WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of HSE Guidance Documents - Rietzler & Sanderson -v- Hampshire County Council
| Upper Limb Disorders in the workplace HSG60(rev) 2002 | |
|---|---|
| Rietzler & Sanderson -v- Hampshire County Council | Find Other Cases | |
In this County Court Judgment on the 6th July 2010, starting at paragraph 41, HH Judge Iain Hughes QC says:
As the trial had progressed, [Counsel for the claimants] produced for cross-examination purposes various extracts from guidance published by the Health & Safety Executive: "Upper Limb Disorders in the Workplace" ("the H&SE guidance"). This was first published in 1990 and the second edition was published in 2002. It was intended as guidance for the general public:
"This guidance is issued by the Health and Safety Executive. Following the guidance is not compulsory and you are free to take other action. But if you do follow the guidance you will normally be doing enough to comply with the law."
Photocopied extracts from the H&SE guidance were produced piecemeal and even at the end of the trial the document remained incomplete. No reference had been made to this guidance in any of the statements of case. It was not referred to by any of the lay witnesses in their written evidence. None of the expert witnesses made reference to the guidance in the body of their various reports. The ergonomists prepared two joint statements, on 3rd and 12th February 2010. No reference was made to this guidance in either joint statement. [Counsel for the claimants] made no reference to the guidance in either his oral or written openings.
Indeed, prior to [Counsel for the claimants]'s cross-examination of certain witnesses, the only reference in the entire case to the H&SE guidance was buried in Annexe 4, "Relevant Publications", to the report dated 2nd October 2009 by ...... the expert ergonomist retained by the claimants. His passing reference to the guidance produced during the trial by [Counsel for the claimants] was in the following terms, without any comment or analysis:
"The HSE issued a second, completely revised, edition of its major generic guidance, HSG(60), re-titled "Upper Limb Disorders in the Workplace" in February 2002."
In paragraphs 174 - 178, HH Judge Iain Hughes QC says:
I have described above the circumstances in which elements of this guide came to be introduced, part by part, by [Counsel for the claimants] during the course of the hearing.
It would be wrong, as a matter of principle, to make findings to the effect that the defendant was negligent in failing to follow aspects of the guide when the same was not explicitly pleaded as part of the claimants' case, when the same was not mentioned by the claimants or by any of their witnesses in their statements, when the experts did not discuss the same and when it has, in reality, been adopted by the claimants as an alternative when their pleaded case collapsed.
[Counsel for the claimants] submitted in closing that "there was no evidence any of the defendant's witnesses were aware of the relevant H&SE guidance." That is unsurprising in circumstances when it only became part of the claimants' case, almost imperceptibly at first, during cross-examination. Codes of Practice certainly existed, see paragraphs 24 and 65 above. It is not the fault of the defendant that they were not introduced in evidence.
In any event, the H&SE guidance does not apply to this case because neither claimant was employed to open and close the doors to the sluice rooms. That operation was merely an incident to their work and moreover one that could not possibly be regarded as so repetitive as to fall within the common sense ambit of the guidance. Dr Armstrong conceded as much when he gave evidence. The varied work undertaken by the claimants during their shifts fell well outside the criteria discussed in the guidance as indicating that a risk assessment might be appropriate.
Opening doors does not require training and there is no credible evidence that using such doors created a foreseeable risk of injury.
V1.01
| Work Related Upper Limb Disorders: A Guide to Prevention HSG60 1990 | |
|---|---|
| Rietzler & Sanderson -v- Hampshire County Council | Find Other Cases | |
In this County Court Judgment on the 6th July 2010, starting at paragraph 41, HH Judge Iain Hughes QC says:
As the trial had progressed, [Counsel for the claimants] produced for cross-examination purposes various extracts from guidance published by the Health & Safety Executive: "Upper Limb Disorders in the Workplace" ("the H&SE guidance"). This was first published in 1990 and the second edition was published in 2002. It was intended as guidance for the general public:
"This guidance is issued by the Health and Safety Executive. Following the guidance is not compulsory and you are free to take other action. But if you do follow the guidance you will normally be doing enough to comply with the law."
Photocopied extracts from the H&SE guidance were produced piecemeal and even at the end of the trial the document remained incomplete. No reference had been made to this guidance in any of the statements of case. It was not referred to by any of the lay witnesses in their written evidence. None of the expert witnesses made reference to the guidance in the body of their various reports. The ergonomists prepared two joint statements, on 3rd and 12th February 2010. No reference was made to this guidance in either joint statement. [Counsel for the claimants] made no reference to the guidance in either his oral or written openings.
Indeed, prior to [Counsel for the claimants]'s cross-examination of certain witnesses, the only reference in the entire case to the H&SE guidance was buried in Annexe 4, "Relevant Publications", to the report dated 2nd October 2009 by ...... the expert ergonomist retained by the claimants. His passing reference to the guidance produced during the trial by [Counsel for the claimants] was in the following terms, without any comment or analysis:
"The HSE issued a second, completely revised, edition of its major generic guidance, HSG(60), re-titled "Upper Limb Disorders in the Workplace" in February 2002."
In paragraphs 174 - 178, HH Judge Iain Hughes QC says:
I have described above the circumstances in which elements of this guide came to be introduced, part by part, by [Counsel for the claimants] during the course of the hearing.
It would be wrong, as a matter of principle, to make findings to the effect that the defendant was negligent in failing to follow aspects of the guide when the same was not explicitly pleaded as part of the claimants' case, when the same was not mentioned by the claimants or by any of their witnesses in their statements, when the experts did not discuss the same and when it has, in reality, been adopted by the claimants as an alternative when their pleaded case collapsed.
[Counsel for the claimants] submitted in closing that "there was no evidence any of the defendant's witnesses were aware of the relevant H&SE guidance." That is unsurprising in circumstances when it only became part of the claimants' case, almost imperceptibly at first, during cross-examination. Codes of Practice certainly existed, see paragraphs 24 and 65 above. It is not the fault of the defendant that they were not introduced in evidence.
In any event, the H&SE guidance does not apply to this case because neither claimant was employed to open and close the doors to the sluice rooms. That operation was merely an incident to their work and moreover one that could not possibly be regarded as so repetitive as to fall within the common sense ambit of the guidance. Dr Armstrong conceded as much when he gave evidence. The varied work undertaken by the claimants during their shifts fell well outside the criteria discussed in the guidance as indicating that a risk assessment might be appropriate.
Opening doors does not require training and there is no credible evidence that using such doors created a foreseeable risk of injury.
V1.01
Last updated: 14/05/2013