Bhuiyan v Sainsburys Plc

A claim under the Manual Handling Operations Regulations 1992 requires proof that the work caused the injury, including where the case is put as exacerbation or accelerated onset of a degenerative condition. Regulation 4 also requires the employer, so far as reasonably practicable, to avoid risky manual handling or, if that cannot be avoided, to make suitable and sufficient assessments. An appellate court should be slow to interfere with a trial judge’s assessment of competing expert evidence, particularly where the judge saw and heard the witnesses. Appropriate risk assessments and training may defeat breach even if causation were established.

The claimant, employed as a shelf stacker by Sainsburys plc, alleged that manual handling at work caused or exacerbated acute lower-back pain and a degenerative spinal condition, contrary to regulation 4 of the Manual Handling Operations Regulations 1992.

His Honour Judge Mitchell, sitting in the Central London County Court, dismissed the claim on 22 August 2014. He preferred the defendant’s orthopaedic evidence, found no causal link with the work, and also found no breach because suitable and sufficient risk assessments had been made. The claimant renewed his application for permission to appeal, challenging the judge’s reasoning, his assessment of the expert evidence, and reliance on the absence of contemporaneous work-related complaints.

1. Permission to appeal was refused. The proposed appeal was considered hopeless because the trial judge’s findings defeated both causation and breach.
2. The Court of Appeal applied the approach recently considered in West Sussex County Council v Kim Fuller [2015] EWCA Civ 189. A claim under the Manual Handling Operations Regulations 1992 requires proof of a causal link between the work required and the injury. That requirement applies equally where the alleged injury is an exacerbation of, or accelerated onset of, a degenerative condition.
3. The judge was entitled to prefer the defendant’s expert evidence. The assessment of evidence by a trial judge who has seen and heard the witnesses is surrounded by considerations which may not all appear expressly in the judgment. The principle in Biogen v Medeva [1997] RPC 1 reinforced the substantial difficulty of inviting an appellate court to substitute its own assessment, particularly where there was no transcript of the expert evidence.
4. Regulation 4 requires an employer, so far as reasonably practicable, to avoid the need for manual handling involving a risk of injury. Where avoidance is not reasonably practicable, the employer must make suitable and sufficient assessments, having regard to the factors in column 1 of Schedule 1. The trial judge was entitled to find that the assessments were appropriate as updated.
5. The evidence also supported the finding that the claimant had received training and had made no complaint about it. The work of a shelf stacker inherently involved lifting boxes, and the claimant’s evidence did not establish that the handling caused or contributed to his condition. The alternative case on exacerbation or accelerated onset also failed because the accepted evidence identified no scientific methodology supporting it for this spinal condition.

• Court of Appeal (Civil Division): On 24 June 2015, Lord Justice Tomlinson refused the renewed application for permission to appeal.
• County Court sitting at Central London: On 22 August 2014, His Honour Judge Mitchell dismissed the claimant’s personal injury claim.