Swain v Denso Marston Ltd (The Times, 24 April 2000) (CA)

Manual handling – risk assessment – duty to provide instructions

S, an experienced production fitter, instituted a claim for damages against his employer, DM, following a crush injury to his right hand. The injury had been caused by the unexpectedly heavy weight of a roller as S stripped down a newly delivered conveyer. The court at first instance held that S had been engaged in the assessment process required by the Manual Handling Regulations 1992 Reg. 4(1)(b)(i) and that in consequence the obligation upon DM, as employer, to provide guidance under Reg. 4(1)(b)(iii) did not arise. S appealed, contending that he had not been engaged in an assessment process, and that the fact that an employer had been in breach of its obligation to carry out an assessment should not enable it to escape liability for a failure to provide guidance under Reg. 4(1)(b)(iii), despite the apparent absence of any culpability under Reg. 4(1)(b)(i). DM maintained that the obligation to provide guidance would only arise if an assessment under Reg. 4(1)(b)(i) would identify a risk of injury.

Allowing the appeal, the Court held that S had not been engaged in the statutory assessment process but rather in urgent maintenance. In circumstances where an employer was in breach of its obligation to carry out the statutory assessment procedure, the fact that he was in breach of that obligation could not be prayed in aid if, as a result of that failure, it omitted to provide the guidance required by Reg. 4(1)(b)(iii). The Regulations did not impose three discrete duties but should be read conjunctively. A detailed assessment might have involved obtaining manufacturer’s manuals and specifications to highlight potential problems with the machinery and if there had been insufficient information then caution should have resulted in a presumption that the roller might be unduly heavy and such concern should have been communicated to S under Reg. 4(1)(b)(iii).

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