Swain v Denso Marston Ltd [2000] EWCA Civ 3021 (12 April 2000)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE COCKROFT
(Leeds County Court)

Royal Courts of Justice
Strand
London WC2
12th April 2000

B e f o r e :

LORD JUSTICE STUART-SMITH
LORD JUSTICE ROBERT WALKER

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SWAIN
Appellant
– v –
DENSO MARSTON LTD
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

____________________MR RICHARD COPNALL (Instructed by Rowley Ashworth of Leeds) appeared on behalf of the Appellant
MR ANDREW AXON (Instructed by Milners of Leeds) appeared on behalf of the Respondent

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    1. LORD JUSTICE STUART-SMITH: I will ask Lord Justice Robert Walker to give the first judgment.
    2. LORD JUSTICE ROBERT WALKER: This is an appeal with the leave of the judge from an order of His Honour Judge Cockroft made in Leeds County Court on 1st November 1999. The order dismissed a claim for damages made by Alan Swain against his employer, Denso Marston Ltd, arising out of an industrial accident on 8th August 1996. Mr Swain, who is left-handed, suffered a crush injury to his right hand including the fracture of his ring finger. Quantum was agreed at £2,040 if liability was established.
    3. Mr Swain is an experienced production fitter. At the time of his accident he had worked for Denso Marston Ltd for about 14 years. On the day in question he was required to strip down part of the conveyor system at his employer’s premises in Armley Road, Leeds. The bearings on the conveyor roller needed replacing. To do that, Mr Swain had to remove various components and then the roller itself. Mr Swain expected the roller to be hollow as his experience had been that conveyor rollers always were. This was a solid metal roller weighing about 20 kilograms. As Mr Swain removed the last of the bolts holding the roller in place, while he supported the roller with his right hand, the unexpected weight trapped his right hand against the metal frame and caused the crush injury.
    4. The judge accepted Mr Swain as a totally honest and conscientious employee and witness. Mr Swain had candidly accepted that at the work place he was regarded as the resident expert expected to know more about the plant and machinery than anyone else. The conveyor had been supplied by outside suppliers, Precision Engineering of Pontefract, and Mr Swain had originally seen it at their premises. It had been fully assembled when Mr Swain saw it, and he had never had occasion to strip it down himself. He had not been told by the suppliers about the weight of the roller and no brochure was available to him.
    5. It was common ground at trial that the issue of liability depended not on common law principles but on the application of the Manual Handling Operation Regulations 1992 (SI 1992 No 2793 -“the Manual Handling Regulations”). These came into force on 1st January 1993 in implementation of the Manual Handling Directive (90/269/EEC) which was itself the fourth individual directive made under the Framework Directive (89/391/EEC).
    6. Regulation 4 of the Manual Handling Regulations is in the following terms at (1):

“Each employer shall –

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured;

(b) …..

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and

(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications, and where it is reasonably practicable to do so, precise information on –

(aa) the weight of each load, and

(bb) the heaviest side of any load whose centre of gravity is not positioned centrally.”

    1. Schedule 1 of these Regulations lists relevant factors including the bodily tasks involved, the loads and the working environment. Regulation 4 (1) (b) (i) – the duty to make suitable and sufficient assessment of unavoidable manual handling operations which involve a risk of injury – is the subject of official guidance published by the Health and Safety Executive. The assessment is normally carried out by trained personnel of an employer’s health and safety staff, or by specialist consultants. The requirement for an assessment is in line with the general policy in Art 6 of the Framework Directive, that is, to avoid risks so far as possible and to evaluate unavoidable risks, and to combat risks at source. In this case no assessment under paragraph 4 (1) (b) (i) had been carried out by or on behalf of the employer.
    2. The judge noted that in Regulation 4 (1) (b) (iii) the words “where it is reasonably practicable” qualify the obligation on the employer to provide precise information. The obligation on the employer to take “appropriate steps to provide ….. general indications ….. of the weight of each load” is however unqualified, except so far as some further qualification is inherent in the phrase “appropriate steps”. The judge thought that the word “appropriate” relates to the means of communicating the information, and does not add any further qualification. The judge referred, for confirmation of this, to Art 6 of the Manual Handling Directive (which uses the unqualified words “must ensure”).
    3. The judge seems to have been concerned that an unqualified obligation under Regulation 4 (1) (b) (iii) might be oppressive to an employer which was blameless at common law. He found what he called “the key to the problem” in the notion that sub-paragraphs (i) (ii) and (iii) of Regulation 4 (1) (b) must be read conjunctively. The judge said:

“It follows, in my judgment, that it is only where a suitable and sufficient risk assessment has been undertaken which reveals the existence of the risk, in this case namely that the roller was a solid metal roller that the obligations under (ii) and (iii) arise.”

    1. The judge referred to Redgrave, Health and Safety 3rd ed, paragraph 6-8 (page 734) and to the decision of this Court in Hawkes v London Borough of Southwark, 10th February 1998. The judge said that once the risk from a heavy roller had become known the situation would have been different (in fact it is now totally different because a new roller has been fitted weighing only 3 kilograms). The judge continued:

“The difficulty of this case is that it was the ‘resident expert’, if I can use his own phrase, the very experienced fitter, performing this task for the first time during the period that the machine had been installed at the defendant’s premises who suffered this accident.

It seems to me that in reality what he was doing was not merely stripping the conveyor but making exactly such suitable and sufficient assessment as 4 (1) (b) (i) envisages, and it is significant ….. that the two engineers who have been instructed ….. in a joint statement, come to the conclusion that the necessary risk assessment could be delegated to the claimant. It is difficult to see how any employer in this situation could make a suitable and sufficient assessment of risk without unscrewing the screws holding the roller in precisely the way in which this most experienced employee was doing.

Unfortunately the accident occurred before the assessment envisaged in 4 (1) (b) (i) was complete, and the obligation in 4 (1) (b) (iii), therefore, since (i), (ii) and (iii) are to be taken conjunctively, did not arise.”

    1. Quite apart from the correct construction of Regulation 4 (1) of the Manual Handling Regulations, that seems to me, with all respect to the judge, an impossible view of the facts. I should perhaps record that Mr Swain’s evidence in his witness statement was that he asked to have another fitter allocated to help him on the job but that no one was available and he was told to go ahead on his own. He said in his statement:

“I was under a lot of pressure that day as management wanted production up and running.”

    1. This court has been told that the assertion of a request by Mr Swain for assistance was not relied on at trial and that it was for that reason there was no cross-examination on that point. The court is left with the bare fact that Mr Swain did the job on his own. However, it seems to me quite plain that he did it as an urgent maintenance job and not as part of an assessment required by the regulations. Denso Marston Ltd has a health and safety officer, Mr Keith Fairburn, who would have been the natural person to be in charge of the necessary assessment even if Mr Swain, as an experienced fitter, had been asked to assist in part of the task. Had Mr Swain been asked to undertake or to assist in undertaking the sort of assessment of risk which Regulation 4 (1) (b) (i) requires, he should have done so under the guidance of the health and safety officer and he should have had the nature of the task explained to him; he should have been given time to think about it and plan it; he should have been asked what assistance he needed; and he should have had the opportunity of contacting suppliers and (if necessary) getting copies of manuals and specifications which were not available at the work place. None of that, in fact, occurred.
    2. That ground on which the judge based his judgment cannot, in my view, be supported, and Mr Axon (appearing in this court, as below, for the employer) has not sought to do so. Nor can I accept that the fact that Regulation 4 (1) (b) imposes three separate obligations (if that is what the judge meant by “conjunctively”) exonerates an employer from liability for breach of an obligation under sub-paragraph (iii) simply because the employer is also in breach of its obligation under subparagraph (i).
    3. As Mr Richard Copnall (appearing in this court, as below, for Mr Swain) submitted, it would be a perverse result if a conscientious employer who made a proper assessment under subparagraph (i) faced further obligations under subparagraphs (ii) and (iii), whereas an employer which flouted the first obligation would be excused from compliance with the other obligations. Mr Axon has not sought to argue against that.
    4. Mr Axon has sought to uphold the judgment by way of a respondent’s notice and a skeleton argument developing submissions on different lines. Mr Axon has contended that obligations imposed by or under the Framework Directive are not invariably absolute obligations. That is undoubtedly so: see in particular Art 5 paragraph 4 of the Framework Directive. But the language of Regulation 4 is, with some exceptions which I have already noted, unqualified. Art 6 of the Manual Handling Directive is even less qualified. As to Regulation 4 (1) (b) (iii), I would partly accept the point made in paragraph 2 of the respondent’s notice, that “appropriate” relates not only to the means of communication but also more generally to the practicalities of what is needed: for instance, it would not be appropriate for an employer to insist on burdening a canteen assistant who only moved kitchen equipment and food with technical information about how to strip down a conveyor. That may provide the answer to some of the hypothetical puzzles (about grand pianos loaded with the family silver, lawn mowers and stubborn drawers and bolts) with which Mr Axon beguiled the court. Fortunately, it is not necessary to decide those questions today. The fact that Mr Swain did not have any idea of the weight of the roller which he had to remove was directly relevant to his health and safety, as his accident showed.
    5. Mr Axon also relied in his skeleton argument on the presumption against criminal sanctions (see Section 33 (1) (c) of the Health and Safety at Work Act 1974) in the absence of fault. That argument deserves serious consideration but the existence of criminal sanctions cannot be decisive if the meaning of the regulations is plain: see the recent decision of this Court in Stark v Post Office (2nd March 2000) in which Waller LJ cited the observations of Lord Simmonds in LNER v Berriman [1946] AC 278,313.
    6. In paragraph 1 of his respondent’s notice and in his oral submissions Mr Axon has sought to develop the judge’s conjunctive construction of Regulation 4 (1). He has argued that an employer’s obligation under sub-paragraph (iii) arises in conjunction with the duties imposed by sub-paragraphs (i) and (ii), and that a duty to transmit information under sub-paragraph (iii) arises only if a proper assessment under sub-paragraph (i) would identify a risk of injury. In this case, he says, an assessment would not have identified the risk which caused Mr Swain’s injury. In support of this part of his argument Mr Axon has referred to the Court of Appeal decision in Hawkes v London Borough of Southwark and to the note in Redgrave which the judge quoted in his judgment. In that case the Court of Appeal, differing from the trial judge, held that a proper assessment of the task of the London borough’s carpenters in carrying unusually heavy doors up awkward staircases in flats without a lift would have shown it was a two-man job. No assessment had been made by the borough council. The Court of Appeal accepted that if an assessment had been made, and had shown it was a one-man job, there would have been no civil liability for bare breach of Regulation 4 (1) (b) (i), because the breach would not have been causative of the damage which had occurred.
    7. Mr Axon has sought to establish the present case as a parallel case. The judge made findings which seemed to support that view. The judge referred at the end of his judgment to what he called the total inability on the part of either employer or employee to measure the risk until the last bolt had been removed by which time it was too late.
    8. Mr Copnall submitted that there was no evidence to support those findings. It seems to me that there was precious little evidence to support them. In any event, I cannot accept the judge’s conclusion. On the known facts of this case Denso Marston Ltd had a health and safety officer. The employer knew who had manufactured and supplied the conveyor in question. Any proper assessment by or on behalf of the employer would have been a systematic assessment under the control of either an outside consultant or the health and safety officer (even if part of the task was delegated to a person who was an experienced employee). The assessment would have considered whether repairs and non-routine maintenance for specialised plant and machinery should be carried out by the employer’s staff, or by the manufacturer. The assessment would have had to consider what manual handling tasks were involved in repairs and non-routine maintenance. If no brochure or specification was available the assessment might have involved making inquiries of the manufacturer. If none of that had been possible (or none of that had disclosed the weight of the roller) then prudence would have dictated the assumption that it might be unexpectedly heavy. That assumption might have been communicated to those employees who needed the information under Regulation 4 (1) (b) (iii).
    9. For these reasons, despite Mr Axon’s very clear and concise submissions, I consider that the judge was wrong in his approach and in his conclusion and that his decision cannot be upheld on any of the alternative grounds put forward in this court. I would allow this appeal and enter judgment for the agreed sum of £2,040 with interest from the date of the accident.
    10. LORD JUSTICE STUART-SMITH: I agree.

Order: Appeal allowed with the costs below as agreed and those of appeal to be remitted for detailed assessment 

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