change behaviour. I believe training would have changed the claimant's behaviour .... I believe that by providing training, Mr. O'Neill's instinctive reaction would not have occurred. That is the very basis on which manual handling training stands."
[106]Whilst Mr. Mabey said, as the Judge recorded, that it is not possible to train out of a person all instinctive behaviour, she gave no effect to his expert view that training would have prevented the accident. Moreover she did not acknowledge Mr. Chavda's acceptance that it was best to provide training rather than simply give an employee a document. He further agreed that there was a lot in the Defendant's training video to train out of people the instinct to twist when carrying a load and that if training is applied properly, it helps. There was no other evidence to cast doubt on what Mr. Mabey said about training.[107]In these circumstances I reach the conclusion that the Judge failed to consider the evidence on causation before her properly, as she should have done in the light of the breach of Regulation 4(1)(b)(ii). Had she done so, I think that she would have been compelled to reach the conclusion that the breach was a probable, though not a certain, cause of the injury.[108]For these as well as the reasons given by Chadwick L.J. and Nelson J. I too would allow the appeal.

Cited in 2 later judgments