21 May, 2012
Ali Ghaith v Indesit Co UK Ltd (2012)
The Court of Appeal on the 17th May 2012 delivered its judgment in an appeal relating to a manual handling claim where there had been no suitable or sufficient assessment by the employer of the relevant risk of injury to the employee who was carrying out a stock take exercise of contents of his van used for storing spare parts used for repair and maintenance.
Briefly, G had suffered a back injury whilst removing boxes from his van for his supervisor to check and record towards the end of the shift during a stock taking exercise which began at 9.30am and took most of the day, with 4 short break periods. Allegations under the Manual Handling Operations Regulations (MHOR) 1992 were raised. The Court at first instance dismissed the claim on the basis that the Judge was not satisfied that the injury had been caused by a breach of reg.4, which required the employer, where a manual handling operation could not be avoided, to make a suitable and sufficient assessment of the task and take appropriate steps to reduce the risk of injury.
G appealed the finding on the basis that the employer had to show that the risk of injury was at the lowest level reasonably practicable and not for the Claimant to suggest things which the employer should have done but did not do and that the burden of proof was on the employer.
The Appeal Court held that the requirement in reg.4(1)(b)(ii) to make a suitable and sufficient assessment of the risk was separate and additional to the need to carry out a risk assessment as set out in reg.4(1)(b)(i) and the burden of proof was indeed on the employer to prove that it had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. Stock taking involving the need to move boxes over prolonged periods gave rise to the risk of injury to the back or other parts of the body. That risk was not addressed in the assessments carried out by the employer. The Appeal Courts indicated that there should have been regular breaks in the process. Causation was not a separate hurdle for an employee to overcome as the onus was on the employer that they had taken appropriate steps to reduce the risk. If an employer didn't do that then they would be usually liable. The onus was on the employer to show that even if it had taken all practicable steps to reduce the risk of injury, the injury would still have occurred and it was not for the employee to prove the negative proposition. There was no separate risk assessment for the stock taking task other than a generic assessment. The appeal was allowed and the matter remitted to the County Court for an assessment of damages hearing.
This appeal once again shows that in the absence of specific task based assessments it would be difficult for employers to satisfy the requirement of reg.4. The evidential burden is also on the employer in the event that allegations are raised under the MHOR.