WRULD Claims heard in England, Scotland and Wales

References to and/or interpretations of HSE Guidance Documents - Hughes -v- Grampian Country Food Group Ltd

Manual handling: Manual Handling Operations Regulations 1992 L23 Guidance on Regulations: Version-undefined
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In the Judgment at first instance of the Outer House, Court of Session on the 18th January 2006, at paragraph 25, Lord Menzies says:

In addressing the central question as to whether this was one manual handling operation, counsel submitted that the alternative was that the pursuer was involved in two separate manual handling operations - one in taking the carcass from the upper conveyor to the table and the second taking the carcass from the table to the lower belt. He described this as absurd, and said that it was obvious from the video that there was only one relatively short movement involved. The part of the operation which caused injury to the pursuer, namely the repetitive movement of her hands, wrists and fingers, was done during the transporting and supporting stage. The Regulations envisaged that this type of activity was to be covered - counsel referred me to the guidance on the Regulations at page 42, appendix 1 at paragraphs 6 to 7 where repetitive actions are expressly envisaged and relatively light weights are involved.

In paragraph 31, Lord Menzies says:

Counsel also referred me to the terms of the Council Directive of 29 May 1990, (90/269/EEC) and pointed out that this was concerned with the manual handling of loads. He questioned whether the trussing of a chicken carcass could properly be categorised as the manual handling of a load, and contrasted this with the circumstances of King v RCO Support Services Ltd in which the claimant was spreading grit over ice in the yard of a bus station, using a sack barrow and a shovel to distribute the grit. Without wishing to put too much emphasis on the point, he observed that in the title to the Directive, the words "manual handling of loads" are immediately followed by the words "where there is a risk particularly of back injury to workers", and that in Article 2 again the transporting or supporting of a load is qualified by the words "which ... involves a risk particularly of back injury to workers". Counsel did not submit that the scope of the Directive was limited to back injuries, but he suggested that this might be relevant when assessing what type of operations the Directive was aimed at. He also referred me to the guidance on the 1992 Regulations issued by the Health and Safety Executive, and in particular to paragraphs 15 to 18 thereof. He concluded his submissions on the question of whether the pursuer was engaged in a manual handling operation by formulating three propositions. First, the question is one which should be answered on the basis of common sense and plain language, and to suggest that trussing a chicken is a manual handling operation offends both of these requirements. Second, the task itself must involve the support or transport of a load; it is not legitimate to look to anything other than the task itself. There is no support for the approach that one can take into account the context in which the task was performed, and argue that because a load was transported or supported before and after the task, therefore the task was a manual handling operation. And third, the risk of injury identified in this case was a risk arising from manipulation, not a risk arising from the bearing of a load, which supports the argument that the task being undertaken was a task of manipulation, not of transporting or supporting a load.

There are references to the HSE's guidance in the parts of the Judgment of the First Division, Inner House, Court of Session on the 18th May 2007, in which The Lord President summaries the submissions made on behalf of the parties. At paragraph 13, summarising the submissions made on behalf of the Pursuer and Reclaimer, The Lord President says:

[It was submitted that] In King v Carron Phoenix Limited 1999 Rep LR 51 (which the Lord Ordinary had followed) Lord Kingarth had given an unduly restrictive interpretation to the Regulations. Guidance on Regulations issued by the Health and Safety Executive (which indicated that an implement, tool or machine, such as a chainsaw, fire hose or breathing apparatus was not considered to be a load when in use for its intended purpose) was not authoritative. Reference was made to R v Wandsworth London Borough Council [1996] 3 All ER 913. The Guidance was itself internally inconsistent; reference was made to paragraphs 24 and 26. There was no warrant for construing "load" or "manual handling operations" with reference to the purpose of the activity. Lady Smith had been in error in McFarlane v Ferguson Shipbuilders Limited 2004 Rep LR 78 where she had relied upon the purpose for which the grinder was being used. In Mitchell v Inverclyde District Council (31 July 1997, unreported) Lord Cameron of Lochbroom had held that the Regulations did not apply to a grass cutting operation with a rotary mower. But the ratio of that decision was not clear. The running of a rotary motor over a surface did involve "moving a load" and was accordingly within the scope of the Regulations. Lord Brodie in McFarlane v Corus Construction and Industrial 2006 SLT 375 at para. [51] had, in relation to the moving of a barrowbuff across a surface to grind out defects, followed Mitchell, King and McFarlane. He had been in error in doing so.

At paragraph 14, summarising the submissions made on behalf of the Defenders and Respondents, The Lord President says:

[It was submitted that] The Guidance Note issued by the Health & Safety Executive had no legal status. King v Carron Phoenix Limited and McFarlane v Ferguson Shipbuilders Limited had been correctly decided.

At paragraph 21 of the Judgment of the First Division, Inner House, Court of Session on the 18th May 2007, The Lord President says:

Accordingly, although it may be difficult to define with exactness the scope of the Regulations, in any particular case their applicability or otherwise must be determined as a practical exercise by the use of commonsense. It may be that in some circumstances the purpose for which the item in question is being used may be of some assistance (see Lady Smith's approach in McFarlane v Ferguson Shipbuilders Limited) - though I would not regard the purpose of the activity as a conclusive test. I agree with Lord McEwan in McIntosh v City of Edinburgh Council that a heavy object may be a load, notwithstanding that at it may also be a tool. In so far as the Guidance issued by the Health and Safety Executive suggests the contrary, I have serious doubts as to its soundness; but it is unnecessary for present purposes to express any concluded view on that matter. I agree with the conclusions reached by Lord Cameron of Lochbroom in Mitchell v Inverclyde District Council and by Lord Kingarth in King v Carron Phoenix Limited in the circumstances of these respective cases.

In the Judgment of the First Division, Inner House, Court of Session on the 18th May 2007, at paragraph 35, Lord Eassie says:

I would add that, in agreement with your Lordship, I think that the purpose for which the load is being transported or supported may sometimes be a further factor to consider. However, I also entertain reservations as to the soundness of the proposition advanced in the HSE Guidance that using an object as a tool, for its intended purpose as a tool, does not constitute an activity within the scope of the Regulations. However, since the present case does not involve any contention that the reclaimer was using a tool I would prefer to reserve my ultimate conclusions on that issue, if only since there may be questions as to the relationship and interlinking of the Regulations with other regulations, principally the Provision and Use of Work Equipment Regulations 1998 (S.I. 1998/2306) upon which we were, quite understandably, not fully addressed.

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Last updated: 14/05/2013