Stewart v Lewisham And Greenwich NHS Trust

Under regulation 4 of the Manual Handling Operations Regulations 1992, an employer’s duty to assess and reduce manual-handling risks arises only where avoidance is not reasonably practicable and the operation involves a real risk of injury. The existence of such risk is contextual and fact-sensitive. HSE guidance figures are approximate aids, not mandatory statutory weight limits. An employee’s individual vulnerability does not necessarily make an otherwise ordinary operation risky for the purpose of the threshold. Where no real risk is established, the statutory assessment and risk-reduction duties do not arise, and consequential causation issues need not be determined.

The appellant, a community midwife, injured her back while lifting a 7.5–8 kg oxygen equipment box during work. She alleged breach of the Management of Health and Safety at Work Regulations 1999, the Manual Handling Operations Regulations 1992, and the common law duty of care.

Recorder Gasztowicz QC dismissed the claim in the Central London County Court on 2 March 2016. The appeal challenged the alleged burden of proof, the need for a detailed risk assessment, the duty to reduce risk, and the treatment of causation and the appellant’s pre-existing degenerative back condition. The central issue was whether the operation involved a real risk of injury requiring action under regulation 4.

The appeal was dismissed unanimously. The Court of Appeal upheld the Recorder’s conclusion that no detailed manual-handling risk assessment was required.

1. Statutory threshold. Regulation 4(1)(b) of the Manual Handling Operations Regulations 1992 applies only where it is not reasonably practicable to avoid manual handling involving a real risk of injury. The employer’s duties to assess the operation and reduce the risk therefore arise only after that threshold is met. The approach was consistent with Koonjul v Thameslink Healthcare Services [2000] PIQR P123, which explained that the risk must be a foreseeable possibility assessed realistically and in context.
2. Factual assessment. The Recorder was entitled to find that lifting the box was not a risky operation for a normal person. Relevant considerations included its weight, purpose-built handle, regular use without complaints, and the evidence concerning the midwives who used it. The appellant’s degenerative condition made the operation unsafe for her, but did not establish that the operation itself involved the requisite real risk.
3. Guidance. The HSE risk-assessment filter provided support for the conclusion, but its figures were approximate guidelines rather than mandatory statutory categories or approved safe-lifting limits. They had to be applied with common sense and regard to the actual circumstances.
4. Consequences. Since no real risk was established, no duty arose under regulation 4 and grounds 1–3 failed. The causation grounds did not arise. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed on 12 December 2017.
• Central London County Court: Recorder Gasztowicz QC dismissed the appellant’s claim for damages on 2 March 2016.