BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Costa v Imperial London Hotels Ltd [2012] EWCA Civ 672 (01 May 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/672.html Cite as: [2012] EWCA Civ 672 |
[New search] [Printable RTF version] [Help]
ON APPEAL FROM THE MAYOR AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE BIRTLES)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE HUGHES
and
LORD JUSTICE MCFARLANE
____________________
COSTA |
Appellant |
|
- and - |
||
IMPERIAL LONDON HOTELS LIMITED |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Martin McLeish (instructed by Russell Cooke Solicitors) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Lord Justice Hughes:
"Duties of employers
4.—(1) Each employer shall—
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on—
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally.
(2) Any assessment such as is referred to in paragraph (1)(b)(i) of this regulation shall be reviewed by the employer who made it if—
(a) there is reason to suspect that it is no longer valid; or
(b) there has been a significant change in the manual handling operations to which it relates;
and where as a result of any such review changes to an assessment are required, the relevant employer shall make them. "
"In my judgment, the Defendant should have provided the Claimant with further training or instruction about moving beds. On the facts of this case such regular training was necessary, as Mr Potticary accepted in his evidence."
He then went on to refer to the repetitive nature of the task.
"I accept Mr McLeish's [counsel for the claimant] submission that refresher training on a regular basis would have prevented or at least reduced the risk of the Claimant pulling the bed from the wall in the way that she demonstrated at trial."
"Such training would have prevented this accident"
and continued to say that it would have been inexpensive and easy to do.
"We have to try to find out whether she lifted the bed."
And then he asked this very pertinent question:
"Would this strain the upper torso?"
bearing in mind that the injury in this case was to the neck. That he made the query is to my mind wholly unsurprising, it is exactly the right query to make. When it came a few days later to drafting judgment in rehearsing the claimant's evidence at paragraph 8(c) the judge fell into error in the way that he recorded it. He said this:
"There was a real issue in this case as to whether or not the Claimant lifted the end of the bed as she pulled it away from the wall. My distinct impression is that at the beginning of her evidence the Claimant was saying that she did not have to lift the bed. Later she resiled from this position and said that she pulled the bed out."
"She may [my emphasis] also have tried to lift the bed at the end of the bed and pull it out on the front two wheels."
"I find that this accident occurred by the Claimant either: (a) lifting or pulling the rear end of the bed away from the wall in order to hoover underneath the bed and/or (b) not keeping her back straight and her knees bent."
"I also found when the accident occurred because she lifted the bed and pulled the bed away from the wall and did not keep her back straight and her knees bent as she was instructed to do..."
Sir Andrew Morritt:
Lord Justice McFarlane:
Order: Appeal allowed