Commentary on how the Courts have interpreted the Manual Handling Operations Regulations and associated guidance in Judgments in personal injury claims for WRULDs
The views expressed in this commentary are those of the webmaster alone and do not necessarily reflect HSE policy. This site does not provide legal advice or seek to interpret the civil or criminal law. Visitors are strongly advised to consult a suitably qualified specialist for professional advice.
Introduction
1. The Manual Handling Operations Regulations 1992, (View Statutory Instrument) which came into force on the 1st January 1993, were amended by the Health and Safety (Miscellaneous Amendments) Regulations 2002, (View Statutory Instrument) which came into force on the 17th September 2002.
2. Guidance on the Manual Handling Operations Regulations (hereafter referred to as the MHO Regulations) was first published by the HSE in November 1992: Manual handling: Manual Handling Operations Regulations 1992. L23. This guidance was revised in 1998. After the MHO Regulations were amended by the Health and Safety (Miscellaneous Amendments) Regulations 2002, revised guidance was published by the HSE in March 2004: Manual handling. Manual Handling Operations Regulations 1992 (as amended). L23 (Download a free copy of the latest version of L23 from the HSE's web site)
3. Other guidance on manual handling published by the HSE includes:
Solutions you can handle 1994 (free download of latest version from HSE's web site)
Getting to grips with manual handling 2004 (free download of latest version from HSE's web site)
4. In addition to the guidance documents noted above, over the years there has been a plethora of what might be termed sector-specific guidance on manual handling, the latest versions of which can be found on the pages of the HSE's web site that deal with specific sectors.
Interpretations
5. It is important to note that this commentary focuses on how the Courts have interpreted the MHO Regulations and associated guidance in Judgments in personal injury claims for WRULDs. There are many other types of injury that can arise from manual handling, the obvious example being back injuries.6. It seems likely that Judgments in claims for other types of injury have probably given rise to more examples of how the Courts have interpreted the MHO Regulations and associated guidance than Judgments in claims for WRULDs. No statistics are kept on such matters, but it is clear that most of the Judgments that are cited in claims for WRULDs as precedents for how the MHO Regulations have been interpreted are Judgments in claims for other than WRULDs.
7. The latest version of the guidance on the MHO Regulations alludes in several places to recent case law (but does not provide a full reference). For example, in paragraph 32: "Recent case law suggests than an employee whose job may involve lifting people (for example, ambulance personnel) may be asked to accept a greater risk of injury than someone who is employed to move inanimate objects". This would appear to be a reference to the decision of the Court of Appeal in the case of Sussex Ambulance NHS Trust -v- Anthony Henry King (full text of the Judgment available free on BAILLI)
8. This was a personal injury claim in which Mr King alleged he had suffered jarring injuries to his thumb, back and knees while taking a patient in a carry chair down narrow and steep stairs, with a colleague. In the opening paragraph of the Judgment of the Court of Appeal, the case is said to raise the difficulty of reconciling the ambulance service's duties towards a patient with their duties towards their employees.
9. It is clear from examining the case papers in personal injury claims for WRULDs, i.e. prior to a case reaching Court, that there are considerable differences of opinion, in both lay and legal circles, about the scope and interpretation of the MHO Regulations.
The scope of the MHO Regulations
10. It is quite common to find cases in which a claim is based, at least in part, upon alleged breaches of the MHO Regulations, even though most lay observers would probably consider the MHO Regulations irrelevant to the type of work implicated in the claim. For example, breaches of the MHO Regulations were alleged, but not pursued at trial, in: Goodwin (now Slevin) - v - Bennetts UK Ltd and Fifield - v - Denton Hall / Denton Wilde Sapte both of which were claims for WRULDs associated with DSE use.
11. Perhaps more understandable are the cases in which alleged breaches of the MHO Regulations may appear to be of doubtful relevance from a lay perspective, but which nevertheless raise interesting (essentially legal) questions about the circumstances in which the MHO Regulations apply, such as whether some activity is a 'manual handling operation' within the meaning of the MHO Regulations or what constitutes a 'load' within the meaning of the Regulations.
12. If an activity is not a 'manual handling operation' within the meaning of the MHO Regulations, the Regulations do not apply, though the requirements of other Regulations such as the Management of Health and Safety at Work Regulations, the Workplace (Health, Safety and Welfare) Regulations and the Provision and Use of Work Equipment Regulations may still need to be considered.
13. In the case of Gissing - v - Walkers Smith Snack Foods Ltd in July 1999, for which no official transcript is available, the Judge evidently took the view that the MHO Regulations were neither aimed nor directed at packing packets of crisps into boxes at rate of 3,000 per hour.
14. In the County Court Judgment in October 1999 in Lisa Goldstraw - v - Lucas Rists Wiring Systems the Judge did not accept that the allegedly injurious work, which required numerous repetitive hand and wrist movements, came within the MHO Regulations, which he suggested were "directed to the risk of injury by weight".
15. In the case of Spencer - v - Boots the Chemist Ltd both the Judgment at first instance and the Judgment of the Court of Appeal in 2002 quote, without comment or dissent, from a report of the jointly instructed Ergonomics Expert in which he suggested that the MHO Regulations were primarily aimed at reducing back injuries from handling significant loads and were not intended to address the type of task implicated in the claim: moving 600g bottles, up to twice a minute, to just above shoulder level.
16. In the case of Carcary - v - RVP Foods Ltd in December 2003, for which no official transcript is available, the Judge evidently took the view that the Claimant's work in a factory canteen involved performing tasks that were very similar to ordinary everyday household chores, which presented no real risk of injury, and that the MHO Regulations did not apply. In a similar County Court claim Wilson v Baxter Storey Ltd, which is referred to in the Judgment in April 2012 as "a manual handling case", it was not disputed that the Manual Handling Operations Regulations applied. The Judge found that handling mixing bowls while preparing salads, cakes and other baked food was "such a mundane task involving no foreseeable possibility of injury" that the requirement for a risk assessment did not arise.
17. In the case of Lambeth - v - Bournemouth & Swanage Motor Road & Ferry Co in March 2004, in which the claimant alleged he had suffered exacerbation of osteoarthritis in his left shoulder, neck and spine from collecting toll money and tickets from motorists, the County Court Judge found that the MHO Regulations did not apply to the action.
18. While none of these Judgments explicitly addressed why the MHO Regulations did not apply, it seems reasonable to suggest that what they mostly had in common was that the allegedly injurious activity involved the repetitive or highly repetitive handling of light or relatively light loads. However, in the case of Rochester - v - Techfil Ltd, which was heard in the County Court in July 2000, the Defendant was found to have been in breach of regulation 4(1)(b)(ii) of the MHO Regulations in failing to take appropriate steps to reduce the risk of injury arising from production line work that involved tightening caps on plastic bottles at a rate of 16 or 17 per hour.
19. In the case of Rance - v - Lomax Sayers Ltd, which was heard in the County Court in April 2001, the repetitive handling of about 1,000 pot plants at day, a rate of about 3 per minute, was considered to be a breach of regulations 4(1)(b)(i) and 4(1)(b)(ii) of the MHO Regulations. The Judgment explicitly states: "Even with the pot and compost in it, they were not heavy and their weight is not a relevant issue".
20. In a similar vein, in the County Court Judgment in December 2004 in the case of Barlow - v - Churchill China (UK) Ltd the Defendant was found to have been in breach of regulation 4(1) of the MHO Regulations in respect of repetitively packing three-piece sets of ware, comprising a teacup, a saucer and a plate, which weighed in total just over 1kg. The task is described in the Judgment as repetitious and physically demanding, but clearly did not involve handling any significant weight.
21. It is interesting to note that in all the cases referred to above in which, for one reason or another, the MHO Regulations were found not to apply, it was also found that the Defendant was not negligent and that the claim failed, while in all the cases referred to above in which the MHO Regulations were found to apply, it was also found that the Defendant was negligent and that the claim succeeded. This could be interpreted as suggesting that the MHO Regulations have little or no influence on whether or not a personal injury claim for a WRULD is successful.
22. Insofar as it is possible to determine from the last three Judgments referred to above, i.e. those in which there was found to be a breach of the MHO Regulations, it appears questionable whether the tasks implicated in those cases would have exceeded the guidelines figures in the risk filter that appears in the guidance on the MHO Regulations.
23. It can be argued that Schedule 1 to the MHO Regulations, which is headed 'Factors to which the employer must have regard and questions he must consider when making an assessment of manual handling operations' and the thrust of the HSE's guidance on manual handling suggest that the MHO Regulations are primarily concerned with reducing the risk of a back injury. Thus, while the MHO Regulations may be applicable to the activities implicated in some personal injury claims for WRULDs they often do not function well in this context.
24. Anecdotal evidence suggests that the MHO Regulations are sometimes pleaded in personal injury claims for WRULDs because there are, currently, no health and safety regulations that explicitly address repetitive work. Whether there ever will be such regulations remains to be seen. (View commentary on possible new European Directive covering all musculoskeletal disorders on HSE's web site)
25. The absence of health and safety regulations that explicitly address repetitive work is alluded to in the Scottish case of Hughes -v- Grampian Country Food Group Ltd, which essentially turned on the issue of whether trussing the wings and legs of chicken carcasses using elastic strings was a manual handling operation within the meaning of the MHO Regulations. This is the most significant Judgment in a personal injury claim for a WRULD that has addressed the applicability of the MHO Regulations. The full text of the complex and lengthy Judgments in this case are available (free of charge) on the BAILII web site:
Judgment at first instance:
Judgment in the appeal:
26. In the hearing of the appeal in Hughes -v- Grampian Country Food Group Ltd in 2007, it was submitted that the MHO Regulations should be given a broad and purposive construction consistent with the objective of protecting employees from harm; the intention being to heighten the obligation on the employer beyond the duty at common law of reasonable care. It was argued that it would be bizarre if the trussing operation (which was conceded to give rise to a foreseeable risk of injury, which risk had been foreseen by the employers as giving rise to the risk of repetitive strain injury) was not covered by the MHO Regulations or by any other Regulations made in furtherance of the Directives. Reference is then made to a case that had been decided under the (now repealed) section 72 of the Factories Act 1961 and it is argued that it would be surprising if under the MHO Regulations a worker had less protection.
27. It was further submitted that in the definition of "manual handling operations" the words in parenthesis were expansive of the expression "transporting or supporting". Thus, the moving of any object manually would, if done by an employee, involve a manual handling operation. This would include a seamstress lifting and replacing a needle, a librarian turning the page of a book, an employee switching on or off an electrical switch. The risk arising, provided it was foreseeable, need not be one arising from the load. Thus, an employed seamstress, engaged in a manual handling operation by virtue of the lifting and replacing of her needle would have a remedy if she pricked her finger.
28. Although not explicitly mentioned in the Judgments in Hughes -v- Grampian Country Food Group Ltd, some support for these submissions can be found in the guidance on the use of the risk filter that appears in the guidance on the MHO Regulations, which suggests that "There is no threshold below which manual handling operations may be regarded as 'safe'." Many lay observers have long regarded this suggestion as absurd.
29. Their Lordships rejected the submissions made in Hughes -v- Grampian Country Food Group Ltd, suggesting they would lead to absurd results and that it would offend against commonsense to suppose that the framers of the MHO Regulations intended to bring within its scope activities that would appear to make virtually every human activity, other than the purely cerebral, a manual handling operation.
30. Their Lordships took the view that whether or not the MHO Regulations applied in any particular case "must be determined as a practical exercise by the use of commonsense" and suggested that the concept of 'load' should not be deprived of the ordinary notion of a burden of some significance. Their Lordships also expressed reservations about the proposition advanced in the HSE's guidance on the MHO Regulations that using a tool for its intended purpose does not constitute an activity within the scope of the Regulations.
31. However, some support for this proposition can be derived from another Scottish Judgment, in the case of McFarlane -v- Ferguson Shipbuilders Ltd in March 2004, in which the use of a grinding tool was alleged to have exacerbated a pre-existing tennis elbow. Lady Smith took the view that the MHO regulations did not apply in the circumstances of the case.
The much misunderstood 'risk filter'
32. It is clear from examining the case papers in personal injury claims for WRULDs, i.e. prior to a case reaching Court, that the risk filter that appears in the guidance on the MHO Regulations is frequently used in ways that were not intended and that in many cases the risk filter that appears in Upper Limb Disorders in the workplace HSG60(rev) 2002 would have been more applicable, if it had been available at the time.
33. The declared intention of the filter that appears in the guidance on the MHO Regulations is "to set out an approximate boundary within which the load is unlikely to create a risk of injury sufficient to warrant a detailed assessment". The diagram showing the guideline figures in the version of the filter published in November 1992 included the words "Note: No attempt should be made to interpret this diagram without first reading the accompanying text". Unfortunately, these cautionary words were omitted from the versions of the guidance published 1998 and 2004.
34. While the guideline figures are perhaps over-cautious, it can be argued that they are suitable for the purpose for which they are intended. However, this filter is sometimes erroneously interpreted as suggesting that handling more than the guideline weights gives rise to a significant risk of injury and/or that operatives should not handle more than the guideline weights, whereas the intended purpose of the filter is simply to assist in determining whether or not a detailed risk assessment might need to be undertaken.
35. The problems that undoubtedly exist with the (mis)use of the risk filter have not yet emerged in the Courts, at least not in any Judgment in a claim for a WRULD. However, there are a few Judgments that make reference to the risk filter.
36. In the case of Coles -v- Kemutec Powder Coatings Ltd in September 2008, the Judge accepted the argument of the Engineering Expert instructed by the Claimant that handling a large drill bit weighing 12.5kg gave rise to "a risk of injury in that it involved lifting a significant weight at a distance from the body which fell outside the guideline figures in the risk filter in the HSE's Guidance on the MHO Regulations" and that this was sufficient to sufficient to engage Regulation 4(1)(b) of the MHO Regulations.
37. In the case of Spencer - v - Boots the Chemist Ltd both the Judgment at first instance and the Judgment of the Court of Appeal in 2002 quote from a passage of the report of the jointly instructed Ergonomics Expert in which he refers to the risk filter in the guidance on the MHO Regulations. The jointly instructed Ergonomics Expert appears to have suggested not only that the guideline figures appear in the Regulations themselves, rather than in the guidance on the Regulations, but also that the pertinent guideline figure for two-handed activities can be extrapolated to a one-handed lift by halving the guideline figure.
38. While in the opinion of the jointly instructed Ergonomics Expert the MHO Regulations were not intended to address the sort of problems which arose in the case of Spencer -v- Boots the Chemist, and nothing of consequence appears to have turned on this interpretation of the use of the risk filter, it raises the question of whether the guideline figures for two-handed activities can legitimately be extrapolated to one-handed activities. This was one of the issues considered in the County Court Judgment in Carpenter v Kohler Mira Ltd in August 2009.
Conclusions
39. While in the case of Hughes -v- Grampian Country Food Group Ltd the Scottish court of appeal firmly rejected the notion that all human activities, other than the purely cerebral, should be considered manual handling operations, no clear picture emerges from the available Judgments in personal injury claims for WRULDs about the activities the Courts consider engage the MHO Regulations.
40. Their Lordships' suggestion that the concept of 'load' should not be deprived of the ordinary notion of a burden of some significance may assist in determining future claims. However, it appears likely that the question of whether the repetitive or highly repetitive handling of light or relatively light loads engage the MHO Regulations will continue to engage the Courts for some time to come - at least until there are health and safety regulations that explicitly address repetitive work, should any such regulations ever emerge.
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