Needle v Swallowfield Plc

Under the Manual Handling Operations Regulations 1992, foreseeable risk of injury must be assessed in the relevant occupational context, including the employee’s knowledge, training and experience. A task-specific risk assessment is not required merely because an operation is unusual where the employee is trained to carry out a dynamic assessment and the operation is not inherently dangerous. An appellate court should not interfere with a first-instance finding of fact or inference unless a material error, failure to consider key evidence or irrationality is shown.

The claimant appealed from HHJ Gore QC’s order of 29 November 2019 dismissing his claim for personal injury sustained while manually manoeuvring a dispensing pump during his employment. The claim principally alleged breaches of regulations 4(1)(a) and 4(1)(b) of the Manual Handling Operations Regulations 1992.

The trial judge held that the operation did not involve a foreseeable risk of injury and that the statutory duties were therefore not engaged. The appeal challenged that factual conclusion and alleged that the judge had improperly used the claimant’s training and experience when deciding whether a risk existed.

1. Appeal dismissed. Permission to appeal was granted, but the appeal was dismissed. The respondent’s notice was not addressed.
2. The relevant question under regulation 4 was whether the manual handling operation involved a foreseeable risk of injury. That question had to be assessed realistically and in context. The relevant context included the particular employee, workplace and operation, together with the employee’s knowledge, training and experience. This approach was supported by Koonjul v Thameslink Healthcare Services [2000] PIQR and reflected in regulation 4(3).
3. The trial judge was entitled, and required, to take into account that the claimant was an experienced and trained engineer instructed to perform a dynamic risk assessment, decide whether a task was within his capabilities and adopt a safe handling method.
4. The finding that the operation did not involve a foreseeable risk of personal injury was open to the judge. In the absence of expert evidence concerning the forces involved, he was entitled to conclude that the pump’s size, imbalance and awkwardness did not establish an intrinsic risk of injury in the relevant context. A different result might arise for an inexperienced or untrained employee.
5. The judge had not unlawfully conflated the gateway question of foreseeable risk with the later duties to avoid the operation or assess and reduce its risks. His observation that a task-specific assessment would have added nothing was incidental and did not show that he had applied the statutory questions in the wrong sequence.
6. The appellate court declined to interfere with the factual conclusion. The caution applicable to appellate review of primary findings and inferences, illustrated by Assicurazioni Generali v Arab Insurance Group [2002] EWCA Civ 1642, was satisfied.

• High Court (Queen’s Bench Division): HHJ Gore QC dismissed the claimant’s claim on 29 November 2019.
• High Court (Queen’s Bench Division): Permission to appeal was granted, but the appeal was dismissed on 16 October 2020.