Filtering The Risk - A Midwife's Tale
Who are BL Claims Solicitors
BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.
We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset
Mrs Rhonda Stewart v Lewisham and Greenwich NHS Trust
Mrs Stewart was employed as a Community Midwife. On 28 May 2010 she injured her back at work when lifting a plastic case containing an oxygen cylinder and other equipment needed when attending home births - known as the 'oxygen box'. The box had been left on the floor in the midwives' room on the floor and Mrs Stewart had injured herself when "scooping" the box up with her hands positioned underneath. The box was equipped with a handle but for reasons which are unclear Mrs Stewart chose on the day of the accident not to use the handle.
The oxygen box weighed 7.5kg - 8kg. The Trust had not performed any risk assessment for the task of lifting the box.
Mrs Stewart brought a claim against the Trust for breaches of the Management of Health and Safety at Work Regulations 1999 and the Manual Handling Operations Regulations 1992 . The trial judge held that there was no liability on the part of the Trust on the grounds that there was ‘no real risk of injury’ from lifting the box and so no detailed risk assessment was required. Mrs Stewart appealed. The case went to the Court of Appeal on 12 December 2017 and her appeal was dismissed.
The case is interesting in how the Court interpreted and applied the Health and Safety Executive (HSE) ‘lifting and lowering risk filter’ to determine whether there was a ‘risk of injury’.
In summary, the Manual Handling Operations 1992 require an employer to make a suitable and sufficient assessment of those manual handling operations which involve a risk of injury and where a risk assessment is required, to take appropriate steps to reduce that risk to the lowest level reasonably practicable. The issue for the Court of Appeal in this case to consider was whether the task of lifting an oxygen box created a risk of injury.
The appeal judges referred to the HSE publication ‘Manual Handling ‘ (L23) which provides guidance for employers on how to apply the Manual Handling Operations Regulations 1992 and in particular the lifting and lowering risk filter contained in the Appendix. The filter is a tool designed to help employers assess whether a manual handling task creates a risk of injury and is set out below.
THE LIFTING AND LOWERING FILTER
The HSE guidance states that the filter can be used to identify tasks that are ‘low risk’.
Each box zone in the diagram contains a different filter value for men and women when lifting and lowering. If the lifting or lowering exceeds the limits set out in the box zones then the HSE state that a full and detailed risk assessment is required.
The trial judge found that the oxygen box was designed to be lifted using the handle on the top of it. Mrs Stewart was unable to explain why she had not used it. She had previously received manual handling training.
The trial judge determined that had Mrs Stewart used the handle then by reference to the above filter the oxygen box was likely to have been at mid-lower leg height at least for most female employees and at the top end on the 7kg zone or bottom end of the 13kg zone. Appendix 3 of the HSE guidance states that an intermediate weight can be chosen if the operator’s hands are close to a boundary between different box zones. An intermediate weight would have been 10kg, which was in excess of the 7.5-8kg weight of the oxygen box and on that basis the trial judge found that there was no real risk of injury.
The Court of Appeal upheld this finding.
The lifting and lowering filters can be misapplied and misunderstood. The HSE state (para 5 of the Appendix):
- The filters are based partly on data in published scientific literature and partly on practical experience of assessing risks from manual handling. They are pragmatic, tried and tested and set out approximate boundaries that will provide a reasonable level of protection to around 95% of working men and women. However, you must not regard them as safe weight limits for lifting. Because there are very many factors that influence risk, there is no weight threshold where manual handling operations change from ‘safe’ to ‘unsafe’. Even operations lying within the boundaries of the filters should be avoided or made less demanding wherever it is reasonably practicable to do so.
It is also important to remember that the lifting and lowering filter makes some important assumptions (see para 13 of the Appendix):
- the load is easy to grasp with both hands;
- the operation takes place in reasonable working conditions;
- the handler is in a stable body position.
The precise details of the oxygen box, the position of the handle and of the lift itself are not clear from the judgment but one would assume that if the oxygen box had a handle then it was designed to be lifted one handed - not two handed. If that is right then a full and detailed risk assessment should have been undertaken as the HSE filter was not applicable. Single handed lifting can increase the risk of injury due to the asymmetry of the lift leading to twisting or rotation of the trunk.
It is debatable whether the outcome of the case might have been decided differently if the task was indeed a single handed lift requiring a full risk assessment. The Court had noted that the oxygen box was a standard piece of equipment that had been in use over a long period without reported complaint. The weight of the oxygen box whilst not excessive was significant. A full risk assessment would have left the Trust open to criticism since it appeared that the oxygen box was stored routinely on the floor of the Midwives' room and an obvious means to reduce the risk would have been to provide for storage at a higher level.