INTRODUCTION
The term Musculoskeletal disorders (MSDs) covers any injury, damage or disorder to the joints and other tissues in the back, upper and lower limbs. According to latest estimates from the Labour Force Survey 2016 there are just over ½ million cases of MSDs in Great Britain which are either caused or made worse by work. These conditions accounts for around 1/3rd of all working days lost due to work related ill health.
Most MSDs develop over time and in the context of work are often related to activities which involve fixed or constrained body positions, continual and prolonged repetition of movements, use of excessive force and a pace of work that does not allow sufficient recovery time.
Risk assessments are central to the prevention and management of MSDs within the workplace.
However, does failure to carry out a risk assessment automatically result in a causative breach of duty on the part of an employer so that they are ultimately liable for the injury sustained?
WHAT ARE RISK ASSESSMENTS?
Employers are required to carry out risk assessments by law. They are designed to assist employers in identifying measures to control the risks in the workplace. The HSE recommend that employers focus on ‘real’ risks i.e. those that are most likely and which will cause the most harm, rather than trivial risks.[i]
It is important to differentiate between a hazard and risk. A hazard is anything that may cause harm, such as chemicals, electricity or working from ladders and the risk is the chance, high or low, that somebody could be harmed by these and other hazards, with an indication of how serious the harm could be.
Employers are expected to keep a record of significant findings from risk assessments unless there are fewer than five employees in which case there is no requirement to write anything down.
The law does not expect employers to remove all risks, but to protect people by putting in place measures to control those risks, so far as reasonably practicable. As such a risk assessment must be ‘suitable and sufficient’ by showing that:
- a proper check was made;
- an assessment of who might be affected was made;
- all the obvious significant hazards were dealt with, taking into account the number of people who could be involved;
- the precautions are reasonable, and the remaining risk has been reduced to the lowest level reasonably practicable;
- involving employees or their representatives in the process.
BREACH OF DUTY
Where MSD claims arise from exposures after 1 October 2013, claims will be framed in common law negligence. As a result of s. 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) breach of a duty imposed by health and safety legislation will no longer give rise to civil liability.
It is trite law that the common law standard of care to be applied to an employer remains that in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776. That an employer does not fall below the standard to be properly expected of a reasonable and prudent employer if it follows a recognised practice, unless it is clearly bad, but it must keep reasonably abreast of developing knowledge, and not be too slow to apply it; that where an employer has greater than average knowledge of the risks it might be obliged to take more than average precautions; and that it should weigh up the risk in terms of the likelihood of injury occurring and the potential consequences and balance that against the effectiveness, expense and inconvenience of the precautions.
Evidence of breach of health and safety regulations are now insufficient to immediately trigger civil liability. However, an employer’s failure to comply with statutory duties are often relied upon as evidence of an employer’s failure to meet its common law duty of care to safeguard against reasonable foreseeable injury.
Before ERRA was implemented, during a Parliamentary debate on the Bill, Lord Faulks, Minister of State for Justice (as he then was), said: [ii]
‘A breach of regulation will be regarded as strong prima facie evidence of negligence. Judges will need some persuasion that the departure from a specific and well-targeted regulation does not give rise to a claim in negligence’.
Most claims for MSDs will still therefore place some reliance upon an employer’s duties under the Manual Handling Operations Regulations 1992 (MHOR). Regulation 4(1)(b) of MHOR sets out the duties regarding assessment of risk. There has to be a ‘suitable and sufficient’ risk assessment, taking account of the following:
- the task;
- the load;
- the work environment;
- individual capability and physical suitability of the employee;
- whether movement or posture is hindered by personal protective equipment or by clothing
- knowledge and training of the employee;
- results of any relevant risk assessments or health surveillance (under the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999)) and whether the employee is within a group identified by the assessment as being especially at risk.
Additionally, the Management of Health and Safety at Work Regulations 1999 requires that employees;
- assess all significant risks, and keep a written record of the risk assessment where there are 5 or more employees;
- identify preventive or protective measures in the risk assessment;
- take particular account of risks to new/expectant mothers and young people;
- arrange for effective planning, organisation, control, maintenance and review of health and safety, to include health surveillance where identified by an assessment as appropriate;
- provide comprehensive and relevant training to all employees on health and safety, including information on the risks involved and preventive / protective measures.
However, does non-compliance with the above statutory duties automatically result in a causative breach of duty?
CASE LAW
In the Scottish decision of Gilchrist v Asda Stores Limited [2015] CSOH 77, it was held that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law. An employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably and the existence of a regulation demonstrates that harm is foreseeable.
However, it was accepted that an employer may avoid liability if what happened was due to unusual and unforeseen circumstance beyond the employer’s control or if the cause was some exceptional event the consequence of which could not have been avoided despite the exercise of all due care.
The importance of risk assessments in determining what the employer ought to have known about the risks to an employee was highlighted in the Court of Appeal decision of Allison v London Underground Ltd [2008] EWCA Civ 71, a WRULD claim in which LJ Smith stated
‘How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable’.
She went on to say:
‘Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action. I do not think that Judge Cowell was alone in underestimating the importance of risk assessment. It seems to me that insufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced. I think this is because judges recognise that a failure to carry out a sufficient and suitable risk assessment is never the direct cause of an injury. The inadequacy of a risk assessment can only ever be an indirect cause. Understandably judicial decisions have tended to focus on the breach of duty which has led directly to the injury.’
It follows from these comments that whilst a risk assessment is a ‘blue print’ for action and will be indicative of what the employer ought to have known with regards to the risks to employees, they are not conclusive of a causative breach as they can only ever be seen as an indirect cause of the injury.
This is supported by the decision in Egan v Central Manchester NHS Trust [2008] EWCA Civ 1424, in which it was emphasised again that the employer’s duty to carry out a suitable and sufficient risk assessment and reduce the risks of injury to the lowest level reasonably practicable are interrelated but should also be considered separately.
However, in Ali Ghaith v Indesit Co Uk Ltd [2012] EWCA Civ 642, a manual handling claim, the Court of Appeal highlighted that where there is no ‘suitable and sufficient’ risk assessment the burden of showing that the risk of injury has been reduced to the lowest level reasonably practicable is ‘inevitably difficult to discharge’. Although, recent decisions have tended to show that liability can be avoided in the absence of a risk assessment.
One approach the courts have taken is to look at what the risk assessment would have found had it been carried out. For example, in the stress claim of Sayers v Cambridgeshire County Council [2006] EWHC 2029Ramsay J concluded:
‘I do not see that a risk assessment would have done anything towards preventing Mrs Sayers' illness in this case. The risk assessment form produced by the Council indicates the matters which might have been assessed. However, the assessment of risk depends on the information available. In this case there is no evidence that Mrs Sayers would have disclosed her previous history of psychiatric illness or any other evidence which would have led to a different conclusion on the foreseeability of a risk than I have found to be the case. The evidence is to the contrary and even Dr Orr was initially unaware of her previous medical history.’
He went on:
‘The council had, I find, adequate general strategies for dealing with risks in relation to workplace stress and they employed mentors and coaches to assist employees. Those strategies depend, though, on the needs of Mrs Sayers being assessed and, for the reasons given above, no matter what strategies were implemented, there is no evidence that such strategies or assessment would have led to a different conclusion as to the foreseeability of a risk in this case. In the circumstances, I do not consider that the council was in breach of any duty to carry out a risk assessment or conduct any particular strategy in this case which would not, unfortunately, have prevented Mrs Sayers' illness in August 2002’.
This approach was followed more recently in Bailey v Devon Partnership NHS Trust (Queen's Bench Division District Registry (Exeter), 11 July 2014), another work related stress claim. The claimant submitted that a risk assessment should have been carried out as it would have led to a recognition that consultant doctors, generally, were at risk of stress related illness and would have led to the full implementation of a pre-existing stress policy which would in turn have assisted in identifying the claimant’s levels of stress.
The judge agreed that the defendant was in breach of its duty under the 1999 regulations and at common law not to have undertaken a risk assessment. However, he then turned his attention to what such an assessment would have achieved and he concluded that the claimant’s breakdown could not have been foreseen and would not have been avoided no matter what required steps were taken. He stated:
‘As for causation of the first breakdown it was, as the experts have identified multi–factorial and in my judgment even if the assessment had led to some immediate reduction in or alteration to her workload it would not have prevented the first breakdown. For the avoidance of doubt, it is my finding that even if it had been suggested to her that she relinquish the Named Doctor duties this would have made little practical difference’.
As such it was held that:
‘for the reasons that I have already set out in some detail I find that had any reasonable further steps been taken the outcome would not have altered. So, whilst breach has been established, the element of the claim relating to the second breakdown still fails on causation’.
In Nicholls v Ladbrokes Betting & Gaming Ltd [2013] EWCA Civ 1963, which was an appeal by the owner of a betting shop against a decision that it was liable to an employee for failing to take steps to prevent a robbery occurring, part of this claim was that the defendant had failed to comply with regulation 3 of the 1999 Regulations i.e. it had not carried out a risk assessment on the shop in which the claimant was based. LJ Jackson concluded that:
‘The mere fact that the defendant failed to carry out a proper risk assessment is not, on its own, sufficient to establish the claim. It forms, however, an important part of the background when one comes to consider the other alleged breaches. If the defendant had carried out a proper risk assessment in relation to the Walsgrave Road shop, it probably would not have committed the alleged breaches of duty relating to the use of the magnetic lock’.
However, LJ Tomlinson and LJ Floyd both disagreed with this conclusion and found that in the absence of a formal finding of what the risk assessment would have shown, the lack of a risk assessment does not help the claimant. LJ Floyd stated specifically at para 89:
‘Merely to say that a formal risk assessment would have addressed the vulnerability of the shop is to beg the question of what the vulnerability of the shop actually was. It is trite to say that all shops are vulnerable/ to robbery. The absence of the risk assessment cannot constitute positive evidence about the nature or extent of the risk. The passage I have quoted from Smith LJ’s judgment in Allison v London Underground makes it clear that the court needs to consider what a risk assessment would have found, not what topics it would have addressed or what matters it would have been, in consequence, possible to assess’.
As such he did agree with the conclusion of LJ Jackson, that the failure to carry out a proper risk assessment is not, on its own, sufficient to establish the claim but he went further by saying that in this case he could not see how it materially assisted the claim at all and as such there was no causative link between the risk assessment and the injury.
The Court of Appeal made a similar finding in West Sussex CC v Fuller [2015] EWCA Civ 189, which was a ‘slip and trip’ claim brought by the claimant, a receptionist responsible for distributing post, against her employee. The claimant relied upon the defendant’s failure to carry out a risk assessment under the 1999 Regulations and the MHOR. However, the court found that there was no causal link between the failure to conduct a risk assessment and the injury suffered by the claimant. She had simply misjudged her footing which was an ordinary risk inherent in using a staircase and totally unconnected to the activity of carrying post. As such the claim was dismissed.
A similar approach was taken in the most recent decision of Edwards v London Borough of Sutton [2016] EWCA Civ 1005, which was an appeal by the defendant in relation to a personal injury claim sustained by the claimant. The claimant was pushing a bicycle over a small ornamental footbridge in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had low parapet sides. It was an old bridge and there had been no previous accidents. The claimant lost his balance and fell over the edge into the water below. As a result he sustained a serious spinal cord injury. The trial judge found that the risk of a fall ought to have been identified and assessed, and although the law did not require the defendant to fit side railings to the bridge he did find that it should have warned users of the low parapet.
The defendant criticised the reliance upon the absence of formal risk assessment and argued that it is necessary to identify what an assessment would have concluded, relying on the comments above in Nicholls. The defendant also submitted that an assessment would not have contributed to an avoidance of this accident. In support of this it was submitted that a warning sign would only have been a warning of something which was obvious and that causation was not established as the claimant did not show that he would not have taken the bridge in the face of a hypothetical warning.
LJ Arden agreed with this submission and found at para 57:
‘On the facts of this case likewise, I do not see what a formal assessment would have produced (if anything at all) beyond a statement of the obvious, namely that this was a bridge with low parapets over water; persons not exercising proper care might fall off. I do not see how such a statement would have led to steps being taken that would have prevented or lessened the possibility of Mr Edwards’ accident occurring’.
As such the appeal was allowed and the claim was dismissed.
In Uren v Corporate Leisure (UK) Limited, (MOD) [2013] EWHC 353 (QB), the court concluded that if the risk assessment had been properly carried out, then steps would have been taken to eradicate the real risk of serious injury from diving head first that there was. As such the defendants were found to be liable for the claimant’s injury.
Although the outcome of this case was not positive for the defendants it is consistent in that it again highlights the necessity of considering what the risk assessment would have found.
COMMENT AND CONCLUSION
Risk assessments are a central part of identifying foreseeable risks of MSDs and preventing and managing these within the workplace.
However the absence of a formal written assessment is not necessarily fatal to the defence of a MSD claim and will not automatically result in the employer being liable for injury. This is because the lack of a risk assessment does not necessarily prove a causative breach.
It is important that one considers what the risk assessment, if it had been carried out, would have found. The following questions should be posed:
- Would it have highlighted any risks which would have caused the employer to implement additional preventative safety measures?
- Would it have highlighted any risks which it would be reasonable for the employer to have addressed or were they merely trivial or obvious?
- Had the employer already taken all the necessary steps to prevent the employee suffering foreseeable harm and as such the risk assessment would not have made any difference and the claimant would have still sustained the injury?
These are necessary questions which must be posed in order to establish whether there is a causal link between the alleged breach of duty and the injury. If the employer can show that work practices would have been carried out in exactly the same way and all identifiable risk prevention and control measures were in place, than the absence of a formal written risk assessment would change nothing. Injury would still have occurred. The breach is non-causative.
Similarly, whilst it has been found that the lack of a risk assessment may be evidence of breach of an employer’s common law duty of care, the case law has indicated that employers will still be held to the standard of care in Stokes and as such the failure to carry out a risk assessment will only equate to negligence where it would have highlighted a foreseeable risk of injury to employees that had not already been accounted for.
