Sir Digby Jones, director general of the Confederation of British Industry, recently warned that the nation's economic prosperity was under threat through a failure to teach children about risk. Instead of being encouraged to embrace risk-taking, there was too great an emphasis on individual rights with a view to claiming compensation. In practice, courts have tended to adopt a common-sense approach to risk, though increasingly employers are having to show that they have done more than just pay lip service to the assessment of risk in the workplace.
Crucially, since 27 October 2003, by virtue of the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003, employees have been entitled to bring civil proceedings against employers whose breach of the regulations causes injury.
Despite the potential for risk assessments to help minimise work-related accidents, it is not uncommon for risk assessments to be ignored or to be deficient in some way. Yet few organisations are unaffected, as Regulation 3(6) requires every employer with five or more employees to record the significant findings of the assessment and any group of his employees identified by it as being especially at risk.
Research commissioned by the Health and Safety Executive in 2003 into good practice and failings associated with risk assessments in the workplace identified the following common errors:
- a failure to identify all the hazards associated with a particular activity
- a failure to fully consider all possible outcomes
- an assessment carried out to justify a decision already made.
The requirement to undertake a risk assessment is an integral part of the 'six pack' regulations introduced under the Act, and is particularly central to the Provision and Use of Work Equipment Regulations 1992, the Personal Protective Equipment at Work Regulations 1992, and the Manual Handling Operations Regulations 1992.
Causation
The failure to assess risk will not in itself enable a claim for damages to succeed. It must also be causative of injury. In Griffith v Vauxhall Motors Limited [2003], the claimant injured his hand while using a Stanley gun to fix a bolt to the body of a motor vehicle. The gun was prone to kickbacks, or sudden upward movements, which the employer knew about.
Despite this, a risk assessment was not carried out. Although a post-accident investigation by the manufacturers failed to identify the root cause of the problem, the trial judge held that the absence of a risk assessment was causative of the accident. A risk assessment would have enabled the employer to warn its workforce to grip the tool more tightly.
On appeal, the employer argued that the requirement to grip the tool firmly should have been self-evident to the claimant. The Court of Appeal rejected this argument and found for the claimant. A reduction of 50% was, however, made on account of the claimant's contributory negligence.
Although the claimant's accident preceded the introduction of civil liability for breach of the Management Regulations, the absence of a risk assessment was held to be negligence. Lord Justice Clarke re-affirmed the function of a risk assessment in the following terms: "It helps to identify the standard of care to be expected of a reasonable employer".
An employer will not, however, be liable for injury where a claimant has followed an abnormal procedure. In Bennetts v Ministry of Defence [2004], the claimant worked in a mail room and injured her back while lifting a mailbag. She had not received any training.
It is well established that Regulation 4 of the Manual Handling Operations Regulations 1992 requires an employer to avoid the need for employees to undertake manual handling operations at work. The normal procedure for emptying mailbags in this case involved emptying the contents of the bags onto the floor in order to sort through them. On this occasion, the claimant had deviated from the norm when the contents of the mailbag became stuck. The claimant chose to lift the bag on to a trolley. In doing so, it caught the underside of the trolley top. The claimant was injured as she attempted to free the bag from the trolley.
Prior to the accident, the employer had carried out an assessment pursuant to Regulation 4, but concluded that there was no foreseeable risk of injury.
Accepting the findings of the risk assessment, the trial judge gave judgment for the employer, on the basis that if the claimant had followed the normal procedure the accident would not have occurred.
The claimant appealed on the grounds that the trial judge had not taken into account the contents of the post-accident risk assessment, which identified a risk of injury from stooping and carrying. It was contended that the claimant should have been given training to enable her to deal with an unusual scenario.
The Court of Appeal stated that it was not foreseeable that the mailbag would snag. Moreover, since neither activity identified in the post-accident risk assessment was relevant to the mechanism of injury, the accident would not have been avoided by any changes in procedure flowing from the risk assessment. Lord Justice Rix summarised the court's findings: "What happened in this case was not relevant to any risk in the handling operations, and even if there had been a need for further assessments and further training and procedures, they were matters which would not have prevented the injury. In effect, even if there had been a breach of duty under the regulations, that breach would not have caused this injury."
There is no simple formula to sum up the approach that the courts take to risk. Since the introduction of civil liability for breach of the Management Regulations there is, however, some expectation that employers will take risk assessments in the workplace more seriously.
- Ingrid Eisen is a solicitor in the personal injury team at IBB solicitors, Tel: 01895 207985, E-mail ingrid.eisen@ibblaw.co.uk
