SPENCER v BOOTS THE CHEMIST LTD [2002] EWCA Civ 1691

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRIGHTON COUNTY COURT

(HIS HONOUR JUDGE BARRATT)

[2002] EWCA Civ 1691

Case No B3/2002/0708

Venue Royal Courts of Justice, Strand, London, WC2, Thursday, 31 October 2002

Between

SPENCERAppellant

BOOTS THE CHEMIST LTDRespondent

Before

Lord Justice Mance

Lord Justice Latham

MR JOHN GALLAGHER (instructed by Dean Wilson Laing of Brighton) appeared on behalf of the Appellant

MR WILLIAM VANDYCK (instructed by Eversheds of Nottingham) appeared on behalf of the Respondent

Date 31 October 2002

LORD JUSTICE MANCE:

This

[1]is an appeal with the permission of Lord Justice Ward from the decision of His Honour Judge Barratt, sitting in the Brighton County Court, on 12 March 2002 by which, after a two-day trial, the judge dismissed the appellant claimant's claim for damages against his former employers, Boots The Chemist Ltd. That was a claim for damages for personal injury consisting of pericapsulitis or painful rotative cuff injury to the left shoulder leading ultimately to the need for an operation, and having long term effect.

[2]The appellant was and is a pharmacist. He worked for Boots for many years between 1970 and April 1997 and he became a store manager of a very busy dispensing pharmacy in Bulwell, Nottingham in 1981. For a part of 1996 he was seconded to other stores and assignments but he returned to Bulwell in September 1996, and within a matter of a relatively short time thereafter began to suffer what Boots accept to have been a work related condition of the sort I have mentioned. His general practitioner notes first mentioned this on 27 January 1997. A Boots occupational therapist who saw him on 20 January noted "approx 6 weeks of aching left shoulder" and "bottles for dispensing".

[3]Immediate action was taken and the appellant received physiotherapy two mornings a week. Suggestions were made that he change his duties and that he move to another store where the dispensing work was lighter but he decided not to do so.

[4]The judge rejected criticisms that Boots had not responded appropriately. The issue was whether they were responsible for the original injury. The judge had the benefit of experts as well as factual evidence. The expert evidence was in the form of a written report from a single joint expert and ergonomist, Mr Ridd. The judge also heard from the appellant himself who was the only oral witness. He saw some photographs which were produced to the ergonomist report showing the pharmacy. On this basis the judge found that the cause of the injury was as follows: the Bulwell pharmacy had a dispensary and a reception or customer service counter. Between these two areas was another area where two pharmacists worked checking medicines prescribed before bagging them and putting them out for the reception staff to deliver to customers. This process involved comparing the type and quantity of whatever was prescribed against the stock from which it had come and against the doctor's written prescription. After checking, the stock bottles were either thrown away empty or put in a returns tray. All this took place at a counter which was no more than 1200 millimetres wide by 1000 millimetres high and 600 millimetres deep. Two pharmacists worked at the 1200 millimetres wide space. The returns tray in which the stock bottles was put was behind the middle of this counter on top of a shelf which was itself about 1550 millimetres (5 feet 6 inches) above floor level. The sides of the tray meant that the stock bottles had to be lifted a further 90 millimetres above the shelf height in order to be put into the tray. The claimant being left-handed was able to work efficiently standing on the right of the other pharmacist facing the shelf. Because he was probably the only left-hander he worked longer hours at the counter than other right-handed pharmacists who would take it in turns.

[5]The period of Christmas 1996 was, it appears, a particularly busy period. The claimant's case was that during a six-and-a-half hour stint on a particular day he would deal with as many as 250 prescriptions, each, on average, involving two-and-a-half items. This would give a checking time of 90 seconds and an average handling time of 37 seconds. Although the judge did not specifically endorse these figures, he found that the pharmacy was the fifth busiest operated by Boots in the whole country and he clearly accepted that the claimant was very actively engaged indeed in an activity which led to his injury.

[6]Causation was not in dispute. The question that the judge identified as arising was whether the defendant had failed to take - "reasonable care to avoid acts or omissions which [they could] reasonably foresee would be likely to injure [their] neighbour". He referred somewhat curiously in the present context to Donoghue v Stevenson

[1932] AC 562

. However elsewhere in his judgment, particularly in paragraph 37 and his references to the relevant regulations to which I will come, he showed that he had well in mind that he was dealing with a situation of employment where no problem arises regarding the existence of well recognised duties of reasonable care and safety towards the employee and the issue is, here, as to their performance or scope.

[7]In answering the question whether the present employers had discharged their duty at common law the judge cited extensively from Mr Ridd's report. He said this at paragraphs 29 to 37 in his judgment:

"29 In his report Mr Ridd considers the workload of the claimant and the weight of the stock bottles. In his ergonomic evaluation he identifies of particular importance whether the known risk factors were of sufficient magnitude and/or duration for it to be claimed that they presented a risk of injury on the balance of probability. 30 He identifies repeated activity of raising and lowering the arm as a risk factor in causing rotator cuff derangements. His conclusion is that while the activities clearly required a raised left arm to and above shoulder height, the critical rate of repetition had not been established in the literature as detrimental. 31 He then considers the number of risk factors within the same activity which need to exist before it can be said that there is a foreseeable risk of injury of the type suffered here, which is a form of upper limb disorder. These include awkward and or static postures, forceful exertion and repetitive actions. 32 It is his evidence that the posture of raising the left arm in front of the body slightly above shoulder level while outstretched and bearing a load presents an increased risk of this injury. However he did not believe that the weight of any of the stock bottles created a foreseeable risk of injury. Indeed in terms of total daily load he is quite clear that this: `would not normally be considered to present any sort of risk to the worker.' 33 As to possible work rates and the intensity of repetition, which is of course the foundation of the complaint in this case, he concludes that the highest rate is to have been in the region on 2 placements per minute into the return tray. He concludes: `The Manual Handling regulations suggest a guideline figure of 5kg for 2 handed activities ..... A one handed lift can be reasonably be suggested to be 2.5kg: if reduced by 30% (for frequencies of up to 2 a minute) - for repetition - the guideline figure would be 1.75Kg: the 600g stock bottles represent only about one third of this weight.' 34 His advice on the Manual Handling Regulations is that in his opinion the regulations were not intended to address the sort of problems which arose in this case. They were primarily aimed at reducing back injuries from handling significant loads. 35 His overall conclusion is that either one would expect to see repetitive activities in awkward postures over long periods with applications of significant force or at least one or more of these factors at an extreme level to give rise to the likelihood of foreseeable harm to a shoulder. He concludes that in this case: `It is my opinion that none of these conditions are fully met by this work activity.' 36 He adds to complete his evaluation this following comment: `It is of course always possible that a susceptible person may suffer an injury even though these parameters are not met.' 37 In my judgment that cannot help the claimant in this case. On the claim in the terms particularised I conclude that a reasonable man would not foresee that his employee would suffer physical injury to the shoulder as the likely result of a combination of the factors which have been identified as causative in this case."

The basis for paragraphs 35 and 36 in the judgment is paragraph 5.4.4 in Mr Ridd's report which reads as follows:

"Combinations - For there to be a foreseeable risk of shoulder injury one would expect to see a combination of risk factors represented in the activity (e.g. repetitive activities in awkward postures over long periods, together with the application of force). Alternatively, if only one or two of the risk factors were present, one would expect to see at least one evident at an extreme level. It is my opinion that none of these conditions are fully met by this work activity. It is of course always possible that a susceptible person may suffer an injury even though these parameters are not met."

[8]The judge - having concluded in paragraph 37 that on the claim in the terms particularised a reasonable man would not foresee that his employee would suffer physical injury to the shoulder as the likely result of the combination of factors which have been identified as causative in this case - went on in paragraph 39 to say:

"In my judgment on the basis of the claim formulated against the defendant and in the light of the evidence it appeared to me the claim must fail. A reasonable man would not have foreseen that the elements of the activity in which the claimant was engaged in this case - in lifting stock bottles from the return tray, given the frequency of the action and the weight of each bottle and the fact the level to which it was raised was only to just about shoulder height - as likely to lead to an injury of the shoulder."

[9]The judge at this point had dealt with the pleaded claims which included claims which it was sought to support by allegations of breach of the Manual Handling Operations Regulations 1992. Those Regulations provide in Article 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 ..... "

Those Regulations could have given rise to an action for breach of statutory duty and could have been of relevance in assessing whether there was any breach of common law duty of care owed by Boots as employers. The passages which I have cited show that the judge concluded there was here no breach of Article 4 (1) or of these particular Regulations and that they could not assist on the allegation of a breach of a Common Law duty of care. None of this is challenged now on this appeal by the appellant.

[10]However at paragraph 40 the judge turned to a different set of regulations. Although they are related they had not been pleaded but counsel for the claimant below had relied on them in oral submissions. Those were the Management of Health and Safety at Work Regulations 1992 to which Mr Ridd had referred in his report. These Regulations require an employer to assess all work activities to identify whether they pose a risk to the health and safety of workers. More particularly, Article 3 (1) reads:

"Every employer shall make a suitable and sufficient assessment of - (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions [and by Part II of the Fire Precautions (Workplace) Regulations 1997]."

[11]It is common ground before us, accepted by both counsel, that the relevant statutory provisions here lead one - by what was described as a paper chase - back to Article 4 (1) of the Manual Handling Operations Regulations 1992. In other words, for present purposes the purpose of the relevant assessment would be to see whether there was any step which needed to be taken under Article 4 (1) of the Manual Handling Operations Regulations to avoid the need for any employee to undertake a manual handling operation at work which would involve a risk of him being injured.

[12]Mr Ridd had said in paragraph 5.5.3 of his report:

"Assessment - It is clear that general risk assessments of the pharmacy area should have been carried out (under the requirements of the Management of Health and Safety at Work Regulations, 1992) to identify whether there were any potential risks to the health and safety of the employees. It seems to me that had these been conducted by a competent person then it is likely that, in particular, the issues of cramped workspace and poor positioning of the returns tray would have been identified as presenting an increased risk. The defendants have told me that no assessments are available for the period 1/1/93 to 1997, whether in relation to the Management Regulations or the MHO Regulations."

Those are the Manual Handling Operations Regulations to which I have referred. In his conclusions Mr Ridd said:

" • Assessments of manual handling operations (where there was a risk of injury) should have been carried out, but there are none available for the material time. • However, I am not of the opinion that the task of placing stock bottles in the returns tray should have been assessed under these Regulations, nor had it been so, that the assessment would have identified a risk of injury of the nature suffered. • The reach distance (arm's length) and the height to which the stock bottles had to be lifted (slightly above shoulder level) were greater than should have been required - a suitable and sufficient general risk assessment should have identified this as unsuitable; • The task of placing stock bottles in the tray was not sufficiently repetitive to present a foreseeable risk of injury in itself. • The weight of the stock bottles (even when full) would not, in my view, have presented a foreseeable of injury in itself. • The cramped workspace and the pressure of work were such that extra physical tension and fatigue would be created, possibly leading to increased vulnerability to injury. When combined with the individual risk factors (insufficient in themselves) there was an increased risk for some form of upper limb injury. • Had a suitable and sufficient risk assessment been conducted a number of hazards should have been identified that together present a foreseeable though not significant risk for the worker. I do not, however, believe that the particular outcome - whether in diagnosis or severity - was foreseeable."

The judge cited from these conclusions and then said at paragraph 43:

"I am quite unable to accept that this submission" - that is a submission by counsel for the appellant that Mr Ridd's report was a basis for deciding that Boots were liable for the injury suffered - "applies to these facts so as to entitle the claimant to succeed in establishing that the defendant was culpable and therefore liable on the facts of this case. I find on the evidence that until the defendant began to experience pain in his upper limb, nobody would have concluded on a detailed risk assessment of the workplace that it was likely he or any other worker would suffer the sort of shoulder complaint the defendant developed as a result of raising his left arm to and slightly above shoulder level in the circumstances of this case. The repetition rate and weights involved would not have caused any one to foresee this development."

He pointed out that the appellant had been working in the store since 1991 and there had been no previous complaint or previous case of injury of which any evidence had been adduced in the trial.

[13]It is common ground that breach of the Management of Health and Safety at Work Regulations 1992, does not give rise as such to a cause of action for breach of statutory duty. The appellant's skeleton asserts that it would amount to a breach of the common law duty of care. However on both sides' skeletons and on the oral submissions we have heard, it proved to be common ground that any breach of such regulations could be no more than evidence which might assist an argument that the employers had failed to use reasonable care to avoid the injury which resulted.

[14]The main thrust of the grounds and the appellant's skeleton is that the judge, having recited Mr Ridd's conclusions, effectively ignored them and so wrongly found that there had been no breach of the regulations.

[15]In relation to this two points immediately arise. First, I do not read the judge as finding that there was no breach of the requirement to make a general assessment. He referred at paragraph 42 to counsel's argument based on the failure to carry out such an assessment without disagreeing with the factual premise. Indeed, it would have been surprising if he had disagreed with the expert's clear view that there was a failure to carry out the assessment under the Management of Health and Safety at Work Regulations 1992. It seems to me that the judge was taking the view that any such failure was irrelevant because, in his words in paragraph 43, nobody would have concluded on a detailed risk assessment of the workplace that it was likely that the appellant or any other worker would suffer the sort of shoulder complaint the appellant actually developed as a result of lifting or raising his left arm slightly above shoulder level in the circumstances of this case after many years' work at the relevant pharmacy.

[16]Assuming there was a breach, the appellant's argument faces the problem that the Regulations and any breach only assist if and insofar as they assist to show a failure by Boots to take reasonable care to protect the claimant from or to avoid him suffering an injury of a kind which might reasonably foreseeably result from such a breach. The express purpose of the assessment required by Article 3 (1) is the identification of any measures the employer needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions, meaning, for present purposes, Article 4 (1) of the Manual Handling Operations Regulations 1992. However, as I have said, the judge found that Boots had complied with these regulations. In other words, so far as reasonably practicable, they had avoided the need for the appellant, as their employee, to undertake any manual handling operations at work which did involve a risk of his being injured.

[17]That being so, the appeal rests on the proposition that the assessments that should have been made could or should have revealed a risk which, although not calling for any action under the Manual Handling Regulations 1992, nonetheless required steps to be taken at common law if the employers were to perform their duty to take reasonable care for the health and safety of their manager. That is, it seems to me, on the facts of this case, a difficult proposition.

[18]Nonetheless counsel for the appellant, Mr Gallagher, who has presented the case as well as it could be, is able to point to a number of passages in the expert's report which, on one view, favour his client's case and are, as counsel for the respondent accepted, certainly not at all easy to reconcile with each other. In particular, the expert says at several points that a general assessment should have identified that the reach distance and height were, for example, greater than should have been required and unsuitable, and that the combination of factors present gave rise to an increased risk of some form of upper limb injury or a foreseeable though not significant risk for the worker. This echoes an earlier paragraph in Mr Ridd's report, paragraph 5.5.3.

[19]The conclusion that there was a foreseeable though not significant risk for the worker is immediately followed by the qualification that the expert did not believe that the particular outcome, whether in diagnosis or severity, was foreseeable. That takes one back to the earlier passages in paragraph 5.4.4 which I have read, and also a passage at the top of page 14 (the internal numbering in Mr Ridd's report) where he said in paragraph 6:

"However, it does not seem reasonable to me to expect an employer to have considered that there was a risk of injury from this activity."

Those last passages seem to me the passages which were picked up in the judge's own conclusions.

[20]In looking at the expert's report one must bear in mind that an expert like the present may use terminology familiar to lawyers, but not necessarily in precisely the same sense. Further, one must bear in mind that the judge was the judge of fact and degree and the exercise he was conducting was not one of trial by expert. It is rightly accepted by counsel that he was entitled to use his own experience and common sense and to consider the expert's report in conjunction with such assistance, limited though it may have been in this case, as he could obtain form hearing the only oral evidence which he had before him which came from the appellant. I mention in parenthesis, not because it is of any particular significance, that in fact it was Boots who, not long before the trial, suggested that the expert should be called to be asked oral questions. We were informed that that was in fact resisted from the appellant's side. However that is of no great significance. The fact is that the judge had to do the best he could on the material before him; he had no other choice.

[21]This court should be reluctant to interfere with the evaluation of the judge of facts on an issue such as the present, which is essentially one of judgment and degree.

[22]In my judgment the judge's conclusions can be understood on this clear basis, namely that, although an assessment would probably have turned up a situation which was less than ideal in certain respects and might be said to involve some increased elements of risk, they were not risks of such a nature that it was encumbent on any reasonably careful employer to take steps to counter them or which were likely to lead in any reasonably foreseeable way to injury of the kind suffered if they were not taken. This is consistent with the expert's conclusion that the risk was not significant and that there was no foreseeable risk of shoulder injury, even though a susceptible person might suffer such an injury when there was no such risk ordinarily. It is also consistent with the fact the appellant had worked as an employee manager for a considerable number of years with others in the pharmacy and without problem or complaint, as the judge pointed out.

[23]In all these circumstances, although the matter has been put, in my view, as well as it could have been put, I think the judge came to a result which was right and with which certainly this court cannot interfere, and this appeal fails.

LORD JUSTICE LATHAM: I agree.

Order

Appeal dismissed with the costs