WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of Health and Safety Regulations - Coles -v- Kemutec Powder Coatings Ltd
| Management of Health and Safety at Work Regulations 1992 | |
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| Coles -v- Kemutec Powder Coatings Ltd | Find Other Cases | |
In the Judgment on the 23rd September 2008, at paragraph 51, Mr Recorder Spink refers to the Management of Health and Safety at Work Regulations 1999:
The pleaded allegations under these Regulations were not pursued at the trial, and so I propose to say nothing further about them.
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| Provision and Use of Work Equipment Regulations 1998 | |
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| Coles -v- Kemutec Powder Coatings Ltd | Find Other Cases | |
In the Judgment on the 23rd September 2008, at paragraph 29, Mr Recorder Spink refers to the Provision and Use of Work Equipment Regulations:
The Defendant accepts that the hammer, the drill bit and the chuck are items of work equipment within the meaning of Regulation 2(1). However, it argues that no criticism is made in the expert evidence on behalf of the Claimant of the design, construction or use of these items so as to bring them within the many pleaded allegations of breach of these Regulations. As an observation that is correct. In closing, [Counsel] on behalf of the Claimant did not attempt to persuade me that a breach of these Regulations occurred and I therefore need say nothing more about these pleaded allegations.
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| Manual Handling Operations Regulations 1992 | |
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| Contextual Commentary | Coles -v- Kemutec Powder Coatings Ltd | Find Other Cases | |
In the Judgment on the 23rd September 2008, Mr Recorder Spink refers to the Manual Handling Operations Regulations, at paragraph 30:
The Manual Handling Operations Regulations 1992 ("the MHO Regulations") came into force on 1st January 1993 and thus did not cover the first 8 years or so but did cover the last 11 years or so of the Claimant's employment.
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| Manual Handling Operations Regulations 1992 | |
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| Regulation 2 | Contextual Commentary | Coles -v- Kemutec Powder Coatings Ltd | Find Other Cases |
In the Judgment on the 23rd September 2008, Mr Recorder Spink refers to the Manual Handling Operations Regulations, at paragraphs 31 to 34:
[Counsel] on behalf of the Claimant conceded in closing that the use by the Claimant of a hammer to remove the drill bits did not constitute a manual handling operation within the meaning of Regulation 2(1), which states: "Manual handling operations means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force". However, there remains an issue between the parties as to whether the insertion of the drill bits or chucks into the drill spindle constituted a manual handling operation.
The Defendant argues that it did not. I disagree. In my view, the pushing of the drill bits or chucks upwards into the drill collar is a task falling within the words in parenthesis in Regulation 2(1). For what it is worth, the publication by the HSE relied upon by the Defendant supports this construction by stating that "A load in this context must be a discrete movable object". This covers the drill bits and the chuck with the smaller drill bits already fitted whilst they are being lifted up and pushed into the spindle.
Thus, in my judgment, the insertion of the drill bits or chuck into the spindle did constitute a manual handling operation so as potentially to engage Regulation 4(1) of the MHO Regulations ..............
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| Manual Handling Operations Regulations 1992 | |
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| Regulation 4 | Contextual Commentary | Coles -v- Kemutec Powder Coatings Ltd | Find Other Cases |
In the Judgment on the 23rd September 2008, Mr Recorder Spink quotes regulation 4(1)(b) in full and then states, at paragraphs 35 to 43:
The question that arises is whether the task of inserting the drill bits or chuck into the drill spindle, which I have identified as constituting a manual handling operation, involved a risk of the Claimant being injured. As to this, the parties' respective cases were as follows.
The Claimant's case was that the insertion of the larger drill bits or the chuck plus smaller drill bits did involve a risk of injury. Reliance was placed upon the evidence of [the Engineering Expert instructed by those acting on behalf of the Claimant]. He accepted that this task involved no risk of a repetitive strain injury unless the frequency with which the drill bits or chuck were changed exceeded once every two minutes (30 times per hour), which I have found did not occur. Furthermore, he accepted that he would not associate the percussive aspects of this task with any risk of injury. However, looking at each insertion of the heavier drill bits as an individual manual handling operation, he concluded that, at least in the case of the 12.5kg largest bit and probably some of those slightly smaller than this in size, this operation 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 (HSE publication L23).
The relevant risk filter appears in Appendix 3 of this document at page 55. The boxes in the illustration on the left of Figure 23 show the guideline weights for lifting and lowering in the zone covered by each box. It can thus be seen that the maximum guideline weight for a man lifting above shoulder height is 10kg if the weight is held close to his body and 5kg if it is held further away from his body. [His] point was that the 12.5kg drill bit being lifted above shoulder height even close to the Claimant's body would exceed the guideline in the risk filter and would also do so if lifted above elbow height further away from the body. Logically, he said, the same would apply to some of the other heavier drill bits, at least if being lifted some distance away from the Claimant's body.
The Defendant's case was this task did not involve a risk of injury. [The Expert Ergonomist] called on behalf of the Defendant, rejected the assertion made by [the Engineering Expert instructed by those acting on behalf of the Claimant] that the risk filter guideline weights were exceeded.
On this issue, I accept the Claimant's case to an extent sufficient to engage Regulation 4(1)(b). In my judgment a careful consideration of the nature of the task involved and of the HSE Guidelines risk filter would or ought to have led to the conclusion that, at least in the case of any of the drill bits weighing 10kg or over and possibly some of those weighing nearly this, the guideline weights could be exceeded. In my view it is also a matter of common sense, given the weight of at least the heaviest drill bit and the need to lift it at arms length from the body, that the task might involve some risk of injury.
Mr Recorder Spink then says, at paragraphs 44 to 50:
That being so, and it being conceded by the Claimant that it would not have been reasonably practicable to have totally avoided the need for the Claimant to undertake this task whilst operating the radial drill, Regulation 4(l)(b) required an assessment of the risk involved in the task to be undertaken with a view to taking appropriate steps to reduce the risk of injury. [Counsel] on behalf of the Claimant identified in closing what such a risk assessment would have concluded and what steps would or should have been taken to reduce the risk of injury.
Based upon the evidence of [the Engineering Expert instructed by those acting on behalf of the Claimant], he said that the risk that would have been identified and which steps would or should have been taken to reduce would have been a risk of injury to the Claimant by reason of repeated and not infrequent lifting of heavier weights, i.e. not the risk of injury due to the repeated percussive effect arising during the insertion and removal process.
The steps that he submitted would or should have been taken at some point in time after January 1993 were to rotate the operation of the radial drill amongst three operatives, including the Claimant, so that the Claimant would have worked on the drill for, say 4 months and then had 8 months off, or for 2 weeks followed by 4 weeks off. I think that, in the end, the latter alternative appeared to [Counsel for the Claimant] to be the most practicable and I shall approach the Claimant's case on that basis.
As for whether, in fact, this would have been the outcome of a risk assessment that concluded that there was a risk of injury involved in lifting the heavier drill bits during the process of inserting them into the spindle, there was no evidential foundation for the submission by [Counsel for the Claimant] that this would have resulted in a 2 weeks on / 4 weeks off shift pattern. However, as a matter of common sense, I accept that, if it is right (as I think it is) that the risk of injury referred to above would have been identified during any risk assessment, this would have resulted in some change being introduced so as to incorporate an element of "time off" from the lifting of the heavier drill bits.
In view of my findings on medical causation, I do not think it is necessary for me to be precise as to the exact shift pattern that would have been introduced, nor does the evidence permit me to do so. However, I am unconvinced that, given the focus of the risk being on the heavier drill bits, the perceived answer would have been to introduce a blanket 2 weeks on / 4 weeks off shift system. Such a system might or might not have relieved the Claimant from some of the burden of lifting the heavier drill bits, depending on the type of drilling that was being undertaken during his 2 week shift and, presumably, this difficulty would have been perceived by those trying to devise an appropriate system.
As a matter of common sense, I can see an argument for saying that it would have been thought more appropriate to focus in on the times when the heavier drill bits were being used, so as to provide the Claimant with someone with whom to share this heavier drilling work during any particular shifts on which it was required. The significance of this is that, if such a system had been introduced, it might not have materially reduced by a significant amount the overall amount of repetitive work being undertaken by the Claimant with the lighter drill bits.
Following a discussion of the Claimant's case on negligence, which Mr Recorder Spink concluded added nothing to the Claimant's case under the Manual Handling Operations Regulations, there is a passage of the Judgment headed 'Injury falling outside the scope of duty', at paragraphs 57 to 59:
Given my findings about the nature of the risk of injury that was posed to the Claimant as a result of the insertion of the drill bits or chucks into the spindle, namely an injury arising from having to lift the heavier drill bits at a distance from his body, an issue arises as to whether the injury in fact sustained by the Claimant (which had nothing to do with having to lift weights but was - on the Claimant's case - caused by percussive forces) falls outside the scope of the duty owed to the Claimant by the Defendant. In other words, if the duty owed by the Defendant under Regulation 4(1) of the MHO Regulations and at common law was to take steps to reduce the risk of a lifting injury, can it be liable to the Claimant if a breach of that duty coincidentally causes a different type of injury by a different mechanism against which it was not the duty of the Defendant to guard? On one view of decisions such as Banque Bruxelles Lambert S.A v Eagle Star Insurance Co, Ltd [1997] A.C. 191, Brown v Lewisham and North Southwark HA [1999] Lloyd's Rep. Med. 110 and Thompson v Bradford [2005] EWCA Civ 1439, it might be suggested that the Claimant could not recover in such circumstances.
In closing, I put this point to [Counsel for the Claimant]. He argued that in relation to the risk of injury due to the percussive forces caused by the insertion of the drill bit or chuck into the spindle, the Claimant's claim should not be defeated by the "scope of duty" argument because such percussive forces were an inevitable consequence of the lifting of the drill bit or chuck, which was the activity from the risks of which the MHO Regulations were designed to protect the Claimant. Thus the actual injury sustained, whilst different in type and caused by a different mechanism from that from which the Regulations were intended to protect the Claimant, was "parasitic" on the breach of Regulation 4(1) and thus within the scope of the duty owed to the Defendant.
I must say that I was unconvinced by that analysis. However, this was not a point that had been taken by [Counsel for the Defendant] either in his Skeleton or his closing submissions. Furthermore, at no stage was the issue subjected to proper legal analysis or, so far as I am aware, research by Counsel. In the circumstances, I do not feel that it would have been appropriate to determine this issue without hearing further submissions. Nonetheless, given my findings on causation (below) it is not necessary for me to determine this issue and, for this reason, I have not asked Counsel to make further submissions.
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Last updated: 14/05/2013