Context is Everything: Considering Risk of Injury in the Workplace

In Needle v Swallowfield plc [2020] EWHC 2759 (QB), the High Court considered the Manual Handling Operations Regulations 1992 and reiterated that risk of injury is a context-specific question. The Court must have regard to the particular place of employment and the particular employees involved, including their training and experience, in deciding whether a workplace activity poses a foreseeable risk of injury. To read the judgment, please click here.

Background

The Appellant, Mr Needle, brought a claim under the Manual Handling Operations Regulations 1992 (“the Manual Handling Regulations”) alleging, inter alia, a breach of regulation 4(1)(a) (duty to avoid the need for employees to undertake any manual handling operations at work which involve a risk of injury) and regulation 4(1)(b) (duty to make a suitable and sufficient assessment of manual handling operations).

The Respondent company, Swallowfield plc, manufactured personal care and beauty products. Mr Needle had been employed by the company almost continuously since 1999 as a production line worker and subsequently as an engineering technician. His role as engineering technician was to repair production line equipment and machinery by identifying problems and then fixing them. 

In February 2013, Mr Needle sustained a fracture to the metacarpal bone of his ring finger while handling a 48-kilogram “unwieldy” dispensing pump.

Dynamic Risk Assessments

Since Mr Needle could be called upon to perform a large and varied number of tasks, it was common ground between the parties that it would have been impossible for each task to have been risk-assessed in advance. Mr Needle was therefore trained in “dynamic risk assessments“. According to HHJ Gore QC at first instance:

“What is meant by [dynamic risk assessment] was that experienced and skilled engineers were expected to assess the risks of tasks in hand and make their own decisions, bearing in mind that maintenance, servicing and repair of machines and machine parts involved so many different sizes, shapes and weights of equipment that it was wholly impracticable to undertake a specific risk assessment or provide a specific method statement for each one.”

Judgment at First Instance: No Foreseeable Risk of Injury

The first question was whether Mr Needle had established that the manual handling operation carried a foreseeable risk of injury; if not, the Manual Handling Regulations were not engaged. HHJ Gore QC held that Mr Needle’s claim fell at this first hurdle:

“[T]here was no real or sufficient possibility of risk of injury of some sort to hands or wrists when turning or pushing this piece of equipment as long as employees are warned of the need to apply their experience and skill dynamically to assessing the risk and then to take appropriate care when undertaking an ordinary everyday task by keeping fingers out of the way.”

Appeal Dismissed: Risk of Injury is Context-Specific

Mr Needle appealed, arguing that that it was irrational and wrong to conclude that the manual handling operation did not carry a risk of personal injury given the accepted size, weight and unwieldy nature of the dispensing pump. Of wider relevance, Mr Needle also argued that it was wrong to consider the employee’s training and experience in dynamic risk assessment when assessing the foreseeability of risk of injury; it was argued that this amounted to conflating the initial question of existence of risk with the later question of how the risk might be reduced or eliminated.

Lambert J dismissed Mr Needle’s appeal. The key points of wider relevance from Lambert J’s judgment are as follows:

1. When assessing the risk of personal injury, the Court must take into account the relevant occupational context, including the particular place of employment and the particular employees involved.
2. In concluding that the manual handling operation in question did not pose a foreseeable risk of injury, HHJ Gore QC was entitled to take into account Mr Needle’s training in dynamic risk assessment and the content of that training. A different conclusion as to risk of injury might be reached if the employee in question were inexperienced, untrained or tasked with a one-off job as opposed to a routine one.
3. In the absence of expert evidence on the alleged dangerousness of the dispensing pump, HHJ Gore QC was entitled to conclude that Mr Needle’s handling manoeuvre was not one which carried an intrinsic risk of injury.

Conclusion

Needle v Swallowfield plc reiterates the observations of Hale LJ (as she then was) in Koonjul v Thameslink Healthcare Services [2000] PIQR P123: whether an activity poses a risk of injury is a context-specific question. Thus, in Koonjul itself, Hale LJ considered the specific context of a care assistant working in a small residential care home for children with learning disabilities. In finding that there was no breach of the Manual Handling Regulations in Koonjul, Hale LJ had regard to the Claimant’s experience and training and held that it would be impracticable to require employers to undertake a precise evaluation of each of the “innumerable“, low-risk, everyday manual handling tasks carried out in a care home.

Needle v Swallowfield plc provides a helpful reminder of the importance of looking beyond the manual handling operation at hand or any risk assessments in place: evidence as to the employee’s training, experience, how often the task would be performed, the number of potential different manual handling tasks and even the size of the employer (see Koonjul at [13]) may all be relevant to the Court’s decision on foreseeability of risk of injury. Since risk of injury is not a consideration specific to manual handling operations, the workplace context will probably also be relevant when considering risk of injury under the other Health and Safety at Work regulations.