Sloan v The Governors of Rastrick High School

The duties in regulation 4(1) of the Manual Handling Operations Regulations 1992 operate in stages. An employer must avoid risky manual handling where reasonably practicable. If that is not possible, it must make a suitable and sufficient assessment, reduce risk to the lowest reasonably practicable level, and provide appropriate load information. The employer bears the burden of proving compliance with the risk-reduction duty and, where it has failed, absence of causation. A risk assessment need not be prepared by a person holding a particular job title, but the assessor must have suitable training and experience. An appellate misdirection on the burden is harmless where the findings show that the evidence was evaluated correctly and the burden was applied in substance.

A learning support assistant claimed damages for shoulder and back injuries said to have resulted from pushing pupils in wheelchairs at a mainstream secondary school. She alleged breaches of the Manual Handling Operations Regulations 1992 concerning avoidance of manual handling, risk assessment, risk reduction and load information. After a three-day trial, Mrs Recorder Stocken found that she had suffered a short-lived strain but that the school was not in breach and that later symptoms were unrelated. The Bradford County Court dismissed the claim. The appeal concerned the burden of proof, reasonable practicability of powered wheelchairs, the adequacy of student-specific assessments and training, expert evidence, causation and costs.

1. Disposition. The appeal was dismissed. The recorder had misdirected herself in placing the burden on the claimant for breach and causation. However, reading the judgment as a whole, she made firm findings on the evidence and had in substance applied the correct burden described in Egan and Ghaith ([2008] EWCA Civ 1424; [2012] EWCA Civ 642). The error therefore did not undermine the dismissal.
2. Avoidance. The school accepted that manual wheelchairs involved a risk of injury. It nevertheless had no control over pupils’ wheelchairs, which were supplied by the NHS or privately, and replacing manual chairs with powered chairs could conflict with pupils’ medical needs, rehabilitation and independence. The finding that avoidance was not reasonably practicable was clear and not perverse.
3. Assessment. Regulation 4(1)(b)(i) required a suitable and sufficient assessment, but prescribed no particular job title for the assessor. The assessment had to be prepared by a person with the necessary training and experience. The evidence justified the finding that the school’s trained and experienced assessor, working with relevant health professionals, was qualified. Swain v Denso Marston Ltd ([2000] EWCA Civ 3021) was distinguishable because it concerned specialised machinery and the absence of a relevant systematic assessment.
4. Risk reduction. The obligation under regulation 4(1)(b)(ii) was separate from the assessment obligation. The school established appropriate measures, including training, staff rotation, short periods of wheelchair pushing and safe routes. The claimant had no obligation to suggest further measures or produce expert evidence, but her criticisms did not displace the finding that risk had been reduced to the lowest reasonably practicable level.
5. Information and evidence. Providing combined student-and-wheelchair weights was neither necessary nor appropriate where the weight was visually apparent, and the absence of that information did not cause the injury. Challenges concerning school layout, engineering evidence, medical evidence and causation failed because the injury was found to have resulted from a single push on a flat surface and the recorder’s credibility and medical findings were supported by the evidence.
6. Costs. Late disclosure could be relevant to costs, but there was no material prejudice and it could not be said that the only reasonable response was to deprive the school of its costs. The challenge to copying costs for medical reports also failed. The costs orders stood.

• Court of Appeal (Civil Division). Appeal dismissed.
• Bradford County Court. Mrs Recorder Stocken dismissed the personal injury claim after a three-day trial.