West Law Report

Burden on employer to prove risk assessment

Posted in Times Law Report by mrkooenglish on February 19, 2009

From The TimesFebruary 3, 2009

Burden on employer to prove risk assessment
Court of Appeal
Published February 3, 2009
Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment December 15, 2008

Where a hospital employee was injured using a mechanical hoist to move a patient, the burden was on the employer to prove that it had taken appropriate steps to reduce any risk to the lowest reasonably practicable level.

The Court of Appeal so stated when allowing the appeal of the claimant employee, Donna Egan, from the dismissal by Judge Tetlow, at Salford County Court, on April 18, 2008, of her claim against the defendant employer, Central Manchester and Manchester Children’s University Hospitals NHS Trust, for personal injuries suffered on June 17, 2003, which she alleged had been caused by the trust’s breach of its duty under, inter alia, regulation 4(1)(b) of the Manual Handling Operations Regulations (SI 1992 No 2793) and the Work Equipment Regulations (1998 No 2306).

The claimant, a nurse, had been injured when a mechanical hoist that she had been using to transport a disabled patient into a bath had stopped suddenly when the hoist’s wheels jammed. Mr Martin Littler for the nurse; Mr James McKeon for the trust.

LADY JUSTICE SMITH said that it was clear from the judgment that the judge had not given separate consideration to regulation 4(1)(b)(ii). He should have done so because the requirements of that regulation were separate from and additional to the requirement, under regulation 4(1)(b)(i), to carry out a risk assessment.

Of course, the two were related, in that a risk assessment would show an 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 had carried out a careful and thorough risk assessment and had taken all steps which appeared from that assessment to be appropriate to reduce the risks involved to the lowest reasonably practicable level, the employer would be in a strong position to defend itself under regulation 4(1)(b)(ii).

However, where, as here, no risk assessment had been carried out, the judge ought to focus on that regulation which imposed a duty to take positive action to reduce risk.

The judge would approach that regulation on the basis that once it had been shown that the manual handling operation carried some risk of injury, then the burden of proof was on the employer to plead and prove that it had taken appropriate steps to reduce the risk to the lowest level reasonably practicable.

In practice, if a claimant wanted to allege that there were steps which should have been taken and the employer said there were none, there would be an evidential burden on the claimant to advance those suggestions, even though the legal burden would remain on the employer.

So although the judge’s approach had not been correct, it had been capable of leading him to the right conclusion.

Accordingly, the employer had been in breach of its duty under regulation 4(1)(b)(ii) and was primarily liable for the injury.

On the question of contributory negligence each party had caused the injury in that, if either had taken proper care, the accident would probably have been avoided. Her Ladyship was unable to distinguish between the two parties when considering blame-worthiness; neither side could or should be heavily criticised. Accordingly, the parties should share responsibility equally, so that the defendant was liable to the claimant in 50 per cent of the damages.

Lord Justice Keene and Lord Justice Sedley agreed. Solicitors: Donns LLP, Manchester; Weightmans LLP, Liverpool.

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