WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of HSE Guidance Documents - Carpenter -v- Kohler Mira Ltd
| Manual handling: Manual Handling Operations Regulations 1992 (as amended) L23 Guidance on Regulations: 2004 | |
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| Carpenter -v- Kohler Mira Ltd | Find Other Cases | |
In this County Court Judgment on the 7th August 2009, at paragraphs 48 & 49, Mr Recorder Hall states:
There was some discussion as to the highly important issue of the degree of force required to lift the door, because this is an ergonomic calculation to be undertaken by the experts. And [the Ergonomics Expert] on behalf of the defendant stated that the degree of force required was 2.4 kilograms, and that is the clear evidence of [the Ergonomics Expert instructed by the Defendant]. For her part, [the Ergonomics Expert instructed by the Claimant] stated in opening that the amount of effort required was in-between 2 to 2.6 kilograms, and [Counsel] fairly, on behalf of the claimant, accepts that 2.4 is the mean figure and the average figure in relation to that and for the purposes of this hearing I adopt that figure as being the correct figure of the application of the degree of force by Mrs Carpenter.
I note that [the Ergonomics Expert instructed by the Claimant] from time to time had considerable difficulty in accepting suggestions put to her on behalf of the defendant. Not only did she have a difficulty in accepting that 2.4 was the correct figure, and indeed in her evidence stated firmly that she did not know where that figure came from, which I conclude is a surprising assertion, in view of the fact that it is the average of the figures even quoted by herself, but she also subsequently found very great difficulty in accepting wording set out at page 55 at paragraph 12 of appendix 3 of the Manual Handling Guidance issued out by HSE, on which she relies, in relation to how it is that the maximum applicable weight should be calculated for women, having regard to the position of their arm at an extended placement. Paragraph 12 of appendix 3 of the HSE guidance states this, having regard to the diagrammatic figure which shows the maximum weights applicable under the guidance,
"If the lifter's hands enter more than one box during the operation then the smallest weight figure applies. An intermediate weight can be chosen if the hands are close to a boundary between boxes".
And at the hearing before me [the Ergonomics Expert instructed by the Claimant], whose argument is that the appropriate guidance to apply in relation to the facts and circumstances of this case is the HSE guidance, found great difficulty in accepting that having regard to the wording in paragraph 12 of the guidance upon which she relies indicated that an intermediate weight could be chosen if the hands were close to the boundary between the boxes.
Then, at paragraphs 53 to 62, Mr Recorder Hall states:
Now the issue in this case is whether or not the defendants ought to have foreseen the risk of injury to the complainant. And for the complainant [the Ergonomics Expert] states firmly that the appropriate guidance to be applied is the HSE guidance relating to the Manual Handling Operations Regulations of 1992, and she says so on this basis, that there is no guidance relating to one-handed lifting, that the nearest possible guidance that she could possibly identify is that in relation to the lifting by two hands in relation to manual handling. Now for the claimant it is accepted that the Manual Handling Operations Regulations of 1992 are not applicable because the load in this case, namely the door, was not a discrete movable object.
However, it is accepted on behalf of the defendant that there is scant guidance given to employers as to the manner in which a door of this nature should be lifted, and the guidance relied on by the defendant is that which is contained in a book, the author of which is Mittal, which does contain guidance relating to lifting by one arm. And the dispute between the experts in large measure is which guidance is appropriate. [The Ergonomics Expert instructed by the Claimant] argues that Mittal is not the appropriate guidance, that Mittal, which is an American publication, shows figures which cannot be substantiated in relation, for example, to the maximum load that can be lifted by two women, and for example in relation to the percentile height taken by Mittal as a yardstick for the purposes of reaching an appropriate figure.
Mittal is set out in the bundle before me and the relevant section is shown at page 278, which deals with the maximum weight which can be lifted up vertically and infrequently on a one-handed lifting operation. The guidance does say that whenever loads are lifted using only one hand the stronger hand should be used, and in relation to this Mrs Carpenter is right-handed and not left-handed; accordingly she was not using her stronger hand or her dominant arm for the purposes of lifting the load. What Mittal says on page 71 is this,
"Given how the loads are generally moved in the vertical plain, we recommend that the maximum weight that males can lift infrequently with their stronger hand while standing should not exceed 9 kilograms, for the sitting posture the maximum load that males should be permitted to lift should not exceed 8. For females the maximum permissible weight for one-handed infrequent lifting should not exceed 6 kilograms."
And at paragraph 5.1.2 of his written report, [the Ergonomics Expert instructed by the Defendant], sets out that one ergonomics rule of thumb is that infrequent operations should not exceed half of a person's maximum force and for that frequent operations the figure should not exceed a third of this value. And then he misquotes the data, he refers to 9 kilograms as opposed to 6 kilograms. He accepted in his evidence without hesitation that he had made an error and the figure should have read 6 kilograms and so I shall read his paragraph 5.1.2 on the basis of 6 kilograms and not 9 kilograms,
"The above 6 kilograms is likely to reflect the safe value for occasional use and hence a reduction of approximately 40% would convert a safe occasional figure to that considered appropriate for frequent force applications. In my opinion the operation of this door is not repetitive in the sense that ergonomists frequently refer to, but it is not infrequent either. However, even if the full 40% reduction was applied to the 6 kilogram figure by Mittal et ai, then the safe lifting figure would be 3.6 kilograms. This is approximately twice the measured force of an average 2.34 kilogram, therefore in my opinion I do not think that lifting this door at the frequency as stated would produce a foreseeable risk of musculoskeletal disorder."
[The Ergonomics Expert instructed by the Claimant], as I have indicated, criticises this use of Mittal because, it is said on behalf of the complainant, that Mittal gives rise to errant calculations and figures which way exceed that which would be sensibly accepted and in giving his evidence [the Ergonomics Expert instructed by the Defendant] accepted that certain of the figures utilised by Mittal are high. However, his argument before me is that he has tried to find a sensible manner of assessing the weight that should be lifted, or the force that should be applied by Mrs Carpenter, given the absence of any direct and directly applicable guidance to this routine, and certainly the absence of any directly applicable guidance issued out by HSE. Accordingly, his case is that he has sought to net the degree of frequency with which Mrs Carpenter was lifting this unit and sought to apply sensible data and indeed in relation to Mittal the only data relating to the lifting by one hand that is appropriate.
For the complainant it is argued that doubt must be cast on the Mittal figures, not only because of the unreliability of certain of the extreme figures used by Mittal but also because, for example, in Mittal reference is made to use of the dominant arm and that in this case Mrs Carpenter was not using her dominant arm.
In relation to the preferred guidance of [the Ergonomics Expert instructed by the Claimant], what she says is this, and [the Ergonomics Expert instructed by the Claimant] was adamant that this was the case, that the only appropriate way to proceed in applying guidance was to apply the guidance set out in the HSE Manual Handling Guidance and as shown on page 55. And she relies very clearly on that guidance. As I have already indicated, the guidance shows by means of diagram the appropriate weights to be applied in terms of force of lifting by way of maxima in accordance with the position at which the arm is held from the body. If the arm is held fully extended the weights are proportionately reduced; if the arm is held higher than shoulder height the weights are proportionately reduced. And as I have already indicated, her evidence is that if the arm is protruded beyond a position of the shoulder arm being held away from the body, then automatically the appropriate maximum weight is that which is contained in the figure showing the arm fully extended. And [the Ergonomics Expert instructed by the Claimant] appeared unwilling to accept that it would be appropriate in this case in any way to arrive at a maximum figure by taking an average of the top four boxes of the arm held parallel with the floor or above. [The Ergonomics Expert instructed by the Defendant] had concluded that the appropriate way forward by approaching the issue in a commonsense manner, as he put it, was to take an average figure, which would give rise to a maximum force weight of 7.5 kilograms, but [the Ergonomics Expert instructed by the Claimant] was not able to proceed with accepting such proposition and argued that the appropriate maximum force weight was 3 kilograms, as shown in the position in the diagram on page 55 of the HSE guideline, of the arm being held fully extended above shoulder height.
[The Ergonomics Expert instructed by the Claimant] accepted, somewhat grudgingly, that there was no directly applicable material by way of guidance, or published guidance, except Mittal, in relation to single-handed operations and the issue for me is to consider whether or not I should apply the guidance suggested by [the Ergonomics Expert instructed by the Claimant], or whether I should accept the evidence of [the Ergonomics Expert instructed by the Defendant], which is based, I would conclude, on a pragmatic approach to the issues raised in this case, coupled with utilisation of Mittal but subject to a significant reduction upon account of the frequency with which Mrs Carpenter was undertaking this operation.
I prefer the evidence of [the Ergonomics Expert instructed by the Defendant] in relation to this issue. It seems to me that his evidence was given in a sensible manner; he was prepared to accept limitations to his evidence. [The Ergonomics Expert instructed by the Claimant], on the other hand, was not prepared to accept any qualification to her evidence and whatever the position may be in relation to [her] standpoint, it remains to be the case that the HSE guidelines do not relate to single-handed operations but to double-handed operations and that the only guidance published is that contained in Mittal.
I conclude and find that [the Ergonomics Expert instructed by the Defendant] has made significant and sensible adjustment to the weights calculated by him, having regard to the figures set out in Mittal which I have quoted and as referred to in paragraph 5.1.2 of his report, and I accept for the purposes of my judgment that his evidence, namely that 3.6 kilograms is the safe lifting figure to be applied, is the evidence which I accept and the evidence which is to be preferred. It follows that 2.4 kilograms being the amount of force to be applied by way of average by Mrs Carpenter was well within the limits as set out on Mittal and well within those limits that I found would be the safe lifting figure for the purposes of this claim.
Even if it were the case that [the Ergonomics Expert instructed by the Claimant] were correct in arguing that the appropriate guidance was the HSE guidance, by reference to my conclusion that the appropriate average figure would be 7.5 kilograms for the purposes of the safe lifting figure, it is also the case that the lifting figure applied, the force applied by Mrs Carpenter, was clearly well within those limits as set out in the HSE guidelines. Furthermore, as I have already indicated, I do not accept for the purposes of this claim that Mrs Carpenter was lifting her arm above shoulder height as argued by [the Ergonomics Expert instructed by the Claimant].
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Last updated: 14/05/2013