Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust [2008] EWCA Civ 1424

[2008] EWCA Civ 1424

Case No B3/2008/1273

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SALFORD COUNTY COURT

HH Judge Tetlow

6SF04367

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/12/2008

Before

LORD JUSTICE SEDLEY

LORD JUSTICE KEENE

LADY JUSTICE SMITH

Between

Donna EganAppellant

Central Manchester and Manchester Children's University Hospitals NHS TrustRespondent

(Transcript of the Handed Down Judgment of

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Mr Martin Littler (instructed by Donns LLP) for Appellant

Mr James McKeon (instructed by Weightmans LLP) for Respondent

Hearing Hearing date : 5 December 2008

Judgment

Lady Justice Smith:

[1]This is an appeal from the order of HH Judge Tetlow made in the Manchester County Court on 18 April 2008. The judge dismissed the appellant’s claim for damages for personal injury. Permission to appeal has been granted by Rix LJ.

The claim

[2]The appellant is a nurse working in the High Dependency Unit of the Manchester Royal Infirmary. From time to time, she had to bathe a disabled patient and use a mobile hoist to transport the patient to and into the bath. On 17 June 2003, the appellant decided to bathe a female patient. She fetched a mechanical hoist, transferred the patient into it and wheeled the hoist to the bathroom and to the end of the bath. The bath stood on plinths about 5 inches high and the appellant had to manoeuvre the forks of the hoist under the bath avoiding contact with the plinth which was set back about 17 inches from the end of the bath. The photographs show that, from a standing position, the plinth was not visible. As the appellant pushed the hoist forward, the hoist suddenly stopped. The appellant suffered a jerking injury to her back for which she claimed damages.

[3]In the action, commenced in May 2006, the appellant alleged that her employers were liable for this injury. In the amended particulars of claim, she alleged that the reason why the hoist had stopped suddenly was because the castored wheels of the hoist had locked or jammed. She alleged that this jamming was due to a defect in the hoist and that the employers were in breach of the Provision and Use of Work Equipment Regulations 1998. The appellant also alleged that the employers were in breach of their duties under the Manual Handling Operation Regulations 1992.

[4]The defence denied liability and alleged contributory negligence from which it was apparent that the employers were suggesting that the hoist might have stopped suddenly because the appellant had steered it so that one of the forks collided with the plinth, instead of passing to the side of it. In her reply, the appellant did not mention the Manual Handling Operation Regulations.

[5]Mr R.G. Hanson, the jointly instructed expert engineer whose report was put in evidence, said that, on inspection, he found no evidence of any defect in the wheels which could have caused the hoist to stop suddenly. The judge held that there was no defect. Also, from the position in which the appellant had said that the hoist had stuck, the judge inferred that it was likely that the accident had happened because one of the forks had snagged against the plinth. There is no appeal against that finding. Because of that finding, the appellant relied on the Manual Handling Operation Regulations. The judge held that they applied to the task the appellant was undertaking.

[6]So far as relevant for present purposes, Regulation 4(1) provides:

“Each employer shall (a) ….. (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, ….” (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, ….”

[7]It was common ground that no risk assessment had been carried out and the judge accepted that that amounted to a breach of the regulations. But, he said, the question was whether that breach was causative. Of course, a failure to conduct a risk assessment never can be directly causative. But the judge approached the question of causation by reference to various suggestions which Mr Martin Littler, counsel for the claimant, had advanced in closing submissions. These were that:(a) A warning could have been placed in the bathroom to highlight the fact that the plinth existed.

(b) Markings on the floor would have designated precisely how the hoist legs could be guided around the plinth.

(d) The bath structure could have been modified.

(e) The bath could have incorporated a fixed system for lowering the patient into the bath, a system which has now been implemented.

[8]The judge then observed that it was unfortunate that Mr Hanson had not been asked what a risk assessment would have revealed about the risk of a collision with the plinth. Then he said:

“’Further, the particulars of breach of the Manual Handling Regulations under paragraph 6 of the particulars of claim do not raise the point expressly. Mr Hanson does not say that something alternative to a mechanical hoist should be been used’. That disposes of paragraph (e) of Mr Littler’s suggestions. Paragraph (d) of his suggestions lacks particularity.”

[9]The judge then considered Mr Littler’s suggestions (b) and (c). He noted first that Mr Hanson had said that he could not reasonably criticise the use of the hoist over the bath as the construction and clearance did not give rise to any undue risk. Mr Hanson had also said that it was obvious if the hoist was misaligned and by the operator simply looking forwards and arranging the hoist legs equally beneath the bath sides, the hoist could fully advance without snagging. The judge considered that, if the operator knew that there was a plinth, she would know that she needed to take care to position the hoist centrally and in line with the bath. There was no evidence of previous accidents. That seemed to dispose of suggestions (b) and (c).

[10]As to suggestion (a), the judge considered that a warning to the claimant would have been otiose because she knew the plinth was there. He said that it was debatable whether a risk assessment would have said anything about the risk of collision with the plinth, save to warn that there was a plinth there and it was necessary to take care to align the hoist centrally. The claimant knew all that and had managed to use that hoist and others on occasions in the past without mishap. He concluded that the failure to conduct a risk assessment had not been causative of the accident. That disposed of the claim.

The appeal - submissions

[11]In this appeal, Mr Littler complained that the judge had completely forgotten about Regulation 4(1)(b)(ii), which required the employer to take all appropriate steps to reduce the risk of any injury arising from the handling operation to the lowest level that was reasonably practicable. This, he submitted, imposed on the employer a separate obligation independent of the duty to carry out a risk assessment. The evidence of Mr Kenneth Wood, the respondent’s health and safety adviser had been that there was a risk of injury arising from this operation in that there was a risk that the operator might push the hoist into collision with the plinth. It was common ground that the forks of the hoist were about 24 inches apart and the plinth was about 20 inches wide. Thus it was entirely possible for the operator to steer the hoist under the bath without colliding with the plinth but, Mr Littler submitted, considerable care was needed and the risk of collision was clear.

[12]Mr Littler also submitted that, once it was established that there was some risk of injury, the onus was on the respondent to plead and prove that it had taken all appropriate steps to reduce that risk to the lowest level that was reasonably practicable. He drew our attention to the way in which the respondent had pleaded its defence on this issue. It had pleaded that the risk was such that it had taken all the appropriate steps to reduce the risk of injury to the lowest level that was reasonably practicable. The claimant was fully trained in manual handling, risk assessment and was provided with suitable equipment kept in good order.

[13]Those contentions, submitted Mr Littler, failed to take account of the risk of operator error which had been recognised by Mr Wood. That risk existed even though the operator was well trained and knew all there was to know. Experience shows that, even when well trained, people can make mistakes due to inadvertence or because they are in a hurry or are distracted or simply because they are not concentrating as they should. That was why some further steps should have been taken. In particular, his suggestions (b) and (c) would have reduced the risk of injury. These suggestions were cheap and easy to put into effect and would assist the nurse who was pushing the hoist to align it so that the forks would not snag against the plinth. The hoist operator would not be able to see the plinth because its leading edge was some 17 inches back from the end of the bath and the bath was only raised about 5 inches from the floor. Thus, the operator would have been helped either by the plinth being positioned close to the end of the bath so that it could be seen or by markings on the floor which would tell the operator where she should position the hoist before pushing it forward.

[14]Mr Littler submitted further that his suggestion (e) – the provision of a dedicated hoist – was also reasonably practicable. The respondent had installed such a hoist at some time since the accident.

[15]It was suggested to Mr Littler that, although the judge had not expressly dealt with regulation 4(1)(b)(ii), he had in fact dealt with all the issues which could have arisen under that Regulation. Mr Littler submitted that, if that were so, the judge had been wrong in his rejection of the various suggestions that he had advanced. In particular, the judge had been wrong to reject his suggestions (b) and (c).

[16]Mr James McKeon for the respondent submitted that, although the judge had not mentioned regulation 4(1)(b)(ii), he had implicitly dealt with all the issues which could have arisen under it. The judge was entitled to rely on the evidence of Mr Hanson, who was of the view that the positioning of the hoist did not give rise to any ‘undue risk’. As to that, Mr Littler pointed out that Mr Hanson had not dealt specifically with the Manual Handling regulations. He had not therefore had regulation 4 in mind; he had been concerned mainly with whether the wheels had jammed. That was not a criticism of him; the appellant’s case had been that there was something wrong with the wheels and not with whether the method of moving the patient carried a risk which should have been reduced.

[17]Mr McKeon also submitted that the decision to install a new hoist dedicated to this particular bath had not been taken on account of this accident. That decision was part of a programme of modernisation of the whole hospital. The change had been made some time after the accident and was unrelated to its occurrence.

[18]As to Mr Littler’s suggestions (b) and (c), Mr McKeon submitted that the judge had been right to reject them. The risk of injury was very small and if the operator exercised proper care, she and the patient would be quite safe. Mr Hanson had found it easy to align the hoist so that the forks did not snag against the plinth. The appellant was an experienced nurse and had been well trained, as she herself accepted. There were no steps that it was ‘appropriate’ for the respondent to take, pursuant to Regulation 4(1)(b)(ii).

[19]Both counsel agreed that, if we were to conclude that there had been a breach of Regulation 4(1)(b)(ii), it would be necessary for us to consider whether the appellant had contributed to the injury by her own negligence. Both counsel invited us to take that decision ourselves, rather than to remit it to the judge.

Discussion and conclusions

[20]It is clear from the judgment that the judge did not give separate consideration to Regulation 4(1)(b)(ii). In my view, he should have done because the requirements of that regulation are separate from and additional to the requirement to carry out a risk assessment. Of course, the two are related, in that, a risk assessment will show the employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable. Also, if an employer has carried out a careful and thorough risk assessment and has taken all the steps which appeared from that assessment to be appropriate to reduce the risks involved to the lowest level reasonably practicable, the employer would be in a strong position to defend itself under Regulation 4(1)(b)(ii).

[21]However, where, as here, no risk assessment has been carried out, the judge ought to focus on the regulation which imposes a duty to take positive action to reduce risk, regulation 4(1)(b)(ii). The judge would approach that regulation on the basis that, once it has been shown that the manual handling operation carries some risk of injury, the burden of proof is on the employer to plead and prove that it has taken appropriate steps to reduce that risk to the lowest level reasonably practicable.

[22]Accordingly, in my view, it was not sufficient merely for the judge to examine whether a risk assessment would have made any difference. Having said that, the questions Judge Tetlow asked himself did more or less cover the same ground as would have been covered by a separate consideration of Regulation 4(1)(b)(ii). It is true that the judge did not refer to the burden of proof and it appears to me, from his reference to the lack of particularity in the appellant’s pleading, that the judge may have, in his own mind, have placed the burden on the appellant. If he did, that would have been wrong. I accept of course, that, in practice, if a claimant wants to allege that there were steps which could and should have been taken and the employer says there were none, there will be an evidential burden on the claimant to advance those suggestions, even though the legal burden will remain on the employer. So, although it was not in my view correct, the judge’s approach was capable of leading him to the right conclusion. The question is whether or not his assessment of the various suggestions was right, bearing in mind that the appellant had established that the operation in question carried a risk of injury and it was therefore for the respondent to show that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable.

[23]For my part, I would accept Mr McKeon’s submission that there was no duty on the respondent to provide a hoist dedicated to this particular bath. That that was done, some time later, as part of a modernisation programme, does not mean that the failure to do so before this accident was a breach of duty. There was nothing inherently wrong with the manual hoist; it could be used safely and, with some small alterations to which I will come, the risk to the nurse (or indeed the patient) would be very small.

[24]Mr Littler’s suggestions (b) and (c), which were designed to help the operator to guide the forks of the hoist under the bath without snagging on the plinth, are less easily dismissed. If the supporting plinth were visible, the operator would find it easier to guide the hoist; the element of guesswork would be reduced. It would cost a minimal amount to move one of the existing plinths close to the end of the bath so that it could be seen by the operator when she looked down. Even if it were not thought satisfactory to move one of the existing plinths close to end of the bath and it was thought necessary to have three plinths rather than two so that the bath would be properly supported, the cost of an additional plinth would not, I think, be significant. Certainly, the respondent has not shown that that suggestion or solution would not have been reasonably practicable. Such a change would have significantly reduced the risk of injury by collision.

[25]Similarly, the placing of markings on the floor, whether by paint or by sticking something to the floor, would have enabled the operator to align the hoist so that it could be pushed safely under the bath. Again, it seems to me that the cost would be modest and, in any event, the respondent has not shown that that solution was not reasonably practicable.

[26]In my judgment, either of those solutions was reasonably practicable. Either of them would have been of real assistance to the operator. I do not say that they would have guaranteed that there was no risk at all but they would have reduced the risk of injury by collision to a significant degree. Were such steps appropriate? It is not entirely clear to me what the word ‘appropriate’ adds to the regulation. Once a risk of injury has been identified and a suggestion has been advanced which would reduce the risk and is reasonably practicable, it is difficult to see how it could be argued that the step was not ‘appropriate’. In any event, in the circumstances of this case, where either suggestion (b) or (c) would have reduced the risk and were reasonably practicable, I do not think it could be said that they were not appropriate steps.

[27]Accordingly, I would hold that the respondent employer was in breach of its duty under Regulation 4(1)(b)(ii). In my judgment, if either of the suggested steps had been taken, it is likely that the accident would have been avoided. I would therefore hold the respondent primarily liable for the injury.

[28]That leaves the question of contributory negligence. Counsel have agreed that we should decide the issue but have not made detailed submissions as to how responsibility should be apportioned.

[29]The appellant was an experienced and highly trained nurse. She knew that the hoist had to be steered carefully so that the forks went either side of the plinth. She did not claim that she was in a hurry or distracted. Indeed, she was convinced that she had not made any error but the judge’s finding of fact shows that she must have done. To make such an error, she must have been either inadvertent or careless. Given the circumstances, I do not think that her actions could be described as ‘mere inadvertence’. I think that she was to some degree careless. She did not look sufficiently carefully exactly where the forks were going under the bath. In my view, she must take a significant share of responsibility for her injury.

[30]On the other hand, the respondent failed to take a step which would, in my view, have significantly reduced the risk of the very error which the appellant made. I accept that the duty imposed by regulation 4(1)(b)(ii) is much higher than the duty at common law. Nonetheless, Parliament has enacted these regulations, in compliance with the Manual Handling Directive (90/269/EEC) and the respondent should have complied with them. If it had, the accident would probably have been avoided.

[31]The fault of each party has ‘caused’ the injury in that, if either had taken proper care, the accident would probably have been avoided. I find myself unable to distinguish between the two parties when considering blameworthiness; it seems to me that neither side could or should be heavily criticised. Accordingly, I find myself driven to conclude that they should share responsibility equally. I would hold the respondent liable to the appellant in 50% of the damages.

[32]In the absence of agreement as to quantum, I would remit this matter to the Manchester County Court for the assessment of damages. Finally, I would like to express my gratitude to both counsel for their succinct and cogent submissions. Lord Justice Keene : I agree Lord Justice Sedley: I also agree

Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust [2008] EWCA Civ 1424

The claim

The appeal - submissions

Discussion and conclusions

Cited in 3 later judgments