28 May, 2021
This question arose in two cases over the last 6 months that help identify the issues that need to be considered.
The first is the County Court decision in Galvin v Chief Constable of Thames Valley decided in February 2021. In this case the training that the claimant had undertaken in carrying out a dynamic risk assessment was an important factor.
It involved a claim by a police officer who was injured as she stepped out of a moving police van. She alleged that she had been in the rear of a police van that had been pursuing robbery suspects. The van doors were open, and 2 officers had already jumped out to chase the suspects. The driver of the van was looking for a place to stop so slowed down, and in fact came to a stop, but then moved off again, as she jumped out and badly injured herself. Her allegations included that there was no safe system of work.
The judge found that whilst officers did exit from moving vehicles, good practice was to wait until it was stationary. However, all the officers knew it was up to them to make their own decision about when it was safe to leave the van. She, and all the other officers, had been trained to carry out a dynamic risk assessment in relation to deciding what action to take. The court accepted that this was a safe system of work. It was impossible to have different protocols in place for every possible scenario. The best solution was the one in place, namely a dynamic risk assessment for which she had been trained.
The case of Needle v Swallowfield in the High Court decided in October 2020 reaffirmed that the particular employee's knowledge and experience are a relevant factor in coming to the decision about the reasonableness of a dynamic risk assessment. It was the claimant's job to carry out a large number of tasks, including to repair machinery, and the court accepted that it would be impossible to pre-risk assess each individual task. The claimant was again trained in carrying out dynamic risk assessments. If having done such an assessment he decided it was not safe for him to do the job, then he was trained to seek assistance. There was evidence before the court of a culture of that happening. The claimant was an experienced engineer who injured his hand whilst moving a heavy piece of equipment on a workbench alone.
On appeal the judge referred to the Court of Appeal case of Koonjul v Thameslink Healthcare Services . This case said that there must be an element of realism to the analysis of risk otherwise a full assessment of every manual handling operation could be a major effort.
Regulation 4(3)(c) of the Manual Handling Operations Regulations 1992 specifies that the knowledge and training of the claimant are factors that are taken into account when considering the risk of injury.
So the judge has to take into account the context of the particular employee, namely that he had been trained in carrying out a dynamic risk assessment; that assessment required him to appraise the handling task and consider whether it could be undertaken safely on his own; if so, that he should devise and adopt a safe method of handling; that, although this was a unique handling task (in the sense that the Appellant could not remember ever having handled the equipment on the workbench before) his undertaking "unique" tasks was a routine part of his work. Undertaking "one-off" repairs were all part and parcel of the Appellant's day to day work as a fixer or problem-solver. As such, in this context, there was no foreseeable risk of injury. If the claimant had been an inexperienced and untrained employee it may well have been a different outcome.
The legal duty for employers to have made a "suitable and sufficient" assessment of the risks is set out within the Management of Health and Safety at Work Regulations 1999 (MHSWR). Regulation 3 requires that assessments must be recorded when the employer has 5 or more employees and reviewed and updated as necessary.
In relation to the concept of "knowledge and experience" of employees noted within the cases analysed above, regulation 10 of MHSWR states that there is a duty on employers to provide their employees with comprehensible and relevant information on the risks to their health and safety, and to have preventive control measures and emergency procedures. Regulation 13 requires the employer to take into account the capabilities of employees when allocating tasks and initial and ongoing training are important considerations for employers to be aware of.
A hazard is something with the potential to cause harm. A risk is the likelihood that a hazard will cause harm in combination with the severity of the injury, damage or loss that might foreseeably occur. The usual objective of undertaking risk assessments is to evaluate the risk and then either eliminate or control that risk to acceptable levels.
So do the above cases eliminate the need for employers to undertake written risk assessments?
The short answer is "No". Written risk assessments continue to play a critical and important role in legal duties on employers who may face regulatory and civil investigations. However, in situations with events or tasks where various factors may impact on a task being undertaken in the form of dynamic actions, dynamic risk assessments are important as a control measure to minimise and reduce the risk of injury. Some may simply say this is a "common sense" approach, but each incident has to be judged on its fact on whether dynamic risk assessments were suitable and sufficient for a particular activity or task was undertaken by that particular employee.
As is often the case in all types of work activity including manual handling operations, the instruction, information, supervision and training of employees is a key factor in addition to a suitable and sufficient risk assessment. However, the court will not impose an undue burden on employers where there are many and varied tasks that have to be carried out. Training your employees to properly carry out a dynamic risk assessment in these circumstances is the way forward, so long as there are resources in place to enable them to do it properly and to have recourse to extra assistance where the dynamic risk assessment reaches that conclusion.
For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686 or Ridwaan Omar via email or phone on 01254 222457.Alternatively send any question through to Forbes Solicitors via our online Contact Form.