Still no place to hide
In our last newsletter we commented on the important work equipment case of Hide v The Steeplechase Company 2013 EWCA Civ 545.
In our last newsletter we commented on the important work equipment case of Hide v The Steeplechase Company 2013 EWCA Civ 545. That case was recently considered and followed by the Scottish Court of Session in Carol Kennedy v Chivas Brothers Limited 2013CSIH57 XA132/12, the judgment of which is important for all those handling casualty claims involving the Provision & Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992.
Mrs Kennedy was moving a trolley between 2 machines when the trolley’s swivel wheels aligned themselves other than in the direction of travel, making it difficult for her to move it. As she was trying to pull it by placing her hands on the outside of the trolley, the wheels became ‘unstuck, causing her to strike and injure her hand on the nearby machine. The Pursuer alleged breaches of Regulation 4 of the 1998 Regulations for failing to ensure the work equipment was suitable, Regulation 5 for failing to maintain the trolley in efficient state, in efficient working order and good repair, and breach of the 1992 Regulations for failing to avoid the need for manual handling or reduce the risk of injury to the lowest level reasonably practicable.
Whilst the Sherriff had found for the Defender/Respondent Chivas Brothers, the Court of Session were critical of his findings. In the Court’s opinion:
- It was not conclusive that these were industry-standard trolleys; the Court had to consider the particular use which they were being put to when the accident occurred and whether the equipment was suitable for such use;
- It was not conclusive that there was no evidence of any real difficulties with the trolley pre-accident, as the defender’s reporting system was “not comprehensive”;
- It was not conclusive for the test of ‘suitability’ that no defects could be found with the trolley post accident;
- The concept of reasonable foreseeability under the 1998 Regulations was to be read in accordance with the originating European Directive rather than akin to the concept at common law. The Court therefore agreed with Hide that “Once a claimant shows that he has suffered injury as a result of contact with work equipment which is (or may be) unsuitable it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care”;
- Whilst the pushing of a trolley in itself was a simple task, the need to move loaded trolleys in a limited space, negotiating obstacles, when its wheels had a tendency to stick from time to time, created an obvious hazard with a reasonably foreseeable risk of injury. In the circumstances, the trolley was not ‘suitable’ work equipment;
- The inherent defect in the wheels was a separate issue however to maintenance. There was no evidence that the trolley was in a poor state of repair. The Regulation 5 claim therefore failed (although given the foreseeable risk, it is difficult to understand why the court did not regard the trolley as not being in efficient state);
- As handling the trolley gave rise to a risk of injury, and as there was no specific risk assessment for the task and as the defender had failed to plead that it was not reasonably practicable to avoid such pushing or to put in place any particular precautions, the defender had failed to work through its duties under the 1992 Regulations, in breach of those Regulations;
- In respect of contributory negligence, no reduction was applied – this was a case of “momentary inattention”, with the Pursuer trying to do her best in the circumstances, rather than a “conscious decision to embark upon a risky course of action”.
This is an important decision as it affirms the onerous Hide decision, rendering it increasingly difficult to defend a work equipment claim under the Regulations, even where the claimant may be seen as contributing to his injuries by inappropriately holding or indeed tugging on such equipment. The use of trolleys, particularly in the retail, logistics and manufacturing sectors, are common place. For defendants to try and escape liability for such transient ‘difficulties’, specific risk assessments, imposition of relevant restrictions, a clear record of previous usage/problems and specific training will be required to demonstrate that such trolleys can be used safely in the environment concerned.
The decision is also important in highlighting under the 1992 Regulations that defendants must expressly plead where it is not reasonably practicable to avoid manual handling completely or to reduce the risk any further, as well as averring that the risk of injury had been reduced to the lowest level reasonably practicable. Failure to plead as such, and to adduce evidence in support, is likely to lead to a finding that the 1992 Regulations have also been breached.
Whilst clearly an unhelpful judgment for casualty insurers and their customers, it remains to be seen whether such liability will still be imposed in respect of breaches post 1 October 2013 following the introduction of section 69 of the Enterprise and Regulatory Reform Act 2013, where claimants will have to rely on allegations of negligence alone. The comments in this case, as to the different tests of ‘reasonable foreseeability’ under statutory and common law, may suggest it will be harder for claimants to succeed in such equipment cases going forward although one fears that the Judiciary will keep revising the ambit of the common law threshold to suit any particular case.
For more information in respect of the issues raised in this article, please contact Peter Forshaw, Head of Commercial Insurance on 0151 242 7935 or at firstname.lastname@example.org.