10 March, 2023
The Management of Health and Safety at Work Regulations oblige all employers to carry out a risk assessment of the tasks their employees undertake, and take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.
The lack of a risk assessment is not enough to establish a claim. A claimant still has to prove there was a breach of duty and a causative link between the breach and the injury. Understanding how risk assessment is supposed to work is the best place to start.
A good example of how this works in practice is the case of Swain v Denso Marston Ltd. Alan Swain suffered a crush injury to his hand when a heavy roller he was removing from a machine fell on to his hand. He had worked for the defendant for 14 years. He expected the roller to be hollow, but it wasn't. As he removed the last bolt it fell and trapped his hand causing an injury.
The employer knew who had manufactured and supplied the machine. A proper risk assessment would have considered whether the repair should have been carried out by their staff, or the manufacturer. The assessment would have addressed whether there was a manual for the machine or whether the manufacturer should have been contacted. If neither had been done or was available, there should have been an assumption that it might be unexpectedly heavy.
Regulation 4 (1) (b) (iii) recommends employers should inform employees that there was risk of injury when carrying out non routine repairs of machines. In Alan's case that would have alerted him or the employer, to the risk of the roller being heavy. The court concluded these failures caused Alan's injury.
This poses the question, does there have to be detailed assessment in every case?
The Courts have taken the view that where the task is an "everyday task" or where nothing more could have been done by the employer, the lack of a risk assessment is not fatal .
The employer has to prove they took appropriate steps to reduce the risk to the lowest level practicable. If they do not, they will usually be liable.
An employer may have a defence if they can argue the injury was caused by a freak accident. Each case turns on its own facts, for example, slipping as a result of oil leaking from a machine. There would be risk of slipping if the leak wasn't repaired or cleared. Spilling or leaving something on the floor, not clearing or picking it up or warning people of its presence is likely to leave an employer liable.
An employer can still argue their breach of duty has not caused the injury. For example, an employee who suffers a heart attack whilst lifting an excessive weight. The heart attack may have occurred in any event. It cannot be shown it was caused by the lift.
Employers are required to conduct suitable and sufficient risk assessments and act upon them.
If they fail to, and the claimant proves the injury was caused by the negligent act, the employer has to prove there was no connection between risky operation and their injury. The Enterprise and Regulatory Reform Act 2013 does not change the way this works.
If you, a loved one, or a friend have sustained an injury at work and would like some advice, please contact one of the team for some no win, no fee, no obligation advice.
We accept cases on a no win no fee basis and we limit our success fee to 15%. Many firms charge 25%.
For more information contact John Bennett in our Personal Injury department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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