Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust

An employer’s duty under regulation 4(1)(b)(ii) of the Manual Handling Operation Regulations 1992 is separate from and additional to its duty to conduct a risk assessment. Once a manual handling operation is shown to involve some risk of injury, the employer bears the legal burden of proving that it took appropriate steps to reduce that risk to the lowest level reasonably practicable.

A proposed step will ordinarily be appropriate where it would reduce the identified risk and is reasonably practicable. Training and an employee’s knowledge of a hazard do not necessarily discharge the duty where inexpensive physical measures could significantly reduce the risk of human error. An employee’s carelessness may nevertheless justify a reduction for contributory negligence.

A nurse injured her back when a mobile patient hoist stopped abruptly after one of its forks snagged against a concealed bath-supporting plinth. She claimed damages from her employer under workplace equipment and manual handling regulations.

HH Judge Tetlow found that the hoist was not defective and that the accident resulted from its collision with the plinth. Although the employer had conducted no risk assessment, the judge held that this failure had not caused the accident and dismissed the claim.

The nurse appealed. The principal issues were whether the judge had failed to consider the separate duty under regulation 4(1)(b)(ii) of the Manual Handling Operation Regulations 1992, whether reasonably practicable measures could have reduced the risk, and whether the nurse was contributorily negligent.

1. Appeal allowed. Lady Justice Smith, with whom Lord Justice Keene and Lord Justice Sedley agreed, held that regulation 4(1)(b)(ii) imposed a duty separate from and additional to the duty to conduct a risk assessment. A risk assessment identifies the measures that should be taken, but the absence of an assessment requires the court to focus directly on whether the employer took positive action to reduce the risk to the lowest level reasonably practicable.

2. Once the employee showed that the manual handling operation carried some risk of injury, the employer bore the legal burden of pleading and proving that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable. An employee who contends that further measures were available may bear an evidential burden of identifying them, but the legal burden remains with the employer.

3. The later installation of a dedicated hoist did not establish that failing to provide one before the accident was a breach. The existing mobile hoist could be used safely, and the later change formed part of a modernisation programme.

4. Moving a supporting plinth into the operator’s view, adding a further visible plinth, or marking the floor would have helped the operator align the hoist. Those measures were inexpensive, would have reduced the risk of collision significantly, and had not been shown by the employer to be impracticable. Once a measure would reduce an identified risk and was reasonably practicable, it was difficult to regard it as inappropriate. The employer was therefore in breach of regulation 4(1)(b)(ii). The accident would probably have been avoided had either measure been adopted.

5. The nurse was experienced, highly trained, and aware that the hoist required careful alignment. The judge’s unchallenged finding showed that she had made an error, and her failure to observe the forks sufficiently carefully amounted to some carelessness rather than mere inadvertence. The employer had nevertheless failed to guard against the very error that occurred. The parties’ fault was equally causative and equally blameworthy, so liability was apportioned equally.

6. The employer was liable for 50% of the damages. In the absence of agreement on quantum, the claim was remitted to the Manchester County Court for assessment.

1. Court of Appeal (Civil Division): The nurse’s appeal was allowed unanimously. The employer was held liable for 50% of the damages, and assessment of quantum was remitted to the Manchester County Court. [2008] EWCA Civ 1424

2. Manchester County Court: HH Judge Tetlow dismissed the personal injury claim on 18 April 2008. He found that the hoist was not defective and that its fork had snagged against the bath plinth. Although no risk assessment had been undertaken, he held that the omission had not caused the accident.