Spencer v Boots The Chemist Ltd

An employer is not liable in negligence merely because a workplace assessment would have identified conditions that were less than ideal or created some increased risk. Liability requires a risk of injury of a kind which a reasonably careful employer should have foreseen and which required preventive steps.

A failure to carry out an assessment under the Management of Health and Safety at Work Regulations 1992 provides, at most, evidence relevant to the common law duty. Where the activity did not involve a foreseeable or significant risk of injury, the absence of an assessment does not establish breach or causation.

The claimant, a pharmacist and store manager, developed a work-related left shoulder injury after repeatedly placing stock bottles into a returns tray at a busy pharmacy. He alleged that the layout, the height and reach of the tray, the confined workspace and the pressure of work made his injury foreseeable.

His claim for personal-injury damages was dismissed after a two-day trial in Brighton County Court. The judge accepted that the task did not create a foreseeable risk of shoulder injury and that there was no breach of the Manual Handling Operations Regulations 1992. On appeal, the claimant relied principally on the absence of a general risk assessment under the Management of Health and Safety at Work Regulations 1992.

Decision

The Court of Appeal unanimously dismissed the appeal. Lord Justice Mance gave the reasons, with which Lord Justice Latham agreed.

1. The issue was not whether Boots owed its employee a duty of care. That duty was well established. The issue was whether the workplace conditions created a foreseeable risk of injury such that reasonable care required Boots to take preventive action.

2. The trial judge was entitled to find that there had been no breach of Article 4(1) of the Manual Handling Operations Regulations 1992. The weights, frequency and height of the movements did not expose the claimant to a foreseeable risk of injury. That finding was not challenged on appeal.

3. The court accepted that a breach of the Management of Health and Safety at Work Regulations 1992 did not itself found a statutory cause of action. Any failure to make the Article 3(1) assessment was relevant only as evidence of a failure to exercise reasonable care. The assessment was directed to identifying measures required under the relevant statutory provisions, here Article 4(1) of the Manual Handling Regulations.

4. Even if a suitable assessment would have identified an unsatisfactory reach, height, workspace and increased elements of risk, the judge could find that those matters did not disclose a significant or reasonably foreseeable risk of shoulder injury requiring action by a reasonably careful employer. The possibility that a susceptible person might be injured did not alter that conclusion.

5. The expert evidence contained tensions which the trial judge was entitled to resolve using common sense, the other evidence and his assessment of fact and degree. An appellate court should be slow to interfere with that evaluative conclusion. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): The claimant's appeal was dismissed: [2002] EWCA Civ 1691.
• Brighton County Court (His Honour Judge Barratt): On 12 March 2002, following a two-day trial, the claimant's personal-injury claim against his former employer was dismissed. The Court of Appeal affirmed that result.