Sloan v The Governors of Rastrick High School

This is an appeal against the dismissal of a claim for damages for personal injuries suffered at work. The claim was dismissed by Mrs Recorder Stocken sitting in the Bradford County Court following a three-day trial. This appeal is brought with the permission of Christopher Clarke LJ given on a renewed oral application.

The claim is based on breach of statutory duty, in respect of obligations imposed on the respondents as the appellant’s employer under the Manual Handling Operations Regulations 1992 (SI 1992/2793) (the MH Regulations). Damages in excess of £50,000 were claimed.

The appellant was employed by the respondents, the Governors of Rastrick High School in Brighouse, West Yorkshire (the school), as a learning support assistant. The school is a mainstream secondary school, with 1,400 pupils of whom about 40 had special educational needs, with 8 needing some degree of wheelchair use. The appellant had responsibility for providing support and assistance to pupils with mobility and similar physical problems. Her work including pushing students in their wheelchairs between classrooms and elsewhere in the school, and assistance with other activities requiring movement.

The appellant’s employment commenced on 1 September 2008. She attended training sessions on the first two days and spent the next three days shadowing another learning support assistant. She started working on her own on 6 September 2008. On 17 September she experienced pain in her shoulder and back after pushing one particular student (the student) in her wheelchair. She saw her GP about this on Monday 22 September and was off work for the whole of that week. She was prescribed pain relief and muscle relaxants.

The appellant returned to work on 29 September 2008 and arrangements were made so that she was not required to push wheelchairs, although she may have done so on one or two occasions. She was off work for unrelated health reasons for the period 13 to 20 October 2008. She returned to work on 21 October 2008 but gave one week’s notice on 23 October, and left the school’s employment.

The appellant’s case was that she suffered a soft tissue injury in her cervical spine and in her right, dominant, shoulder as a consequence of pushing one or more students in their wheelchairs, resulting in chronic pain in her shoulder and back which continued down to the trial.

She claimed that, in breach of duty under the MH Regulations, the school had failed (i) to avoid the need for her to undertake a manual handling operation which involved risk of injury, (ii) to make any suitable and sufficient assessment of any such manual handling operations, (iii) to take any or any appropriate steps to reduce the risk of injury arising out of such manual handling operations to the lowest level reasonably practicable.

The recorder found that the appellant had suffered a strain on 17 September 2008 (incorrectly stated in the judgment as 19 September 2008) resulting in symptoms over the following two weeks or so. Any further symptoms arose from constitutional and degenerative changes, not caused by or connected with the strain. The recorder held that the school had not been in breach of the MH Regulations in any of the respects alleged by the appellant and she accordingly dismissed the claim.

There are 18 numbered grounds of appeal, of which 16 remain live. They may be summarised as follows:

The relevant provision of the MH Regulations is regulation 4(1):

“(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, and

(iii)

take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on –

(aa) the weight of each load, and

(bb) the heaviest side of any load who centre of gravity is not positioned centrally.”

In Egan v Central Manchester NHS Trust [2008] EWCA Civ 1424, [2009] ICR 585 and Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642, [2012] ICR D 34, this Court held that the burden of proof under this regulation is on the employer to prove that it has taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable and that, if it had failed to do so, the claimant’s injury was not caused by such failure: see Ghaith at [12], [20] and [23]. At [20], Longmore LJ said:

“Here there is no doubt that the onus is firmly on the employer to show that he took all reasonable practicable steps to reduce the risk. It is a burden that is inevitably difficult to discharge. Of course it is, as Smith LJ says, open to an employee to suggest ways in which the risk could have been reduced …but there is no obligation on the employee to do so.”

In her judgment at [41], the recorder said:

“In order to succeed in her claim, the claimant must prove the following:

(a)

that the accident occurred as alleged;

(b)

that at the time of the alleged accident she was carrying out a manual handling task that carried a risk of injury;

(c)

that the defendant breached its statutory duty pursuant to reg.4 Manual Handling Regulations;

(d)

that the breach of duty caused injury and loss; and

(e)

that the injury and loss can be quantifiable in terms of its nature, extent, and duration.”

This formulation adopts and repeats the submission made by counsel for the school in her closing written submissions, but it is right to mention that counsel for the appellant in his closing submissions stated that the burden of proof lay on the school and referred to the decision of this Court in Ghaith v Indesit Co UK Ltd.

It is accepted by the school on this appeal that in sub-paragraphs (c) and (d) of [41], the recorder misdirected herself as to the burden of proof. It does not appear to me that there is any misdirection in the remaining sub-paragraphs, and I did not understand counsel for the appellant in his oral submissions to suggest otherwise.

The question therefore arises whether this misdirection undermines the recorder’s findings and conclusions. Reading the entire judgment, it is clear that the recorder made her findings and came to her conclusions on the evidence as a whole, without any reliance on the burden of proof.

The judgment contains the recorder’s assessment of the witnesses:

“43.

I deal first with credibility; the claimant gave her evidence in a convincing way. However, I found her memory to be selective and she was prone to exaggeration, as I think will become clear.

44.

The defendants were all impressive and very credible witnesses. They gave the claimant her full due, appeared to have no axe to grind against her, but obviously are still employed by the defendants.

45.

In general where there is a significant dispute I prefer the evidence of the defendants to that of the claimant.”

With that assessment in mind, the recorder made firm findings of primary fact. Her conclusions on the issues were equally firm, uninfluenced by any question of the burden of proof, but in any event it is apparent that when she came to make those findings she did in fact correctly apply the burden of proof. The misdirection does not therefore provide a ground for setting aside the order dismissing the claim.

As regards the requirement, under regulation 4(1)(a) of the MH Regulations, to avoid, so far as is reasonably practicable, the need for an employee to undertake any manual handling operations which involve a risk of injury, it was not argued on this appeal by the school that the use of non-powered wheelchairs (manual wheelchairs) involves no risk of injury. The appellant’s case is that such risk could have been avoided by the use of powered wheelchairs for all pupils and that the school failed to show that this would not be reasonably practicable. It is submitted that the recorder failed to make any clear finding on this issue and that, if she did, any finding that it was not reasonably practicable to substitute powered wheelchairs for manual wheelchairs was perverse. There was no formal assessment on this issue, let alone an assessment as to whether it would be reasonably practicable. The number of powered wheelchairs required would have been small and there was no evidence of the cost of providing such wheelchairs.

The evidence before the recorder was that students were not provided with their wheelchairs by the school, but by the NHS or privately funded by their parents. Students therefore used their own wheelchairs at school, as well as out of school. The choice of wheelchair was not a matter for the school, but was specific to each student, based on medical and therapeutic considerations in the light of the best interests of the particular student. Some students with manual wheelchairs would propel themselves while others would require to be pushed. The evidence showed that it is important to encourage independence and mobility and that to require a student who normally uses a manual wheelchair, to use a powered wheelchair at school, would be contrary to the best interests of the student.

The recorder addressed this at [63]:

“It was not possible to avoid pushing students in wheelchairs and even if they had all had powered chairs there was still a need for manual handling in carrying out toileting, feeding and other tasks. The defendants had no control over the type of wheelchair that a student used and giving every student a powered wheelchair would have militated against that student’s progression towards rehabilitation and independence.”

That is a clear finding that it was not reasonably practicable to avoid the use of manual wheelchairs and, in the light of the evidence, it cannot be said to be an unreasonable conclusion for the recorder to reach. On the contrary, it appears to be clearly correct.

The requirement under regulation 4(1)(b)(i) is for the employer to make “a suitable and sufficient assessment of all such manual handling operations to be undertaken” by employees. Regard must be had to the factors and questions specified in schedule 1 to the MH Regulations but no reference was made to any particular factors or questions on this appeal.

The procedure adopted by the school was to prepare annually a risk assessment for each student who used a wheelchair. The assessment addressed the risks both for the student and for members of staff dealing with the student. A specimen assessment was produced in evidence. It relates to one of the students with whom the appellant worked during her employment with the school. Although it is dated 5 September 2008, and therefore would not have been available on the days when the appellant received her training, there would have been the equivalent assessments available from the previous year. The evidence was that there was no material change of relevance between the two assessments.

The assessment is a detailed 11-page document. As regards the pupil’s daily functional ability, the assessment states that “she walks around school most days but if she is having a “bad day” may need to use a manual and powered wheelchair.” In a section headed “Individual/Team capabilities”, a number of capabilities are stated with, in each case, the proposed risk reduction. The proposed risk reductions include task rotation among staff within each day, moving and handling training for staff and a requirement that all staff should be fully fit to undertake their duties and should have received at least one day’s training. There is a detailed “Moving and Handling Plan” which specifies 23 separate tasks and, unless inapplicable, specifies in a separate column the “number of staff required, equipment and technique”. As regards the task “Use of manual wheelchair”, there is stated:

“One trained LSA.

[name of student] arrives at school in her manual wheelchair and only uses it around school if she is feeling tired. Appropriate methods of pushing wheelchair should be used and staff rotation to avoid pushing for long periods.”

The recorder dealt with the risk assessment in [61] of her judgment:

“I find that there was a suitable risk assessment of each child’s needs and of the task of pushing a wheelchair. The assessment of the child covered the assessment for the person handling the child with his/her particular needs and this was a very appropriate way of dealing with it.”

The appellant criticises the recorder for not stating whether the assessment was “sufficient” as well as “suitable”, being the terms of regulation 4(1)(b)(i). This criticism is nit-picking. It is perfectly clear from the judgment that the recorder considered that the risk assessment satisfied the requirements of regulation 4. The appellant led no evidence to suggest otherwise and, in the light of the contents of the risk assessment, the recorder was clearly entitled to come to her conclusion on it.

Counsel for the appellant relied on the criticism made by Robert Walker LJ in Swain v Denso Marston Ltd [2000] EWCA Civ 3021 that in that case there was “…no systematic assessment under the control of either an outside consultant or the health and safety officer (even if part of the task was delegated to a person who was an experienced employee).” The person responsible at the school for the preparation of the risk assessments for students was Lorraine Walker, who was not employed as a health and safety officer. There was no evidence as to why an independent consultant had not been engaged. This was criticised by counsel for the appellant “especially given … the complexity of the assessments as exemplified by the engineering evidence in this litigation” (to quote from counsel’s skeleton argument).

Swain v Denso Marston Ltd concerned an injury suffered by the claimant as a result of stripping down part of the conveyor system at his employer’s premises. In order to replace the bearings on the conveyor roller, the claimant had to remove various components and then the roller itself. Unexpectedly the roller was solid metal, weighing about 20 kilograms and he suffered a crush injury to his right hand when the roller was released. It was a case where there had been no relevant risk assessment, notwithstanding that the employer had a health and safety officer. The conveyor system was described as “specialised plant and machinery” and an assessment would have considered whether repairs and non-routine maintenance should be carried out by the employer’s staff or the manufacturer and would have considered the manual handling tasks involved in repairs and maintenance.

The facts of the present case are very different. Although not employed as a health and safety officer, Lorraine Walker has been trained, and is experienced, in providing risk assessments in relation to the handling and movement of students. She attended a five day training course in about 2003 which involved 4 days at a special school and 1 day’s training as a work based assessor at a hospital. She is classed as a key trainer and attends refresher courses every year. These courses qualify her to prepare relevant risk assessments, and the assessments are undertaken with the involvement of physiotherapists and occupational therapists. The assessments are approved by physiotherapists. The equipment with which this case is concerned is not specialised plant and machinery but manual wheelchairs.

The MH Regulations do not specify particular categories of person who must prepare risk assessments but, clearly, in order to comply with regulation 4 a risk assessment must be prepared by a person or persons with the necessary training and experience required for the purposes of the risk assessments in question. In my judgment, the evidence amply justifies the conclusion that Lorraine Walker was qualified to prepare the risk assessments relevant to this case. The evidence justified the recorder’s decision that the risk assessment was suitable and appropriate.

Regulation 4(1)(b)(ii) requires an employer to take appropriate steps to reduce the risk of injury to employees arising out of manual handling operations to the lowest level reasonably practicable. As the Court of Appeal held in Egan, this is a separate obligation from the requirement to prepare a suitable and sufficient risk assessment. It is the burden of proving that this requirement is satisfied which was described by Longmore LJ in Ghaith as “difficult to discharge”.

The school sought to discharge this burden by evidence of the training provided to employees, the regular rotation of staff, the short periods during which wheelchairs had to be pushed and the acceptable gradient of slopes in the school.

The evidence of training given to learning support assistants in general, and the appellant in particular, demonstrated that at the training session at the beginning of their employment, they were given specific instructions in relation to a number of procedures, including pushing manual wheelchairs. Slides were used for this purpose which were in evidence. They cover the practicalities of safe moving and handling in some detail and they include a number of slides which are specifically directed to wheelchairs. No evidence was tendered on behalf of the appellant as to what further information should have been provided in this respect and it is very difficult to imagine what further information could sensibly have been given. When all is said and done, the safe pushing of manual wheelchairs is not a difficult or complex matter. Staff rotas were in evidence, and the recorder found that the time taken to push students in wheelchairs between classes was of the order of 5 minutes, not 10 minutes as the appellant had claimed. As to the gradient of slopes, the agreed evidence of the engineering experts was that, with two exceptions, they were safe. Two slopes at the school were not or should not have been used, but the appellant’s strain injury occurred while she was pushing a wheelchair on a flat surface and did not involve either of those slopes.

Addressing the issue arising under regulation 4(1)(b)(ii), the recorder said at [62]:

“There was full and adequate training and the claimant was aware of the designated areas. The staff were regularly rotated to share the tasks. Once the claimant’s shoulder problem became known, suitable steps were taken to prevent the risk. Any manual handling that the claimant did thereafter was avoidable and done at her own volition.”

This paragraph, read in the context of the judgment, is, contrary to the appellant’s submission, a clear finding that the school had established that it had taken steps to reduce the risk of injury to the appellant to the lowest level reasonably practicable.

The appellant led no expert evidence to the effect that the training provided to her and the other steps taken by the school to reduce any risk of injury were insufficient to reduce that risk to the lowest level reasonably practicable. There was of course no obligation on the appellant to do so but it means that the large number of criticisms made by counsel for the appellant in his skeleton argument in support of the appeal are no more than comment, although of course that would not prevent them from being well-founded.

In challenging the recorder’s conclusion, counsel for the appellant relied on the same large number of points on which he relied before the recorder:

In my judgment, the evidence before the court fully justified the recorder’s conclusion that the school had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable and the criticisms referred to above, together with other minor criticisms, do not undermine her conclusion.

Regulation 4(1)(b)(iii) requires an employer to take appropriate steps to provide its employees who undertake manual handling operations with general indications and, where it is reasonably practicable, precise information on the weight of each load and the heaviest side of any load whose centre of gravity is not positioned centrally.

When asked how this requirement should have been satisfied in the present case, counsel for the appellant suggested that the combined weight of each student with his/her wheelchair should have been ascertained and provided to the learning support assistants. No suggestion was made as to how the provision of this information would have assisted the appellant in the performance of her duties. In any event, this is not a case of moving or lifting loads where the weight would not be readily apparent, such as loads in boxes or packaging. The appellant accepted in evidence that she was able to make a visual assessment of each student. In relation to the strain injury suffered by the appellant, the combined weight of the student and her wheelchair was no more than about 57 kilograms. The appellant herself described the student in her evidence as “a tiny little thing”.

It is the case that the recorder did not specifically refer to this issue, but the steps suggested by the appellant were neither necessary nor appropriate and, in any event, the failure to provide the weight was in no way causative of the strain injury suffered by the appellant.

Three grounds of appeal relate to the layout of the school and the expert engineering evidence. The recorder is said to have erred by failing to take into consideration material evidence concerning the inadequacy of the layout of the school premises at the time of the appellant’s employment and by wrongly finding that the engineers agreed that the school layout complied with relevant guidelines. It is also said that the recorder erred in finding at [57] that, on the basis of the expert engineering evidence, it was very unlikely “that what the claimant was asked to do as part of her job caused a significant injury.”

These issues might have been more significant if the recorder had accepted the appellant’s case that her strain injury was the cumulative result of her work from 8 September 2008 until the incident on 17 September 2008. However, the recorder clearly rejected that case at [56] to which I have already referred. At [49] the recorder found that the appellant “did suffer an injury on the 19^th September and any aches and pains before were slight and attributable to daily life” and at [59] she said that “the one incident of pushing [the student] on 19 September probably did cause an injury or exacerbate an existing injury.” The reference to an existing injury is to previous back problems which, the recorder found, had not been disclosed by the appellant to the school. The injury at the school was caused by pushing the student along a flat surface. The evidence as to the layout of the school and gradients given by the engineers was not therefore in point. The recorder was right to regard this evidence as not relevant.

The appellant submits that the recorder erred by preferring the evidence of the school’s medical expert witness to that of her own.

Because of the commitments of the school’s expert, the expert medical evidence was taken at the start of the trial. This was not a course to which the appellant objected but her counsel submits that it had the undesirable effect of isolating the medical evidence from the remainder of the evidence, in particular the evidence concerning the alleged breaches of statutory duty by the school. It is submitted that the conclusion of the school’s expert that her symptoms and the incident were “just coincidence” was manifestly and statistically implausible, especially given that she had never previously complained of shoulder pain and her previous employment record had not involved comparable manual work. The appellant challenges his evidence that it was not credible that the sort of work undertaken by the appellant could leave her with anything more than a strain from which she would recover after a week, given that he was not fully aware of the precise nature of the manual handling operations involved, in particular the weights of the wheelchairs and their occupants and the steepness of the gradients, as well as the frequency of the operations and the evenness or otherwise of the ground on which they were being carried out. It is said that his conclusion was based solely on the perceived similarity between the appellant’s work as a learning support assistant and the work of hospital porters.

In my judgment, these criticisms of the evidence of the school’s medical expert are unfounded. He provided a full written report which concluded with a two-page statement of his opinion, diagnosis and prognosis. This focuses on the symptoms described by the appellant and the symptoms recorded by her GP and is not based on a comparison of her work with that of a hospital porter.

This was not in any event a case which depended entirely on expert evidence. As earlier noted, the appellant attended her GP on 22 September 2008, complaining of an injury to her neck and right shoulder, but not mentioning any injury to her back. She regularly attended her GP, making a further 25 visits to her GP surgery in the period after 22 September 2008 until 27 June 2011. She made no further reference to the accident at the school and the first reference in her GP records to any back pain was not until 16 February 2010 and this, she said, was referable to pain that she had felt when getting out of bed the preceding weekend.

As regards the expert evidence called by the appellant, he was unable to give any prognosis or diagnosis in the absence of an MRI scan or recommended pain management programme. The recorder found that the appellant had given “an exaggerated account” to her medical expert.

The recorder was fully justified by the evidence in her findings of the nature and extent of the injury suffered by the appellant, and it is at the very least questionable whether she could properly have found that any more extensive injuries or symptoms were suffered.

Finally, and irrespective of the result, the appellant challenges the order for costs made by the recorder. The recorder heard submissions on costs at a further hearing on 30 July 2013 and ordered the appellant to pay the school’s costs. On this appeal, the appellant repeats the submission made to the recorder, that because of the late production by the school of the risk assessment, the appellant should pay the school’s costs only in respect of the period after its production. Disclosure of documents had been given in July 2012 but the risk assessment was not disclosed until May 2013 when witness statements were served. This was undoubtedly very late and it could be a relevant factor in the exercise of the court’s discretion as to costs.

In dealing with this submission, the recorder said:

“The claimant might have at that stage decided to withdraw her claim subject to costs and she might equally have made an offer of settlement, so none of those things happened. In any event, had it been disclosed earlier, it seems to me highly dubious that would have made any difference to the claimant’s attitude towards her claim. We are told today by the claimant’s counsel that it may or may not have made a difference and therefore it seems hard to see really what prejudice there would have been in any event, or prejudice there was, to the claimant in the late disclosure of it.”

The appellant cannot complain that the recorder failed to take account of relevant matters and she does not dispute the recorder’s assessment contained in the passage cited above. The challenge to the order for costs can therefore only be put on the basis that the only reasonable order would have been, in effect, to impose a penalty on the school for its late disclosure of the risk assessment. While of course the court can make orders for costs in order to mark its displeasure of particular aspects of the conduct of a case by a party, this is certainly not a case in which it can be said that the only reasonable response to the late disclosure of the assessment report is to deprive the school of its costs prior to that time, notwithstanding that it probably had no effect on the claimant’s determination to pursue her claim. This challenge to the order for costs must therefore fail.

So must the challenge to a specific item in the costs incurred by the school, namely the costs incurred in copying medical reports on the first day of the trial which had to be undertaken at court and for which a sum of £320 was charged. It is said for the appellant that the index of the proposed bundle of documents for the trial had been sent to the school’s solicitors. It did not contain the medical records and the school’s solicitors did not raise a point on this until the first day of the trial. The fault, however, seems to me to lie with the appellant’s solicitors. I fail to see how they could have concluded that a claim for personal injuries could be tried without the relevant medical records being before the court. The challenge to this small aspect of the order for costs therefore also fails.

For the reasons given in this judgment, I do not consider that any of the grounds of appeal, on analysis, has substance and I would therefore dismiss this appeal.

I agree.

I also agree.