Employers Liability – Failure to Risk Assess

When making a claim against your employer for personal injury there are certain hurdles you need to overcome to be successful. Very broadly you firstly need to prove that you are owed a duty of care by your employer, secondly you will need to prove that your employer breached that duty of care and lastly you will need to prove that breach caused your injury.

In a simple employee, employer relationship proving that a duty of care is owed is clear on the face of it. Generally, employers owe their employees a non-delegable duty of care. This means a duty of care that they cannot delegate to a third party.

Once this is established we would then move on to consider whether we can prove that the duty of care has been breached. In order to do this we would request that the employer provide certain documentation which we will assess. One of the main things we will be looking for in this documentation would be risk assessments.

The Management of Health and Safety at Work Regulations 1992 state that every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work. Further the Manual Handling Operations Regulations 1992 state that where it is not possible to remove the need for manual handling every employer, where the manual handling involves a risk of their being injured, shall make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them.

If an employer cannot provide risk assessments for the task that was being undertaken when they injury was caused, we would therefore argue that this would amount to a breach of duty.

In the recent case of Stewart v Lewisham and Greenwich NHS Trust 2017 (CA) the Claimant, a midwife, sought damages for a back injury caused by lifting an oxygen box. The lifting of the Oxygen Box had not been Risk Assessed. The Claimant in this case was unfortunately unsuccessful. This case however was very fact specific. The Claimant had not been lifting the box using an obvious handle.  Had she used the box correctly then the judge felt there was no risk of injury and therefore the requirement to risk assess had not kicked in.

It is rare that this the ‘risk of injury’ caveat in the regulations is considered in detail however following this judgement it is likely that Defendant will try and rely on it increasingly.  This should not discourage Claimants from perusing a claim against their employment for failure to risk assess. We will always consider the specific facts of a case before initiating Court proceedings. We would consider, from our experience it is rare that a manual handling task wouldn’t pose a risk of injury and will argue your case accordingly.

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