Swain v Denso Marston Ltd

An employer’s duties under regulation 4(1)(b) of the Manual Handling Operation Regulations 1992 are separate. A failure to assess a manual-handling operation does not excuse failure to provide information about the load where that information was required for the employee’s safety. The assessment duty requires a systematic examination of the task, including appropriate consideration of suppliers, specifications and the possibility that a load may be unexpectedly heavy. The word “appropriate” qualifies the practical means and content of compliance, but does not remove the duty to provide general indications of weight. Criminal sanctions cannot alter clear regulatory language.

Alan Swain, an experienced production fitter, injured his right hand while removing a conveyor roller at work. He expected the roller to be hollow, but it was a solid metal roller weighing about 20 kilograms. No assessment under regulation 4(1)(b)(i) of the Manual Handling Operation Regulations 1992 had been carried out, and he had not been given information about the roller’s weight.

The Leeds County Court dismissed his claim. The Court of Appeal considered whether the duties to assess the operation, reduce the risk and provide information under regulation 4(1)(b) operated conjunctively, and whether the absence of a completed assessment defeated liability for breach of the information duty.

1. Appeal allowed. The order dismissing the claim was set aside. Judgment was entered for the agreed damages of £2,040, with interest from the date of the accident.
2. Regulation 4(1)(b)(i), (ii) and (iii) impose separate obligations. The information duty in regulation 4(1)(b)(iii) does not arise only after completion of a suitable and sufficient assessment under sub-paragraph (i). It would be perverse to excuse an employer which had failed to make the required assessment from obligations that would have applied if it had made one.
3. The assessment duty required a systematic assessment under the control of the employer’s health and safety officer or an appropriate consultant, even if an experienced employee assisted. The assessment should consider the manual-handling tasks involved in repair and non-routine maintenance, whether the work should be done by the employer or the manufacturer, and whether information should be obtained from the supplier.
4. If the weight could not be established, prudence could require an assumption that the load might be unexpectedly heavy, with that indication communicated to employees who needed the information. The word “appropriate” in regulation 4(1)(b)(iii) concerns the practicalities and means of providing information. The obligation to provide general indications of weight is unqualified apart from that inherent qualification; precise information is subject to the express qualification where reasonably practicable.
5. The court explained and distinguished Hawkes v London Borough of Southwark. That case concerned causation where a proper assessment would have shown a task to be a two-person job. It did not make the information duty conditional on a completed assessment. The presumption against criminal sanctions without fault could not control the plain meaning of the Regulations, consistently with Stark v Post Office and LNER v Berriman [1946] AC 278.
6. The costs below were agreed, and the costs of the appeal were remitted for detailed assessment.

1. Court of Appeal: [2000] EWCA Civ 3021. Allowed the appeal from the order of His Honour Judge Cockroft in Leeds County Court dated 1 November 1999. Judgment was entered for £2,040 with interest.
2. Leeds County Court: Dismissed the employee’s claim for damages.