West Sussex County Council v Fuller

In 2008 the Claimant/Respondent Kim Fuller, then Brown, was employed part-time by the Defendant/Appellant West Sussex County Council as an administrative assistant. She was then forty years old and in good health. Her main job was that of receptionist at the Defendant’s Haywards Heath Premises at which the local office of its Social Services Department is located.

Until October 2008 one of the Claimant’s tasks was to sort incoming mail and to place it into various pigeon holes for collection by those who worked in the ten or so sections of the Department found within the building. It seems that for whatever reason that system did not work efficiently. On 9 October 2008 the Claimant was asked thenceforth to deliver the post to the various areas of the building. She received an email from the office resource manager in the following terms:-

On 12 December 2008 whilst engaged in her relatively new task of delivering post within the building, the Claimant had the misfortune to fall forward on a staircase. She put out her right hand to break her fall and was unlucky enough to injure her wrist. Although she was able to continue at work that day it transpired that she had sprained a ligament.

The Claimant brought proceedings against her employers. She said that at the time she was carrying a large amount of post of both considerable bulk and thus awkwardness and of considerable weight – she estimated about 7 kilograms. She said that this meant that she had to use both hands in order to carry the post so that she could not use either of the handrails, of which there was one on each side of the staircase. She alleged that the bulk of the pile of post she was carrying, including parcels, meant that she could not see where she was walking. She said that, as she was going up the stairs, one foot did not lift off as she was anticipating because of the presence of a sticky patch, most likely to be a piece of chewing gum. Her momentum in going up the stairs carried her forward and she fell forward, was unable to grab a handrail because of the bulk of the post she was carrying, had to put out her right hand to break her fall, and was in consequence injured.

It was agreed that if the claim succeeded the Claimant would be entitled to an award of damages of £6,000. Liability was however denied. The matter came for trial before His Honour Judge Coltart in the Lewes County Court. It is apparent that the Claimant had various grievances concerning the manner in which she alleged that she had been treated by her employers.

The judge heard evidence from the Claimant and from several witnesses who had been in the building that day, including a Mrs Toussaint who, whilst she did not actually see the fall, was very quickly on the scene after the Claimant had got back to her feet.

The judge did not accept the Claimant’s account of the accident. Not to put too fine a point on it, he found her account dishonest. The judge found that she was not carrying a large amount of post. She was carrying no large items. There was no mail or post spread about on the staircase as a result of her fall. There was only, if anything, something in one of her hands so that she had had at least one hand free. The judge found that there was no hazard in the form of a sticky patch that caused or contributed to the fall. The judge found that she had simply misjudged her footing, as she had explained at the time to one of her colleagues. This can of course happen to any of us. If an accident of this sort has to be analysed in terms of fault, as for the purposes of attributing liability normally it does, it was entirely the Claimant’s fault, as the judge expressly found.

One might have thought that that was the end of the matter. The judge thought that it should have been, but he was nonetheless persuaded, evidently against his better judgment, that the law compelled him to find for the Claimant, and furthermore that he was “prohibited” from making any finding of contributory negligence. This was, he was reluctantly persuaded, a result of the circumstance that the defendant local authority was in breach of its statutory obligation to make a risk assessment of the task to be carried out by the Claimant in distributing post around the building, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The judge’s instinctive reaction was that the argument presented to him, which he was invited to accept, was “health and safety gone mad”. He was however persuaded that he had no option but to accede to it. It is a measure of his lack of enthusiasm for this outcome that having pronounced it he immediately asked Counsel for the Defendant if he wanted permission to appeal, and granted it without waiting to hear whether that course was opposed. Hence this appeal.

It is common ground that the Defendant owed to the Claimant the duties set out in Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 4 of the Manual Handling Operations Regulations 1992. They provide, so far as relevant:-

Every employer shall make a suitable and sufficient assessment of--

the risks to the health and safety of his employees to which they are exposed whilst they are at work; …

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

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--

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,

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

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--

No risk assessment was produced by the Defendant, nor did it attempt to show that it had taken appropriate steps to reduce to the lowest level reasonably practicable the risk of injury to the Claimant arising out of her distribution of the post within the building. No instructions over and above the email set out at paragraph 3 above were given to the Claimant in relation to how she should carry out that task. It was Mr Pennock’s submission, both before the Judge and before us, that whilst in order to found liability pursuant to a breach of Regulation 3 of the 1999 Regulations a Claimant must prove that the breach was causative of his injury, under Regulation 4 of the 1992 Regulations there is no such requirement. I did not find Mr Pennock’s submissions entirely consistent or easy to follow, but I think that his submission was that it was for the Defendant to prove that its breach of Regulation 4 did not cause the accident, and that the only way that that could be done was by showing that it had taken appropriate steps to reduce to the lowest level practicable the risk of injury to the Claimant arising out of this post distribution operation.

It was put to Mr Pennock by the Court in the course of argument that surely the defendant in such circumstances can point to the fact that the cause of the accident had nothing to do with the risks generated by the operation in question, as here, where the Claimant had simply had the misfortune to misjudge her footing, as anyone can do when ascending a staircase. Mr Pennock contended that the judge had made a finding that precluded that approach. He relied on what the judge said at paragraph 18 of his judgment:-

I do not consider that this passage in the judge’s judgment is of any assistance to Mr Pennock. As is obvious, the only way in which all risk of the Claimant misjudging her footing on the steps could have been removed is by preventing her from using the staircase. Mr Pennock did not shrink from suggesting that that may indeed be what was required of the Defendant, in the sense that he submitted that the outcome of a risk assessment might have been that the employees in the various departments should be required to collect their post, as hitherto they had done. That of course begs the question whether they in turn should have been permitted to carry post up the stairs. The unreality of Mr Pennock’s submissions was perhaps highlighted by his acceptance that on his approach the Defendant would have been liable if the Claimant had been unfortunate enough to suffer a heart attack whilst carrying an item or items of post up the staircase.

The fallacy in this argument lies of course in the circumstance that liability for breach of neither Regulation 3 nor Regulation 4 can be established without proof of a causal link between the breach and the injury suffered. The legal burden of proving that causal link rests on the Claimant. He or she who asserts must prove. In many typical workplace situations however, a failure by the employer to assess the risks of injury involved in a manual handling operation, and to take appropriate steps to reduce the risk of injury to the lowest level practicable, will effectively cast on to the employer the evidential burden of showing that his failure in that regard was not at least a cause of the accident. That is because in a typical workplace accident there is an obvious connection between the injury and the particular risks associated with the activity being undertaken. Particularly is this so in the case of a manual handling operation. However that is not so where the cause of the accident is manifestly unconnected with the risks generated by the operation in question, as here, where the Claimant simply misjudged her footing going up the stairs, in circumstances in which she was in no way disadvantaged in her ascent of the stairs by the circumstance that she was carrying one or two light and non-bulky items of post. Had she, as she asserted, been carrying, and required to carry, such a volume of bulky material that she could not see where she was putting her feet, and could not retain one hand free to use or grab a handrail, the outcome might have been different. Then there would have been an obvious point to be made that her missing her footing could plausibly be attributed to the circumstance that she was at the time, as she had been required to do, carrying out an operation which brought with it some risk additional to that which always attends simple ascent of a staircase. In other words, she could plausibly have made out a prima facie case on causation. In such circumstances there might be some force in Mr Pennock’s submission that the provision of a postbag, which she could have put around her neck, might properly have been identified by a risk assessment as an appropriate step to reduce the risk of injury to the lowest level reasonably practicable. The Defendant might then have been unable to discharge the evidential burden of showing that, had a postbag been provided, the injury would still have occurred. But on the facts found by the judge the circumstance that the Claimant misjudged her footing had no connection whatever with the risks inherent in carrying post. She simply succumbed to the ordinary risk inherent in climbing a staircase. Given the small amount of post she was carrying, and its non-bulky nature, the Claimant was no more disadvantaged than any other employee in ascending the staircase during the working day, for example in order to attend a meeting on an upper floor, or simply to visit the lavatory. There was thus no causal connection between the risks inherent in carrying an awkward or heavy pile of post and the circumstance that the Claimant misjudged her footing, and thus no need for the Defendant to demonstrate that notwithstanding its breach of duty, if such there was, the accident would be likely to have occurred even had it taken appropriate steps to reduce to the lowest level reasonably practicable the risks associated with the post carrying operation. That is simply another way of saying that, properly analysed, what happened to the Claimant had nothing to do with the fact that, at the time she had the accident, she happened to be carrying post.

Mr O’Donnell submitted that there had in fact been no obligation on the Defendant to carry out a risk assessment in respect of the routine task of carrying post around an office building, even if it on occasion involved carrying bulky files of the sort generated by a Social Services Department. He pointed to the email set out at paragraph 3 above as sufficient indication that the Claimant was expected to seek assistance if the volume or weight of material involved prolonged absence from the reception area. We do not need to decide this point. I am prepared to assume that the task did generate in the Defendant an obligation to carry out an assessment under Regulation 4(1)(b)(i) and to take appropriate steps as required under Regulation 4(1)(b)(ii). Since this was arguably a manual handling operation, Regulation 3 of the 1999 Regulations adds nothing and need not be further considered.

Unsurprisingly the proper approach to Regulation 4(1)(b)(i) and (ii) is not virgin territory. O’Neill v DSG Retail Limited[2002] EWCA Civ 1139, a decision of the Court of Appeal, emphasises the need to find a causal link between breach and damage. That was a case where the employer had failed properly to train a warehouse manager whose work included stacking and moving electrical goods. In particular, he had not been shown a video designed to train people out of the instinct to twist when carrying a load. Whilst carrying a microwave oven, the claimant responded to a call by a work colleague and turned, twisting his body without moving his feet. He suffered injury to two discs in his lumbar spine and subsequently issued proceedings against the defendant alleging negligence and breach of the 1992 Regulations. The claimant contended that the defendant had been in breach of Regulation 4(1)(b)(ii) in that he had received no manual handling training. The judge found that the claimant had had knowledge of the risks and dangers involved in lifting, and had taken those on board, and that the precise circumstances in which the accident had happened were wholly unforeseeable. The judge concluded that the wholly unexpected instinctive reaction of the claimant had caused the accident, and not the lack of training or breach of any regulation. The Court of Appeal allowed the claimant’s appeal against the dismissal of his claim. Nelson J said this:-

To similar effect is the decision of the Inner House of the Court of Session in Davidson v Lothian and Borders Fire Board[2003] SLT 939, which emphasises that Regulation 4 of the 1992 Regulations is engaged where an event occurs which falls within the ambit of a risk of injury to which a particular manual handling operation gives rise. Lord Macfadyen recorded at paragraph 22 the common ground on the appeal that the pursuer (claimant) had to establish four factors in order to make out a prima facie case of breach of duty under Regulation 4:-

Two relatively recent decisions of the Court of Appeal are said by Mr Pennock to support his approach. The first is Egan v Central Manchester & Manchester Children’s University Hospitals NHS Trust [2008] EWCA Civ 1424. A nurse was required as part of her duties to use a mobile hoist to transport a disabled patient to a bath, and to use the hoist to manoeuvre the patient into the bath. The bath stood on a plinth set back from the back of the bath which was not visible from a standing position alongside the bath. As the nurse manoeuvred the wheeled forks of the hoist under the bath they made contact with the plinth, the hoist suddenly stopped and the nurse suffered a jerking injury to her back for which she claimed damages. It was common ground that no risk assessment had been carried out and that that was a breach of the 1992 Regulation. It was suggested that the employer might have put markings on the floor designating precisely how the hoist legs could be guided around the plinth, which was called suggestion (b), or that the plinth itself could have been brought forward to the front of the bath and clearly marked, suggestion (c). In allowing the claimant’s appeal against the dismissal of her claim, Smith LJ said:-

It is important to note that paragraphs 20-26 of Smith LJ’s judgment are concerned with the question whether a breach of duty has been established. Paragraph 20 makes the point that an employer who has carried out a careful and thorough risk assessment is in a better position to show that he has taken such steps as are appropriate to reduce the risk of injury to the lowest level reasonably practicable than is one who has carried out no such assessment. At paragraph 27 Smith LJ turns to causation. She concludes that had either of the suggested steps (b) or (c) been taken, both of which were reasonably practicable, and would have reduced the risk, and were thus appropriate steps to be taken by the employer, it is likely that the accident would have been avoided. That is another way of saying that the failure to take those steps was a cause of the accident.

This decision was applied in Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642. Mr Ghaith was a Field Service Engineer employed by Indesit, suppliers of white goods such as washing machines, refrigerators and dishwashers. He was employed to visit homes to repair and maintain white goods previously sold to customers, and for that purpose he was provided with a van full of machine parts. Once a year Indesit arranged a stock-taking of the equipment in his van. One such stock-take occurred on 2 March 2007. Mr Ghaith and his supervisor, Mr Leversedge, did it together. The method used was that everything was taken out of the van, scanned, and then noted on to a computer record kept by Mr Leversedge on his handheld computer. Large items, such as washing machine drums, had to be lifted out and placed on the ground or on a trolley for examination; smaller items were lifted out and put in what was called a “tote box” and then placed on to a trolley. The majority, 70%, of the lifting and moving, was done by Mr Ghaith. In the course of this operation, which took most of the day from 09.30 to 4.00 or 4.30, with four short breaks, Mr Ghaith sustained a back injury when lifting. The judge rejected his claim against Indesit for breach of statutory duty in these terms:-

Longmore LJ, with the concurrence of the other members of the court, disagreed with the Judge’s assessment. He concluded:-

Longmore LJ then went on to consider whether, notwithstanding the lack of a proper risk assessment, Indesit could discharge the difficult burden of showing that it had taken all reasonable precautions to reduce the risk. He concluded that it could not. He then went on:-

It may be that this passage has been misunderstood. It is not perhaps the easiest passage to follow, perhaps because Longmore LJ has run together the two separate concepts, breach of duty and causation. It is however important to note the context in which he has done so, which is in a case where the very risk inherent in the operation of repeated lifting of heavy or awkward loads has eventuated, viz, back injury, and where the employer had carried out no sufficient risk assessment. So it is one of those plain cases where the claimant demonstrates without more a prima facie causal connection between the inherently risky operation and the injury. Furthermore, it is a case where the employer is in breach of duty in having failed to carry out a sufficient risk assessment, and in order to exonerate himself needs to show that he has nonetheless taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. Those are the circumstances in which Longmore LJ said that causation was not a separate hurdle for the employee. It was not a separate hurdle because the employee had already made out a prima facie case, based on the occurrence of the risk inherent in the manual handling operation he was asked to undertake. Longmore LJ recognised that, even in such a case, and where the employer cannot show that he has taken appropriate steps to reduce the risk to the lowest level reasonably practicable, it is only “usually” that he will be liable without more ado. It is still open to the employer to show that his breach of duty has not in fact been causative of the injury, as where for example the employee suffers a heart attack which can be demonstrated to be wholly unconnected with the manual handling operation. Longmore LJ is simply making the point that once a prima facie connection is established between the risky activity and the injury, it is for the employer to disprove causation, not for the employee to prove that, if all possible precautions had been taken, he would not have suffered injury.

These authorities demonstrate that the judge had no need to accede to Mr Pennock’s counter-intuitive submission. Liability under Regulation 4 of the 1992 Regulations is only established on proof of a causal breach of duty. Here the Defendant was arguably in breach of duty in failing to carry out a risk assessment in relation to the task which it asked the Claimant to perform. But on the facts found by the judge, the accident which befell the Claimant did not fall within the ambit of the risk which the Defendant was arguably required to assess. The Claimant simply misjudged her footing when climbing a staircase whilst she happened to be carrying one or more items of post. Her accident was wholly causally unconnected with the circumstance that she was at the time carrying one or more items of post. The circumstance that the Claimant was carrying post may perhaps be described as the occasion for her injury, but it was not a cause of it.

I would allow the appeal and dismiss the claim.

I agree.

I also agree.