Ghaith v Indesit Company UK Ltd

Where a manual handling operation presents a risk of injury, the employer bears the legal burden of proving that appropriate steps reduced that risk to the lowest level reasonably practicable. The employee may identify possible precautions but has no obligation to do so.

A risk assessment must address the actual operation and its material features, including its duration. Assessments of different activities are insufficient. The assessment duty and the duty to reduce risk are separate. Failure to discharge the latter will usually establish liability unless the employer proves that the injury would have occurred despite all practicable precautions. Momentary inattention ordinarily does not amount to contributory negligence, particularly where the employee is not controlling dangerous machinery.

The appellant field service engineer suffered a back injury while removing and moving spare parts during an all-day stocktaking operation. He claimed damages from his employer for breach of the Manual Handling Operations Regulations 1992. The operation involved several hours of lifting, and the trial judge found that a moment of inattention led to an awkward movement while the appellant's back was already vulnerable.

His Honour Judge Cowell held that the employer's existing risk assessments were suitable and sufficient and that nothing more could have been done to prevent the injury. He therefore dismissed the claim. The employee appealed, principally contending that the assessments did not address stocktaking, that reasonable precautions such as regular breaks had not been taken, and that the judge had misplaced the burden of proof.

1. Appeal allowed unanimously. The existing risk assessments were neither suitable nor sufficient for the stocktaking operation. The August 2006 assessment concerned repair and maintenance in customers' premises, while the December 2006 assessment concerned tote boxes in loading and despatch areas. Neither addressed the risk arising from handling equipment of differing weights over a lengthy period. The subsequent assessment treating stocktaking separately and contemplating a two-hour operation supported that conclusion.

2. The requirements in regulation 4(1)(b)(i) and regulation 4(1)(b)(ii) of the Manual Handling Operations Regulations 1992 were separate, though related. Applying Egan v Central Manchester NHS Trust [2009] ICR 585, once a manual handling operation was shown to carry some risk of injury, the employer bore the legal burden of proving that appropriate steps had reduced the risk to the lowest level reasonably practicable. An employee might bear an evidential burden when advancing suggested precautions, but had no obligation to identify them.

3. The employer did not discharge that burden. Regular breaks of reasonable length were an obvious and reasonably practicable precaution during a stocktake lasting substantially longer than two hours. The trial judge had not considered that precaution properly. Retraining and an equal division of lifting were less persuasive measures, but their weakness did not answer the failure to provide adequate breaks.

4. Causation was not a separate burden for the employee in these circumstances. Where the employer failed to prove that it had reduced the risk to the lowest level reasonably practicable, it would usually be liable. An employer could avoid liability by proving that the injury would have occurred despite all practicable precautions, as with a freak accident, but the burden of establishing that exception rested on the employer.

5. The employee's momentary inattention did not justify a finding of contributory negligence. Such inattention would not ordinarily warrant a deduction, at least where the claimant was not controlling dangerous machinery such as a motor vehicle.

6. The matter was remitted to the County Court for assessment of damages.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The employer was held liable, and the claim was remitted to the County Court for assessment of quantum.

2. Central London Civil Justice Centre: His Honour Judge Cowell held that the employer's risk assessment was suitable and sufficient, that no further precaution would have made a difference, and that no breach of regulation 4 of the Manual Handling Operations Regulations 1992 had caused the injury. The claim was dismissed.