Brazier v Dolphin Fairway Ltd.

In a negligence claim, an employee’s injury during manual handling does not, by itself, justify an inference of negligence. Res ipsa loquitur applies only where the circumstances show that the kind of accident ordinarily does not happen without negligence. Only then does an evidential burden pass to the defendant. The claimant must establish a foreseeable risk of injury from the work system. A risk-assessment duty under the Manual Handling Operations Regulations 1992 arises only where that threshold is met. A new, unpleaded statutory-duty case cannot ordinarily be raised for the first time on appeal.

Mr Brazier claimed damages for an inguinal hernia allegedly sustained while lifting a pallet during his employment with Dolphin Fairway Ltd. The Liverpool County Court dismissed the claim, holding that he had not proved that the system of work created a foreseeable risk of injury.

On appeal, he argued that the circumstances justified an inference of negligence under res ipsa loquitur. He also sought to rely, for the first time, on the risk-assessment duties in the Manual Handling Operations Regulations 1992. The central issues were whether negligence could be inferred from the accident alone and whether the statutory point could be entertained.

Appeal dismissed. Lady Justice Smith delivered the judgment, and Lord Justice Wilson agreed. There was no order for costs.

1. The claimant bore the ordinary burden of proving negligence. The evidence did not establish the weight of the pallet, the forces involved, the height of the stack, that the pallet was wet, or any previous accident or complaint concerning the system of work. The trial judge was entitled to conclude that a foreseeable risk of injury had not been proved.
2. Res ipsa loquitur is not engaged by every accident. An inference of prima facie negligence arises only where the circumstances are such that the judge can conclude that this kind of accident does not usually happen without negligence. The evidential burden then passes to the defendant. An accident involving the lifting of a pallet, followed by a hernia in a claimant who was predisposed to that condition, did not meet that threshold.
3. The proposed statutory-duty argument was not pleaded or advanced at trial and was raised too late on appeal. It was therefore not open to the claimant. In any event, under the Manual Handling Operations Regulations 1992, the relevant duty to avoid risky manual handling or undertake a risk assessment arises only where the operation involves a risk of injury. That threshold had not been proved, and the evidence did not establish what a risk assessment would have shown.
4. The appeal was dismissed, with no order for costs.

1. Court of Appeal (Civil Division). On 4 November 2005, the appeal was dismissed.
2. Liverpool County Court. HHJ Stewart QC dismissed the personal-injury claim on 24 June 2004, finding insufficient evidence of a foreseeable risk of injury.