Costa v Imperial London Hotels Ltd

Under regulation 4(1)(b)(ii) of the Manual Handling Operations Regulations 1992, an employer must take reasonably practicable steps to reduce the risk of injury to the lowest level reasonably practicable. Refresher training may be required where it is a cheap, easy and effective risk-reduction measure. The duty is not one of strict liability.

Causation remains a distinct factual question. The claimant must prove, on the balance of probabilities, that the breach was a cause of the injury. A reduction in risk alone is insufficient. Where the evidence does not establish that omitted training would have altered the claimant’s conduct and prevented the injury, causation is not proved.

A chambermaid claimed damages from her hotelier employer after injuring her shoulder and aggravating a pre-existing neck condition while moving a bed to hoover underneath it. Her claim relied principally on the Manual Handling Operations Regulations 1992.

The trial judge found that the Regulations applied, that the claimant had received adequate initial training but no refresher training, and that refresher training should have been provided. He found 35% contributory negligence and gave judgment for the claimant. The employer appealed against the findings of breach and causation. The central issue was whether the absence of refresher training caused the injury.

1. Appeal allowed. The claimant failed to prove that the absence of refresher training caused her injury.
2. Regulation 4(1)(b) applies where manual handling cannot reasonably practicably be avoided and involves a risk of injury. Regulation 4(1)(b)(i) requires an appropriate risk assessment, which had been carried out. The material issue was regulation 4(1)(b)(ii), requiring appropriate steps to reduce the risk to the lowest level reasonably practicable.
3. The test under regulation 4(1)(b)(ii) is reasonable practicability, not strict liability, mere practicability or possibility. Refresher training was reasonably practicable. It was inexpensive and easy to provide, and the judge was entitled to rely on the defendant’s health and safety officer’s evidence as relevant support for his independent conclusion. The finding of breach stood.
4. Causation required the court to ask whether the breach was a cause, though not necessarily the only cause, of the injury. The exceptional approach in multiple-cause cases, illustrated by Fairchild v Glenhaven [2002] 3 WLR 89, was unnecessary. If the injury would probably have occurred anyway, liability was not established.
5. Where liability depends on omitted refresher training, the claimant must prove that the training would have altered her manual-handling practice and that the altered practice would have prevented the injury. The Court of Appeal accepted that the judge could find the training would alter her practice and could rely on his assessment of her demonstration. However, there was no sufficient evidential foundation that training would have prevented injury while she rolled or pulled the bed without lifting it. The apparent finding that she had lifted the bed was unsustainable.
6. The judgment contained an inadvertent inversion of the breach and causation questions and a bare assertion of causation. It was not, however, a case in which the judge had failed to explain himself within the principle discussed in English v Emery Reimbold [2002] EWCA Civ 605. The Court of Appeal accepted the primary factual findings and was in as good a position as the trial judge to determine causation. The claimant had not discharged the burden of proof.

• Court of Appeal (Civil Division): appeal allowed from the judgment of His Honour Judge Birtles in the Mayor and City of London County Court. The claimant’s claim failed because causation was not proved.