King v Sussex Ambulance Service NHS Trust

Under Manual Handling Directive 1990, an employer must use an organisational measure or means that is appropriate and capable of avoiding or reducing a manual-handling risk. A failure merely to give an unproved alternative more consideration does not establish breach or causation.

An ambulance service owes its employees the ordinary employer’s duty of reasonable care. The seriousness and foreseeability of the risk must be balanced against the urgent public purpose of the work and the practical availability of effective precautions. Public-service employment creates no general immunity from liability, but no breach is proved where no appropriate alternative method or equipment is shown.

An ambulance technician was injured while he and a colleague carried an urgent, but non-emergency, patient down a narrow and steep staircase in a carry chair. The trial judge awarded the technician about £34,000 after finding that the service had breached Article 3.2 of the Manual Handling Directive 1990 by treating the possible use of the fire brigade as a last resort rather than giving it serious consideration.

The service appealed. By a respondent’s notice, the technician also relied on the Manual Handling Operations Regulations 1992 and negligence. The central issues were whether calling the fire brigade was an appropriate measure to avoid or reduce the handling risk, whether any breach caused the injury, and whether the service had failed to exercise reasonable care towards its employee.

1. Appeal allowed unanimously. Lady Justice Hale held that the evidence did not establish a breach of the Manual Handling Directive 1990 or the Manual Handling Operations Regulations 1992. The court did not finally decide whether the Directive and the Regulations could differ in another case.

2. Article 3 distinguishes between avoiding manual handling and reducing the risk where it cannot be avoided. The latter duty requires appropriate measures or means. An alternative must be shown to be suitable and capable of reducing the risk in the circumstances. Calling the fire brigade was rarely used, needed careful planning, would take time and might distress the patient. There was no evidence that it would have been available, suitable or accepted in this case. Nor was there proof that greater emphasis in training or further consideration on the day would have prevented the injury.

3. Lady Justice Hale held that the service owed the claimant the ordinary employer’s duty to provide safe equipment and a safe system of work. Ogwo v Taylor [1988] 1 AC 431 established no special rule reducing that duty for inherently dangerous public-service occupations. In assessing breach, however, the court had to balance the considerable handling risk against the urgent public purpose of responding to the patient and the practical means available. No evidence showed that suitable alternative equipment existed or that use of the fire brigade was reasonably practicable.

4. Lord Justice Buxton agreed. He additionally held that the fire-brigade issue had not been properly pleaded or developed before trial, so it was unfair to criticise the service for not having anticipated and answered it with fuller evidence. He also agreed that a proposed case based on the provision of different equipment would be a new, unsupported case and should not be remitted.

5. Lord Justice Buxton expressed obiter concern that the approach in Watt v Hertfordshire County Council [1954] 1 WLR 835 might require reconsideration in a suitable higher tribunal. The court was nevertheless bound to apply it on the evidence before it.

• Court of Appeal (Civil Division) Allowed the Trust’s appeal in [2002] EWCA Civ 953 and set aside the judgment for the claimant.
• Lambeth County Court On 5 July 2001, His Honour Judge Cox gave judgment for the ambulance technician for approximately £34,000, finding a breach of Article 3.2 of the Manual Handling Directive 1990.