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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> West Sussex County Council v Fuller [2015] EWCA Civ 189 (12 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/189.html Cite as: [2015] EWCA Civ 189

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
SITTING AT LEWES
HIS HONOUR JUDGE COLTART
1LS11643

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th March 2015

Lord Justice Tomlinson:

1. In 2008 the Claimant/Respondent Kim Fuller, then Brown, was employed part-time by the Defendant/Appellant West Sussex County Council as an administrative assistant. She was then forty years old and in good health. Her main job was that of receptionist at the Defendant's Haywards Heath Premises at which the local office of its Social Services Department is located.
2. Until October 2008 one of the Claimant's tasks was to sort incoming mail and to place it into various pigeon holes for collection by those who worked in the ten or so sections of the Department found within the building. It seems that for whatever reason that system did not work efficiently. On 9 October 2008 the Claimant was asked thenceforth to deliver the post to the various areas of the building. She received an email from the office resource manager in the following terms:-

"Kim, Could you please deliver post to all areas of the office from today rather than putting it in the pigeon hole in the management suite. If this means you being away from reception longer than is acceptable, then please call the team clerks/admin to come down and collect it from you. If post arrives during the course of the day via other sources, courier etc., please ask admin to come down and collect. If they are not available then operational staff."

3. On 12 December 2008 whilst engaged in her relatively new task of delivering post within the building, the Claimant had the misfortune to fall forward on a staircase. She put out her right hand to break her fall and was unlucky enough to injure her wrist. Although she was able to continue at work that day it transpired that she had sprained a ligament.
4. The Claimant brought proceedings against her employers. She said that at the time she was carrying a large amount of post of both considerable bulk and thus awkwardness and of considerable weight – she estimated about 7 kilograms. She said that this meant that she had to use both hands in order to carry the post so that she could not use either of the handrails, of which there was one on each side of the staircase. She alleged that the bulk of the pile of post she was carrying, including parcels, meant that she could not see where she was walking. She said that, as she was going up the stairs, one foot did not lift off as she was anticipating because of the presence of a sticky patch, most likely to be a piece of chewing gum. Her momentum in going up the stairs carried her forward and she fell forward, was unable to grab a handrail because of the bulk of the post she was carrying, had to put out her right hand to break her fall, and was in consequence injured.
5. It was agreed that if the claim succeeded the Claimant would be entitled to an award of damages of £6,000. Liability was however denied. The matter came for trial before His Honour Judge Coltart in the Lewes County Court. It is apparent that the Claimant had various grievances concerning the manner in which she alleged that she had been treated by her employers.
6. The judge heard evidence from the Claimant and from several witnesses who had been in the building that day, including a Mrs Toussaint who, whilst she did not actually see the fall, was very quickly on the scene after the Claimant had got back to her feet.
7. The judge did not accept the Claimant's account of the accident. Not to put too fine a point on it, he found her account dishonest. The judge found that she was not carrying a large amount of post. She was carrying no large items. There was no mail or post spread about on the staircase as a result of her fall. There was only, if anything, something in one of her hands so that she had had at least one hand free. The judge found that there was no hazard in the form of a sticky patch that caused or contributed to the fall. The judge found that she had simply misjudged her footing, as she had explained at the time to one of her colleagues. This can of course happen to any of us. If an accident of this sort has to be analysed in terms of fault, as for the purposes of attributing liability normally it does, it was entirely the Claimant's fault, as the judge expressly found.
8. One might have thought that that was the end of the matter. The judge thought that it should have been, but he was nonetheless persuaded, evidently against his better judgment, that the law compelled him to find for the Claimant, and furthermore that he was "prohibited" from making any finding of contributory negligence. This was, he was reluctantly persuaded, a result of the circumstance that the defendant local authority was in breach of its statutory obligation to make a risk assessment of the task to be carried out by the Claimant in distributing post around the building, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The judge's instinctive reaction was that the argument presented to him, which he was invited to accept, was "health and safety gone mad". He was however persuaded that he had no option but to accede to it. It is a measure of his lack of enthusiasm for this outcome that having pronounced it he immediately asked Counsel for the Defendant if he wanted permission to appeal, and granted it without waiting to hear whether that course was opposed. Hence this appeal.
9. It is common ground that the Defendant owed to the Claimant the duties set out in Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 4 of the Manual Handling Operations Regulations 1992. They provide, so far as relevant:-

"3 Risk assessment

(1) Every employer shall make a suitable and sufficient assessment of--

a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; …

for the purpose 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….

4 Duties of employers

(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."

10. No risk assessment was produced by the Defendant, nor did it attempt to show that it had taken appropriate steps to reduce to the lowest level reasonably practicable the risk of injury to the Claimant arising out of her distribution of the post within the building. No instructions over and above the email set out at paragraph 3 above were given to the Claimant in relation to how she should carry out that task. It was Mr Pennock's submission, both before the Judge and before us, that whilst in order to found liability pursuant to a breach of Regulation 3 of the 1999 Regulations a Claimant must prove that the breach was causative of his injury, under Regulation 4 of the 1992 Regulations there is no such requirement. I did not find Mr Pennock's submissions entirely consistent or easy to follow, but I think that his submission was that it was for the Defendant to prove that its breach of Regulation 4 did not cause the accident, and that the only way that that could be done was by showing that it had taken appropriate steps to reduce to the lowest level practicable the risk of injury to the Claimant arising out of this post distribution operation.
11. It was put to Mr Pennock by the Court in the course of argument that surely the defendant in such circumstances can point to the fact that the cause of the accident had nothing to do with the risks generated by the operation in question, as here, where the Claimant had simply had the misfortune to misjudge her footing, as anyone can do when ascending a staircase. Mr Pennock contended that the judge had made a finding that precluded that approach. He relied on what the judge said at paragraph 18 of his judgment:-

"Had the defendants carried out a risk assessment and come to the conclusion that there was no risk that needed any further action, that would have in all probability have been sufficient for me to have absolved them from responsibility, but given that they had not carried out any risk assessment, as apparently they are obliged to do, it seems difficult now for me to be able to say categorically that that assessment would not have highlighted this particular operation and that a way of reducing the risk might well have been appropriate. Although it seems to me that this accident was in fact entirely the claimant's fault, it seems that in law I am obliged to find in her favour. As I say, it is a decision that I feel driven to and with considerable regret because I think it flies in the face of common sense and also merely encourages the sort of compensation culture which has been the subject of considerable media attention."

Mr Pennock submitted that that passage demonstrated that the Defendant had failed to show that it could not have avoided the risk of the Claimant missing her footing.

12. I do not consider that this passage in the judge's judgment is of any assistance to Mr Pennock. As is obvious, the only way in which all risk of the Claimant misjudging her footing on the steps could have been removed is by preventing her from using the staircase. Mr Pennock did not shrink from suggesting that that may indeed be what was required of the Defendant, in the sense that he submitted that the outcome of a risk assessment might have been that the employees in the various departments should be required to collect their post, as hitherto they had done. That of course begs the question whether they in turn should have been permitted to carry post up the stairs. The unreality of Mr Pennock's submissions was perhaps highlighted by his acceptance that on his approach the Defendant would have been liable if the Claimant had been unfortunate enough to suffer a heart attack whilst carrying an item or items of post up the staircase.
13. The fallacy in this argument lies of course in the circumstance that liability for breach of neither Regulation 3 nor Regulation 4 can be established without proof of a causal link between the breach and the injury suffered. The legal burden of proving that causal link rests on the Claimant. He or she who asserts must prove. In many typical workplace situations however, a failure by the employer to assess the risks of injury involved in a manual handling operation, and to take appropriate steps to reduce the risk of injury to the lowest level practicable, will effectively cast on to the employer the evidential burden of showing that his failure in that regard was not at least a cause of the accident. That is because in a typical workplace accident there is an obvious connection between the injury and the particular risks associated with the activity being undertaken. Particularly is this so in the case of a manual handling operation. However that is not so where the cause of the accident is manifestly unconnected with the risks generated by the operation in question, as here, where the Claimant simply misjudged her footing going up the stairs, in circumstances in which she was in no way disadvantaged in her ascent of the stairs by the circumstance that she was carrying one or two light and non-bulky items of post. Had she, as she asserted, been carrying, and required to carry, such a volume of bulky material that she could not see where she was putting her feet, and could not retain one hand free to use or grab a handrail, the outcome might have been different. Then there would have been an obvious point to be made that her missing her footing could plausibly be attributed to the circumstance that she was at the time, as she had been required to do, carrying out an operation which brought with it some risk additional to that which always attends simple ascent of a staircase. In other words, she could plausibly have made out a prima facie case on causation. In such circumstances there might be some force in Mr Pennock's submission that the provision of a postbag, which she could have put around her neck, might properly have been identified by a risk assessment as an appropriate step to reduce the risk of injury to the lowest level reasonably practicable. The Defendant might then have been unable to discharge the evidential burden of showing that, had a postbag been provided, the injury would still have occurred. But on the facts found by the judge the circumstance that the Claimant misjudged her footing had no connection whatever with the risks inherent in carrying post. She simply succumbed to the ordinary risk inherent in climbing a staircase. Given the small amount of post she was carrying, and its non-bulky nature, the Claimant was no more disadvantaged than any other employee in ascending the staircase during the working day, for example in order to attend a meeting on an upper floor, or simply to visit the lavatory. There was thus no causal connection between the risks inherent in carrying an awkward or heavy pile of post and the circumstance that the Claimant misjudged her footing, and thus no need for the Defendant to demonstrate that notwithstanding its breach of duty, if such there was, the accident would be likely to have occurred even had it taken appropriate steps to reduce to the lowest level reasonably practicable the risks associated with the post carrying operation. That is simply another way of saying that, properly analysed, what happened to the Claimant had nothing to do with the fact that, at the time she had the accident, she happened to be carrying post.
14. Mr O'Donnell submitted that there had in fact been no obligation on the Defendant to carry out a risk assessment in respect of the routine task of carrying post around an office building, even if it on occasion involved carrying bulky files of the sort generated by a Social Services Department. He pointed to the email set out at paragraph 3 above as sufficient indication that the Claimant was expected to seek assistance if the volume or weight of material involved prolonged absence from the reception area. We do not need to decide this point. I am prepared to assume that the task did generate in the Defendant an obligation to carry out an assessment under Regulation 4(1)(b)(i) and to take appropriate steps as required under Regulation 4(1)(b)(ii). Since this was arguably a manual handling operation, Regulation 3 of the 1999 Regulations adds nothing and need not be further considered.
15. Unsurprisingly the proper approach to Regulation 4(1)(b)(i) and (ii) is not virgin territory. O'Neill v DSG Retail Limited [2002] EWCA Civ 1139, a decision of the Court of Appeal, emphasises the need to find a causal link between breach and damage. That was a case where the employer had failed properly to train a warehouse manager whose work included stacking and moving electrical goods. In particular, he had not been shown a video designed to train people out of the instinct to twist when carrying a load. Whilst carrying a microwave oven, the claimant responded to a call by a work colleague and turned, twisting his body without moving his feet. He suffered injury to two discs in his lumbar spine and subsequently issued proceedings against the defendant alleging negligence and breach of the 1992 Regulations. The claimant contended that the defendant had been in breach of Regulation 4(1)(b)(ii) in that he had received no manual handling training. The judge found that the claimant had had knowledge of the risks and dangers involved in lifting, and had taken those on board, and that the precise circumstances in which the accident had happened were wholly unforeseeable. The judge concluded that the wholly unexpected instinctive reaction of the claimant had caused the accident, and not the lack of training or breach of any regulation. The Court of Appeal allowed the claimant's appeal against the dismissal of his claim. Nelson J said this:-

"84. Had the Judge considered Mr Chavda's evidence together with Mr Mabey's evidence, and found, as she should have done, that the Respondent was in breach of regulation 4 (1)(b)(ii) she should have concluded that that the failure to train was on the balance of probabilities a cause of the accident in that had it been given the Appellant would have paused to think before instinctively responding to a colleague's call.

85. In so far as the Respondent contends that any breach of regulation 4(1)(b) (as opposed to breach of regulation 4(1)(a)) merely provided the occasion for the injury and did not cause it, I reject that argument. The very purpose of the training was to reduce the risk of responding instinctively, which is precisely what the Appellant did. Such a failure amounting to breach of the regulation, was not in my judgment merely the occasion for the injury but a cause of it."

Chadwick LJ said:-

"89. There were, therefore, two questions for the judge to consider: (i) had the employer taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable; and (ii) if not, was the employer's failure to take those steps a cause of the injury."

Peter Gibson LJ said this:-

"103. The more difficult question in this case is whether causation is established, given that the Judge expressly found that there was nothing that the Defendant did or did not do which could have prevented the accident and that it was not any breach of any regulation which was the causative effect of the accident. In so doing the Judge expressed her strong dissatisfaction with the report of Mr. Mabey, the Claimant's expert, and found support for her conclusion in the oral evidence of Mr. Mabey.

107. In these circumstances I reach the conclusion that the Judge failed to consider the evidence on causation before her properly, as she should have done in the light of the breach of Regulation 4 (1)(b)(ii). Had she done so, I think that she would have been compelled to reach the conclusion that the breach was a probable, though not a certain, cause of the injury."

16. To similar effect is the decision of the Inner House of the Court of Session in Davidson v Lothian and Borders Fire Board [2003] SLT 939, which emphasises that Regulation 4 of the 1992 Regulations is engaged where an event occurs which falls within the ambit of a risk of injury to which a particular manual handling operation gives rise. Lord Macfadyen recorded at paragraph 22 the common ground on the appeal that the pursuer (claimant) had to establish four factors in order to make out a prima facie case of breach of duty under Regulation 4:-

"…(i) that he was engaged in a manual handling operation, (ii) that it gave rise to a risk of injury; (iii) that an event falling within the ambit of that risk occurred and (iv) that actual injury was thereby caused. If these matters were proved the pursuer was entitled to succeed unless the defenders made out the statutory defence that they had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable."

Indeed, as Lord Macfadyen went on to say, it was not disputed that establishment of those four factors cast onto the defenders the onus of establishing the statutory defence that they had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The only note of caution I would enter is over the use of the expression "statutory defence." As Lord Macfadyen points out, proof of the four factors shows only a prima facie case of breach of statutory duty. That casts onto the defenders the evidential burden to rebut that prima facie case. Where a risk assessment has been carried out, and the debate is whether appropriate steps have been taken to reduce the risk of injury to the lowest level reasonably practicable, the employer may succeed in showing not so much that he has a defence but rather that he has in fact performed his statutory duty. Where however there has been no risk assessment, the employer is without more in breach of duty, hence perhaps use of the language "statutory defence" to describe his successful reliance upon the appropriateness of the steps nonetheless taken to reduce risk to the lowest level reasonably practicable as exonerating him of liability. However for present purposes the importance of the case is its unsurprising affirmation of the need to show a causal link between breach of duty and injury.

17. Two relatively recent decisions of the Court of Appeal are said by Mr Pennock to support his approach. The first is Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust [2008] EWCA Civ 1424. A nurse was required as part of her duties to use a mobile hoist to transport a disabled patient to a bath, and to use the hoist to manoeuvre the patient into the bath. The bath stood on a plinth set back from the back of the bath which was not visible from a standing position alongside the bath. As the nurse manoeuvred the wheeled forks of the hoist under the bath they made contact with the plinth, the hoist suddenly stopped and the nurse suffered a jerking injury to her back for which she claimed damages. It was common ground that no risk assessment had been carried out and that that was a breach of the 1992 Regulation. It was suggested that the employer might have put markings on the floor designating precisely how the hoist legs could be guided around the plinth, which was called suggestion (b), or that the plinth itself could have been brought forward to the front of the bath and clearly marked, suggestion (c). In allowing the claimant's appeal against the dismissal of her claim, Smith LJ said:-

"[20] It is clear from the judgment that the judge did not give separate consideration to reg 4(1)(b)(ii). In my view, he should have done because the requirements of that regulation are separate from and additional to the requirement to carry out a risk assessment. Of course, the two are related, in that, a risk assessment will show the employer what steps it ought to take in order to reduce the risk of injury to the lowest level reasonably practicable. Also, if an employer has carried out a careful and thorough risk assessment and has taken all the steps which appeared from that assessment to be appropriate to reduce the risks involved to the lowest level reasonably practicable, the employer would be in a strong position to defend itself under reg 4(1)(b)(ii).

[21] However, where, as here, no risk assessment has been carried out, the judge ought to focus on the regulation which imposes a duty to take positive action to reduce risk, reg 4(1)(b)(ii). The judge would approach that regulation on the basis that, once it has been shown that the manual handling operation carries some risk of injury, the burden of proof is on the employer to plead and prove that it has taken appropriate steps to reduce that risk to the lowest level reasonably practicable.

[22] Accordingly, in my view, it was not sufficient merely for the judge to examine whether a risk assessment would have made any difference. Having said that, the questions Judge Tetlow asked himself did more or less cover the same ground as would have been covered by a separate consideration of reg 4(1)(b)(ii). It is true that the judge did not refer to the burden of proof and it appears to me, from his reference to the lack of particularity in the Appellant's pleading, that the judge may have, in his own mind, have placed the burden on the Appellant. If he did, that would have been wrong. I accept of course, that, in practice, if a Claimant wants to allege that there were steps which could and should have been taken and the employer says there were none, there will be an evidential burden on the Claimant to advance those suggestions, even though the legal burden will remain on the employer. So, although it was not in my view correct, the judge's approach was capable of leading him to the right conclusion. The question is whether or not his assessment of the various suggestions was right, bearing in mind that the Appellant had established that the operation in question carried a risk of injury and it was therefore for the Respondent to show that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable."

Smith LJ then went on to consider suggestions (b) and (c) and concluded:-

"[26] In my judgment, either of those solutions was reasonably practicable. Either of them would have been of real assistance to the operator. I do not say that they would have guaranteed that there was no risk at all but they would have reduced the risk of injury by collision to a significant degree. Were such steps appropriate? It is not entirely clear to me what the word "appropriate" adds to the regulation. Once a risk of injury has been identified and a suggestion has been advanced which would reduce the risk and is reasonably practicable, it is difficult to see how it could be argued that the step was not "appropriate". In any event, in the circumstances of this case, where either suggestion (b) or (c) would have reduced the risk and were reasonably practicable, I do not think it could be said that they were not appropriate steps.

[27] Accordingly, I would hold that the Respondent employer was in breach of its duty under reg 4(1)(b)(ii). In my judgment, if either of the suggested steps had been taken, it is likely that the accident would have been avoided. I would therefore hold the Respondent primarily liable for the injury.

[28] That leaves the question of contributory negligence. Counsel have agreed that we should decide the issue but have not made detailed submissions as to how responsibility should be apportioned…

[31] The fault of each party has "caused" the injury in that, if either had taken proper care, the accident would probably have been avoided. I find myself unable to distinguish between the two parties when considering blameworthiness; it seems to me that neither side could or should be heavily criticised. Accordingly, I find myself driven to conclude that they should share responsibility equally. I would hold the Respondent liable to the Appellant in 50% of the damages."

18. It is important to note that paragraphs 20-26 of Smith LJ's judgment are concerned with the question whether a breach of duty has been established. Paragraph 20 makes the point that an employer who has carried out a careful and thorough risk assessment is in a better position to show that he has taken such steps as are appropriate to reduce the risk of injury to the lowest level reasonably practicable than is one who has carried out no such assessment. At paragraph 27 Smith LJ turns to causation. She concludes that had either of the suggested steps (b) or (c) been taken, both of which were reasonably practicable, and would have reduced the risk, and were thus appropriate steps to be taken by the employer, it is likely that the accident would have been avoided. That is another way of saying that the failure to take those steps was a cause of the accident.
19. This decision was applied in Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642. Mr Ghaith was a Field Service Engineer employed by Indesit, suppliers of white goods such as washing machines, refrigerators and dishwashers. He was employed to visit homes to repair and maintain white goods previously sold to customers, and for that purpose he was provided with a van full of machine parts. Once a year Indesit arranged a stock-taking of the equipment in his van. One such stock-take occurred on 2 March 2007. Mr Ghaith and his supervisor, Mr Leversedge, did it together. The method used was that everything was taken out of the van, scanned, and then noted on to a computer record kept by Mr Leversedge on his handheld computer. Large items, such as washing machine drums, had to be lifted out and placed on the ground or on a trolley for examination; smaller items were lifted out and put in what was called a "tote box" and then placed on to a trolley. The majority, 70%, of the lifting and moving, was done by Mr Ghaith. In the course of this operation, which took most of the day from 09.30 to 4.00 or 4.30, with four short breaks, Mr Ghaith sustained a back injury when lifting. The judge rejected his claim against Indesit for breach of statutory duty in these terms:-

"The Claimant had been trained, he knew how to lift, and it seems to me there is nothing more that could have been done on the part of the Defendant. So I am not satisfied that it can be said that the injury which the Claimant suffered was caused by a breach of any particular provision in Regulation 4. I think that is the end of my judgment."

20. Longmore LJ, with the concurrence of the other members of the court, disagreed with the Judge's assessment. He concluded:-

"[18] It is noteworthy that by May 2011 Indesit had come to realise not merely that stock taking needed a separate assessment but that such assessment assumed or decided that the process should take no more than two hours.

[19] For these reasons, I cannot agree that there was any suitable or sufficient assessment of the relevant risk by Indesit, who cannot therefore rely on Smith LJ's dictum that, if such an assessment has been carried out and if the steps recommended by such assessment have been taken, the employer will be in a strong position to defend itself under reg 4(1)(b)(ii)."

21. Longmore LJ then went on to consider whether, notwithstanding the lack of a proper risk assessment, Indesit could discharge the difficult burden of showing that it had taken all reasonable precautions to reduce the risk. He concluded that it could not. He then went on:-

"CAUSATION

[23] This is not a separate hurdle for the employee, granted that the onus is on the employer to prove that he took appropriate steps to reduce the risk to the lowest level practicable. If the employer does not do that, he will usually be liable without more ado. It is possible to imagine a case when an employer could show that, even if he had taken all practicable steps to reduce the injury (though he had not done so), the injury would still have occurred eg if the injury was caused by a freak accident or some such thing; but the onus of so proving must be on the employer to show that that was the case, not on the employee to prove the negative proposition that, if all possible precautions had been taken, he would not have suffered any injury."

22. It may be that this passage has been misunderstood. It is not perhaps the easiest passage to follow, perhaps because Longmore LJ has run together the two separate concepts, breach of duty and causation. It is however important to note the context in which he has done so, which is in a case where the very risk inherent in the operation of repeated lifting of heavy or awkward loads has eventuated, viz, back injury, and where the employer had carried out no sufficient risk assessment. So it is one of those plain cases where the claimant demonstrates without more a prima facie causal connection between the inherently risky operation and the injury. Furthermore, it is a case where the employer is in breach of duty in having failed to carry out a sufficient risk assessment, and in order to exonerate himself needs to show that he has nonetheless taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. Those are the circumstances in which Longmore LJ said that causation was not a separate hurdle for the employee. It was not a separate hurdle because the employee had already made out a prima facie case, based on the occurrence of the risk inherent in the manual handling operation he was asked to undertake. Longmore LJ recognised that, even in such a case, and where the employer cannot show that he has taken appropriate steps to reduce the risk to the lowest level reasonably practicable, it is only "usually" that he will be liable without more ado. It is still open to the employer to show that his breach of duty has not in fact been causative of the injury, as where for example the employee suffers a heart attack which can be demonstrated to be wholly unconnected with the manual handling operation. Longmore LJ is simply making the point that once a prima facie connection is established between the risky activity and the injury, it is for the employer to disprove causation, not for the employee to prove that, if all possible precautions had been taken, he would not have suffered injury.
23. These authorities demonstrate that the judge had no need to accede to Mr Pennock's counter-intuitive submission. Liability under Regulation 4 of the 1992 Regulations is only established on proof of a causal breach of duty. Here the Defendant was arguably in breach of duty in failing to carry out a risk assessment in relation to the task which it asked the Claimant to perform. But on the facts found by the judge, the accident which befell the Claimant did not fall within the ambit of the risk which the Defendant was arguably required to assess. The Claimant simply misjudged her footing when climbing a staircase whilst she happened to be carrying one or more items of post. Her accident was wholly causally unconnected with the circumstance that she was at the time carrying one or more items of post. The circumstance that the Claimant was carrying post may perhaps be described as the occasion for her injury, but it was not a cause of it.
24. I would allow the appeal and dismiss the claim.

Lord Justice Moore-Bick:

25. I agree.

Sir Robin Jacob:

26. I also agree.