King v RCO Support Services Ltd

An operation falls within the Manual Handling Operations Regulations 1992 when its performance involves transporting or moving a load, even though the employee’s injury arises while moving around the workplace rather than from direct contact with the load. An employer must avoid such an operation where it involves a risk of injury and avoidance is reasonably practicable.

An occupier with some control over a workplace is liable under the Workplace (Health, Safety and Welfare) Regulations 1992 only for requirements relating to matters within its control. Entrusting an operation to an independent contractor may place that matter outside the occupier’s control. An employee’s failure to take care may justify contributory negligence without breaking the causal connection between the employer’s statutory breach and the injury.

The claimant was employed by RCO Support Services Ltd to clean buses at a yard owned by Yorkshire Traction Company Ltd. After finding the yard covered in ice, he spent more than two hours distributing grit with a sack barrow and shovel. He slipped after stepping from a gritted area onto untreated ice.

The Wakefield County Court dismissed claims against both companies for negligence and breach of statutory duty. The negligence rulings were not challenged. The claimant appealed against the dismissal of his claims under regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 and regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. The central issues were whether distributing grit was a manual handling operation involving a risk of injury, whether the yard owner controlled the relevant matter, and whether the claimant was contributorily negligent.

1. Appeal allowed against the employer and dismissed against the yard owner. Kay LJ delivered the judgment, with which Henry LJ agreed.

2. Distributing grit across the yard was a manual handling operation within regulation 2 of the Manual Handling Operations Regulations 1992. The task involved moving a load of grit from its pile and distributing it. Its proper character included the employee’s movement around the large icy yard during the operation. There was a clear and obvious risk that he might step onto an untreated area and be injured. It was unnecessary to decide whether “risk” in regulation 4(1)(a) necessarily imported foreseeability because the risk satisfied any applicable formulation.

3. Regulation 4(1)(a) therefore required the employer to avoid the operation unless avoidance was not reasonably practicable. Any reliance on reasonable impracticability had to be pleaded. As no such case had been pleaded, the court proceeded on the basis that the operation could reasonably have been avoided, presumably through a mechanical gritter. Avoidance would have prevented the accident. Any carelessness by the employee did not break the causal connection and was relevant instead to contributory negligence.

4. The yard owner had a degree of control over the workplace for regulation 4(2) of the Workplace (Health, Safety and Welfare) Regulations 1992. The relevant question, however, was whether keeping the surface free from a slipping hazard related to a matter within that company’s control. The gritting operation had been entrusted to the employer as an independent contractor, and there was no evidence that the yard owner retained control over that matter. The claim against the yard owner under regulation 12(3) therefore failed.

5. The employee was experienced and could have avoided the danger by maintaining concentration. The employer nevertheless had to anticipate that concentration might lapse during a task lasting more than two hours. Responsibility was apportioned equally. Judgment was entered against the employer for one half of the damages, reflecting 50 per cent contributory negligence.

1. Court of Appeal: The appeal was allowed against RCO Support Services Ltd. Judgment was entered for one half of the claimant’s damages because of 50 per cent contributory negligence. The appeal against Yorkshire Traction Company Ltd was dismissed.

2. Wakefield County Court: His Honour Judge Barr-Young had dismissed the claims against both respondents on liability and would alternatively have assessed contributory negligence at 100 per cent.