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 EWCA Civ 672, Court of Appeal - Bella Webb
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Even though an employer had breached a duty owed to an employee by not providing continuing or refresher training on how best to lift in order to reduce the risk of injury, causation had not been established because there was no basis for finding that the employee's injuries had been caused by lifting.
The appellant hotelier (H) appealed against a decision that it had breached a duty owed to the respondent chambermaid (C), as her employer, under the Manual Handling Operations Regulations 1992 reg.4(1)(b)(ii).
C's role entailed moving beds so that she could vacuum underneath. On commencement of her employment with H, C had attended a training course which had included a manual handling demonstration of how to "lift" in the conventional manner. One day, when C pulled out a bed, she sustained a soft tissue injury to her left shoulder and jarred her neck. The judge found that the Regulations applied, and that although C had received adequate initial training, she had not received continuing or refresher training as she should have done, and that her accident had been caused by the lack of that training. The judge found that C had been 35 per cent contributory negligent.
H submitted that the judge (1) erred in saying that the lack of continuing or refresher training constituted a breach of reg.4(1)(b)(ii), and that he had applied too strict a test when considering whether H "should" have provided such training or whether regular training was "necessary"; (2) applied the wrong test for causation, and that there was no basis for him finding that the lack of continuing or refresher training caused C's injury.
HELD: (1) Whilst it was true that the test under reg.4(1)(b)(ii) was of reasonable practicability and not strict liability, there was no evidence that the judge had misdirected himself as to the correct test. The judge's choice of wording was a proper and acceptable way of saying that continuing or refresher training was an appropriate step in reducing the risk of injury to the lowest level reasonably practicable. Provision of such training was undeniably reasonably practicable, being cheap and easy, and it was obvious that no alternative conclusion was possible. (2) The correct test for causation was simple and purely factual, namely whether H's breach of duty constituted a cause of C's injury. The judge's formulation of that test was erroneous at least once in his judgment, and it appeared that his formulation of the tests for breach of duty and for causation had been inadvertently inverted. A critical question in the case was whether a reminder of the well-known lifting technique in the continuing or refresher training would have prevented C's injury; if C had lifted the bed then there would be a clear basis to say that a reminder of the appropriate lifting technique would have helped prevent the injury. In giving evidence, C had said that she had not lifted the bed, but in the judge's judgment he had erred in recording that C had changed her mind in the course of the hearing to say that she had lifted the bed. That recital of C's evidence was erroneous. If there had been lifting, a judge would have been entitled to say that a lifting injury would have been prevented by C using a different lifting technique, but there had been no medical evidence on whether use of the well-known technique would have prevented an injury when C was rolling the bed rather than lifting it. That gap in the medical evidence had been filled by the judge's finding that C had lifted the bed, which in turn brought causation into play, but there was no basis for him finding that C had lifted the bed.